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RoutledgeHandbookonHumanRig-WeiZhi.pdf
1
Routledge Handbook on Human
Rights and the Middle East and
North Africa
Recent events su as ‘Iran’s Green Revolution’ and the ‘Arab
Uprisings’ have exploded notions that human rights are irrelevant to
Middle Eastern and North African politics. Increasingly seen as a
global concern, human rights are at the fulcrum of the region’s on-
the-ground politics, transnational intellectual debates, and global
political intersections.
e Routledge Handbook on Human Rights and the Middle East and
North Africa:
emphasises the need to consider human rights in all their
dimensions, rather than solely focusing on the political
dimension, in order to understand the structural reasons
behind the persistence of human rights violations;
explores the various frameworks in whi to consider human
rights—conceptual, political and transnational/international;
discusses issue areas subject to particularly intense debate—
gender, religion, sexuality, transitions and accountability;
contains contributions from perspectives that span from
global theory to grassroots reflections, emphasising the need
for academic work on human rights to seriously engage with
the thoughts and practices of those working on the ground.
2
A multidisciplinary approa from solars with a wide range of
expertise allows the book to capture the complex dynamics by whi
human rights have had, or could have, an impact on Middle Eastern
and North African politics. is book will therefore be a key
resource for students and solars of Middle Eastern and North
African politics and society, as well as anyone with a concern for
Human Rights across the globe.
Anthony Tirado Chase is a Professor in International Relations at
Occidental College, USA. Professor Chase is a theoretician of human
rights, most oen in the context of the Middle East.
3
Routledge Handbook on Human
Rights and the Middle East and
North Africa
Edited by Anthony Tirado Chase
4
First published 2017
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
5
711 ird Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business © 2017
Anthony Tirado Chase
e right of the editor to be identified as the author of the editorial material, and of the
authors for their individual apters, has been asserted in accordance with sections 77 and
78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any
form or by any electronic, meanical, or other means, now known or hereaer invented,
including photocopying and recording, or in any information storage or retrieval system,
without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered trademarks,
and are used only for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data A catalogue record for this book is
available from the British Library Library of Congress Cataloging in Publication Data
Names: Chase, Anthony Tirado, editor.
Title: Routledge handbook on human rights and the Middle East and North Africa / edited
by Anthony Tirado Chase.
Other titles: Handbook on human rights and the Middle East and North Africa
Description: Milton Park, Abingdon, Oxon; New York, NY: Routledge, 2017. |
Includes bibliographical references and index.
Identifiers: LCCN 2016021351 | ISBN 9781138807679 (hardba) |
ISBN 9781315750972 (ebook)
Subjects: LCSH: Human rights–Middle East. |
Human rights–Africa, North.
Classification: LCC JC599.M53 R68 2017 | DDC 323.0956–dc23
LC record available at hps://lccn.loc.gov/2016021351
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ISBN: 978-1-13880767-9 (hbk) ISBN: 978-1-31575097-2 (ebk) Typeset in Bembo
by Sunrise Seing Ltd, Brixham, UK
7
anks
Many thanks to my resear assistants Keith Jones and Beebe
Sanders for their invaluable help in editing this volume.
8
Dedication
Dedicated to the sweet memory of Ruth Flora Tirado Chase. My
mother passed on the sense that nothing is worth doing unless it is
an epic adventure. is book—and all that led to its creation—is
saturated with that spirit. Death is not an end; the spirit lives on
through the acts it continues to inspire.
Front cover artist: Ganzeer
Cover art: “Of course, Harara, 2014”
Art description: A portrait of Ahmed Harara. Harara is an Egyptian
activist who lost one eye to a bullet during the January 28, 2011
“Friday of Anger” protests. ese protests were part of what led to
Hosni Mubarak’s fall from power on February 11, 2011. Harara lost
his other eye during anti-military protests near the Ministry of
Interior on November 19, 2011. at day’s clashes are known as the
“Bale of the Eyes of Freedom,” as Harara was just one of many
protestors to lose eyes to sniper fire.
Overlaid in red on Harara’s portrait is the o-repeated Egyptian
army slogan “e army has, of course, protected the revolution.”
Designed in Cairo, Egypt, 2013.
9
Contents
Cover
Title
Copyright
Dedication
CONTENTS
Editor biography
List of contributors
PART I Frameworks
SECTION I Introduction and overview
1 Human rights and the Middle East and
North Africa: indivisibility, social rights,
and structural ange
Anthony Tirado Chase
SECTION II A conceptual framework: political,
economic, and cultural rights in the Middle East
and North Africa
2 Political legitimacy, contingency, and
rights in the Middle East and North Africa
Hussein Banai
3 Economic rights in the Middle East and
North Africa
Zehra F. Kabasakal Arat
10
4 Cultural rights in the Middle East and
North Africa: art, revolution, and
repression
Mark LeVine
SECTION III A political framework: intersecting
human rights and governance crises in the
Middle East and North Africa
5 Genocide in the contemporary Middle
East: a historical and comparative regional
perspective
Martin Shaw
6 e ISIS crisis and the broken politics of
the Arab World: a framework for
understanding Radical Islamism
Nader Hashemi
7 e impact of the AKP on human rights
in Turkey: one step forward, two steps
ba
Turan Kayaoglu
8 e politics of human rights in Iran
since the Green Movement
Shadi Mokhtari and Neda Nazmi
9 Narrating law: Israel and the Occupied
Territories
Kathleen Cavanaugh
10 e United States and Israeli violations
of international humanitarian law
Stephen Zunes
SECTION IV A transnational and international
framework: human rights beyond borders
11
11 Rival transnational advocacy networks
and Middle East politics at the U.N.
Human Rights Council
Laura K. Landolt
12 Redefining rights: Organization of
Islamic Cooperation aempts to reshape
values in the U.N. human rights system
Ann Mayer
13 Human rights, youth, and tenology:
agents of ange?
Mahmood Monshipouri
14 Rights, refugees, and the case of Syria:
what do human rights offer?
Kathleen Hamill
PART II Issues
SECTION V Gender and human rights in the
Middle East and North Africa
15 Colliding rights and wrongs: intimate
labor, health, human rights, and the state
in the Gulf
Pardis Mahdavi
16 Turning ba the clo: population
policy and human rights in Iran
Homa Hoodfar
17 Women’s rights in the Middle East:
constitutions and consequences
Anicée Van Engeland
18 e Arab uprisings and the future of
human rights
Micheline Ishay
12
SECTION VI Religion and human rights in the
Middle East and North Africa
19 Shari`ah and human rights
Khaled Abou El Fadl
20 Islam, the principle of subjectivity, and
individual human rights
Barbara Ann Rieffer-Flanagan
21 e OIC, human rights, and religion:
rejection, reconciliation, or
reconceptualization?
Marie Juul Petersen
22 Rhetoric versus reality: American
foreign policy and religious freedom in
the Middle East
Barbara Ann Rieffer-Flanagan
SECTION VII Transitions and accountability in
the Middle East and North Africa
23 Core transitional justice debates in the
Middle East and beyond
Eric Wiebelhaus-Brahm
24 Courts as a tool in transitions: lessons
from the special tribunal for Lebanon
Chandra Lekha Sriram
25 Lessons on transitioning from
authoritarianism: pitfalls and promise
from Tunisia’s experience
Rim El Gantri
26 e impact of impunity on violating
cultural rights in Morocco
Osire Glacier
13
PART III Conclusions: global theory and grassroots
reflections
SECTION VIII Conclusions from a global
viewpoint: theoretical justifications and
contestations around human rights
27 International human rights at 70: has
the Enlightenment project run aground?
David P. Forsythe
28 On the local relevance of human rights
Koen de Feyter
29 Israel/Palestine, human rights and
domination
Nicola Perugini and Neve Gordon
30 e quest for constructive criticism:
critical approaes to human rights
Alison Brysk
31 Making human rights ‘universals’ from
the ground up?
Lisa S. Alfredson
SECTION IX Conclusions from a grassroots
viewpoint: reflections on dynamics around
struggles for human rights in the Middle East
and North Africa
32 Reflections on three decades of human
rights work in the Arab region
Fateh Azzam
33 Egypt 2011–15: how can a democratic
revolution fail to improve human rights
conditions?
Amr Hamzawy
14
34 Reflections on human rights before and
aer the Arab Spring
Bahey eldin Hassan
35 Human rights, law and politics: a
reflection on human rights work in the
Middle East and North Africa
Lynn Welchman
Index
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Editor Biography
Anthony Tirado Chase is a Professor in International Relations at
Occidental College, USA. Professor Chase is a theoretician of human
rights, most oen in the context of the Middle East. His most recent
article is “Human Rights Contestations: Sexual Orientation and
Gender Identity” in International Journal of Human Rights (April,
2016). His previous books are Human Rights, Revolution, and Reform
in the Muslim World (2012) and Human Rights in the Arab World:
Independent Voices (co-edited with Amr Hamzawy, 2006).
16
Contributors
Dr. Khaled Abou El Fadl is the Omar and Azmeralda Alfi
Distinguished Professor in Islamic Law at the University of
California, Los Angeles Sool of Law. He is the author of fourteen
books on various topics in Islam and Islamic law, including his most
recent work Reasoning with God: Reclaiming Shari`ah in the Modern
Age (Rowman & Lilefield, 2014).
Lisa S. Alfredson is an Assistant Professor at the University of
Pisburgh Graduate Sool of Public and International Affairs. She
is the author of the book, Creating Human Rights (University of
Pennsylvania Press, 2008), as well as numerous policy reports for
international human rights organizations.
Zehra F. Kabasakal Arat is Professor of Political Science at the
University of Connecticut. Exploring both theoretical and empirical
questions of human rights, with an emphasis on women’s rights and
their interpretation/application in Islamic and Turkish contexts, she
published numerous books and articles on human rights and their
relation to democracy, development and globalization.
Fateh Azzam is the Director of the Asfari Institute for Civil Society
and Citizenship, and Senior Policy Fellow at the Issam Fares Institute
for Public Policy and International Relations, both at the American
University in Beirut. He previously served as the Middle East
Regional Representative of the U.N. High Commissioner for Human
Rights, Director of Forced Migration and Refugee Studies at the
17
American University in Cairo, Human Rights Program Officer at the
Ford Foundation in Lagos and Cairo, and Director of the Palestinian
organization Al-Haq. He led the process of establishing the Arab
Human Rights Fund.
Hussein Banai is an Assistant Professor in the Department of
International Studies at the Sool of Global and International
Studies at Indiana University.
Alison Brysk is Melliamp Chair of Global Governance at the
University of California, Santa Barbara. She is the author and editor
of ten volumes on international human rights.
Kathleen Cavanaugh is socio-legal solar and currently a Lecturer
in the Faculty of Law, Irish Centre for Human Rights, National
University of Ireland, Galway.
Koen De Feyter is Professor of International Law at the Resear
Group on Law and Development of the University of Antwerp,
Belgium.
Rim El Gantri is a transitional justice expert who is currently head
of office at the International Center for Transitional Justice, Nepal.
She led the ICTJ Tunisia program for about five years. Notable
among her published writings is “Tunisia in Transition: One Year
Aer the Creation of the Truth and Dignity Commission.”
David P. Forsythe is University Professor and Charles J. Ma
Distinguished Professor of Political Science Emeritus, at the
University of Nebraska-Lincoln. He taught various aspects of
International Relations for forty-two years, with special aention to
human rights and humanitarian affairs.
18
Osire Glacier teaes in the Department of Politics and
International Studies at Bishop’s University. She is the author of
Universal Rights, Systemic Violations and Cultural Relativism in
Morocco (New York: Palgrave-Macmillan, 2013); and Political Women
in Morocco, Then and Now (Trenton: Africa World Press, 2013).
Neve Gordon is a Professor of Politics at Ben-Gurion University in
Israel and is the author of Israel’s Occupation (California: University
of California Press, 2008) and co-author of The Human Right to
Dominate (New York: Oxford University Press, 2015).
Kathleen Hamill is an independent human rights lawyer and
Visiting Solar and Fellow at Harvard’s FXB Center for Health and
Human Rights. Hamill is also affiliated with the Fleter Sool of
Law and Diplomacy at Tus University as an Adjunct Assistant
Professor.
Amr Hamzawy is a Professor at both American University in Cairo,
and Cairo University. Dr. Hamzawy is a former member of both the
Egyptian People’s Assembly and the Egyptian National Council for
Human Rights, as well as author of, A Margin for Democracy in
Egypt – The Story of An Unsuccessful Transition (in Arabic), among
other books.
Nader Hashemi is an Associate Professor of Middle East and Islamic
Politics and the Director of the Center for Middle East Studies at the
University of Denver’s Josef Korbel Sool of International Studies.
Bahey eldin Hassan is the Director of the Cairo Institute for Human
Rights Studies. He has authored and edited many books, apters,
and articles on human rights in the Arab region.
Homa Hoodfar is Professor of Anthropology at Concordia
University. Her primary resear and expertise lies in the
19
intersection of political economy, gender and development and
women’s movements and electoral politics in the Middle East.
Mieline Ishay is Professor of International Studies and Human
Rights at the Korbel Sool of International Studies at the University
of Denver. She is the author and editor of numerous books, including
Internationalism and Its Betrayal, The Nationalism Reader, The
History of Human Rights: From Ancient Times to the Era of
Globalization, and The Human Rights Reader.
Turan Kayaoglu is a Professor of International Relations at the
Sool of Interdisciplinary Arts and Sciences, University of
Washington, Tacoma. He is the Editor-in-Chief of Muslim World
Journal of Human Rights.
Laura K. Landolt is Associate Professor of Political Science at
Oakland University. She examines relationships between state power
and human rights advocacy.
Mark LeVine is Professor of Modern Middle Eastern History at
University of California, Irvine, and a Distinguished Visiting
Professor at Lund University’s Center for Middle Eastern Studies. He
is currently helping to lead a resear team with the American
University of Beirut to study the evolution of human rights
discourses in the Arab world.
Pardis Mahdavi, PhD, is Associate Professor at Pomona College and
director of its Pacific Basin Institute. Her resear interests include
gendered labor, human traffiing, migration, sexuality, human
rights, youth culture, transnational feminism and public health in
the context of anging global and political structures.
Ann Elizabeth Mayer is an Emeritus Associate Professor of Legal
Studies and Business Ethics at the Wharton Sool of the University
20
of Pennsylvania. Her resear areas include Islamic law in the
contemporary Middle East and North Africa and international
human rights law, and the fih edition of her book Islam and
Human Rights was published in 2012.
Shadi Mokhtari is an Assistant Professor at the Sool of
International Service at American University. Her resear focuses
on the local and international politics of human rights in the Middle
East.
Mahmood Monshipouri teaes Middle Eastern Politics at San
Francisco State University and University of California, Berkeley. He
is editor, most recently, of Information Politics, Protests, and Human
Rights in the Digital Age (New York: Cambridge University Press,
2016) and Inside the Islamic Republic: Social Change in Post-
Khomeini Iran, (London: Hurst & Company, forthcoming).
Neda Nazmi is an expert in Iranian politics and civil society
development. She holds Masters degrees from American University
and Allameh Tabataba`i University, and a BA in Political Science
from Tehran University.
Nicola Perugini is Mellon Postdoctoral Fellow at Brown University
and co-author of The Human Right to Dominate (New York: Oxford
University Press, 2015).
Marie Juul Petersen is a sociologist of religion with a PhD from
Copenhagen University. She works at the Danish Institute for
Human Rights as a senior researer.
Barbara Rieffer-Flanagan is a Professor of Political Science at
Central Washington University. Her resear and teaing focus on
the intersection of religion, politics and human rights.
21
Martin Shaw is a sociologist of global politics, war and genocide. He
is Resear Professor at the Institut Barcelona d`Estudis
Internacionals, Professorial Fellow in International Relations and
Human Rights at the University of Roehampton, London, and
Emeritus Professor of the University of Sussex.
Chandra Lekha Sriram is a solar of human rights and peace
processes, and has conducted resear globally, including in
Lebanon. She is Professor of International Law and International
Relations and Director of the Centre on Human Rights in Conflict at
the University of East London.
Bassam Tibi, born in Damascus, was Professor of International
Relations until his retirement in 2009 from the University of
Göingen. He also taught and researed at eighteen further
universities including Harvard, Princeton, Yale and the latest,
Cornell University, where he acted as A. D. White Professor between
2006 and 2010.
Anicée Van Engeland is a Resear Fellow at the Oxford Centre for
Socio-Legal Studies and a Lecturer in law and religious studies at
Cardiff University.
Lynn Welman is Professor of Law in the Middle East and North
Africa at SOAS, University of London. Prior to becoming an
academic she worked with non-governmental organizations (NGOs)
in the Arab human rights movement, mostly in Palestine but also
elsewhere in the Middle East and North Africa, an engagement she
has sought to maintain since joining SOAS.
Eric Wiebelhaus-Brahm is Assistant Professor of Political Science
at the University of Arkansas at Lile Ro. His resear interests
include transitional justice, human rights, post-conflict
reconstruction, and democratization.
22
Stephen Zunes is a Professor of Politics and coordinator of Middle
Eastern Studies at the University of San Francisco. His resear focus
includes human rights, U.S. foreign policy, strategic nonviolent
action, and Middle Eastern/North African politics.
23
Part I
Frameworks
24
Section I
Introduction and overview
25
1
Human Rights and the Middle East
and North Africa
Indivisibility, social rights, and structural
ange
Anthony Tirado Chase
26
Introduction
In conceptualizing this Handbook, I have sought to highlight original
solarship from authors with a record of innovative approaes to
human rights in the Middle East and North Africa (MENA). e goal
in doing so is simple: to capture in ways that cannot be done in
traditional solarly approaes the complex dynamics by whi
human rights have had or could have an impact on MENA politics.
is is not an abstract goal. e stakes in this Handbook’s
intellectual conversations are high at a time in whi recent popular
uprisings inflected by human rights principles have been violently
repressed everywhere from Iran, across the Arab world, and in
Turkey. In their place, long dominant authoritarianisms are
resurgent. ese authoritarianisms vary among secular, ethnic,
and/or Islamist justifications, but share a common foundation in
some form of nationalist sectarianism. e region’s resurgent
authoritarianisms show a resilience and ability to morph into
progressively more brutal systems of power that leave many with
the sense that there is no alternative.
is pessimism is quite reasonable given the MENA’s post-
colonial inheritance of despotic power structures, current realities of
failed governance that have exacerbated divisions along many fault
lines, and extra-regional forces that consistently reinforce anti-
pluralistic forces out of a misbegoen sense of “self-interest.”
Nonetheless, it is also worth remembering that human rights have
long been part of informing subterranean articulations of
alternatives to dominant forms of culture, economics, politics, and
society in the MENA. e saliency of these alternatives emerged
quite visibly—in artistic allenge, economic rebellion, political
rebellion, and social resistance—during the popular uprisings that
27
swept the region from 2009 to 2013. But, now that the hope
represented by those uprisings seems a distant memory, there has
been a return by many in academic and policy-making circles to
status quo thinking that assumes the MENA is solely defined by
oices between competing patriaral authoritarianisms. Saudi
monarical Wahhabism or Iranian Shi`a theocratism? Egyptian
secular military rule or anti-pluralist Islamisms? Syrian-style
“stability” or fiefdoms ruled by warlords? ese and other su
binaries are not just false oices, they are dangerously misleading
ones. Lazily taking them as a frame effaces other possibilities,
serving the purposes of elites invested in their perpetuation with
devastating results for the region’s peoples, societies, and states, as
well as the broader regional and global order.
Most specific to this Handbook’s purposes, those frames have
limited thought about even the possibility of alternatives to the
status quo. Su possibilities have, nonetheless, persisted in many
domains. is introduction’s overview of the Handbook’s three parts,
nine sections, and thirty-five apters shows how human rights, in
particular, have become interwoven with discourses that reject false
oices between exclusivist nationalisms. ese human rights-
inflected discourses have sought, instead, to somehow make space in
the MENA’s political, economic, cultural, and social structures for
pluralisms of different sorts. I will conclude this introductory apter
by aempting to show the importance of pluralism in the social
domain, with particular reference to sexual orientation and gender
identity-related (SOGI) rights. I argue that connecting social
resistances to human rights is not just important in isolation; it is
connected to sustaining interconnected resistances in the cultural,
economic, and political rights’ spheres.
In that light, the goal in this Handbook of coming to terms with
human rights’ potential impacts is ambitious, but more realistic than
it might appear at first glance. It is, in essence, an aempt to make
sense of how rights have been part of varieties of resistances against
28
dominant power structures—local, domestic, regional, and
international—and, beyond that, what the variables are that will
determine if they may do so more successfully in the future.
29
Pushing human rights solarship into
indivisibility, intersections,
multidisciplinarity, and beyond
Aempting to accomplish this goal has meant calling on solars
who in diverse ways—sometimes in disagreement with ea other
and, indeed, in disagreement with my own views—are at the cuing
edge in thought about what human rights are, how they can be
relevant to the MENA, and ways in whi specific contexts in the
MENA condition whether human rights will or will not have an
impact. e contributors were osen to represent a range of
disciplines as well as regional and thematic expertise. Part I of the
Handbook includes sections that, aer Section I’s introduction,
further situate the reader within frameworks for thinking about
human rights in the MENA. Section II gives a conceptual framework
inclusive of different categories of human rights—from social rights
to political, economic, and cultural rights. Section III gives a political
framework inclusive of key countries, sub-regions, and the U.S. as an
omnipresent external hegemon. Section IV gives a transnational and
international framework that makes clear the intersecting levels in
global politics through whi dynamics around human rights play
out, and how powerful states increasingly contest human rights at
all of these levels. Part II’s sections focus the reader on issue areas
that have been subject to particularly intense debate. Section V
explores gender as a key baleground in bales over human rights’
relevance in the MENA. Section VI gives different points of view on
the intersections of religion and human rights in the predominantly
Muslim MENA. Section VII takes on transitions and accountability
and the overaring question of whether or not normative demands
30
for ange can be sustained through representative processes and
institutions.
Part III contains two concluding sections that end the Handbook
in a particularly distinctive manner. Section VIII’s Conclusions from
a global viewpoint: theoretical justifications and contestations
around human rights calls on human rights theoreticians with a
global perspective to shed light on human rights in the MENA. e
MENA is not an insular region disconnected from global currents,
including those in academic circles. To the contrary, academic
conversations about human rights’ history, relation to the state, and
their contradictory dynamics in many parts of the world can and
should inform solarship on human rights and the MENA. One
emphasis in recent human rights solarship, as evidenced in these
apters, is a move beyond traditional linear histories of human
rights that see them as having progressively grown out of
Enlightenment thought and post-WWII history. A top down
diffusion of human rights from a singular foundation—philosophical
or historical—is increasingly seen as less important to human rights’
resonance (or la of resonance) than the degree to whi human
rights have been malleable enough to be seized and repurposed as
useful tools to grassroots struggles in many different contexts around
the globe.
is is directly relevant to the MENA and, as su, informs the
conceptualization of Section IX’sConclusions from a grassroots
viewpoint: reflections on dynamics around struggles for human
rights in the Middle East and North Africa. ese apters come
from solar-practitioners who reflect on their decades of work on
human rights in the region. It is a key premise of this Handbook that
academic work on human rights in the MENA should more seriously
engage with the reflections of those working on the ground. is is
all too oen missing in theoretical work on human rights in general
and, most egregiously, on human rights in the MENA. Lynn
Welman pertinently concludes this section and this Handbook
31
with the observation that academics need to be open to being
‘surprised’ —that is to having their theoretical assumptions
overturned by taking seriously the normative commitments and
intellectual analyses of those on the ground. It is my hope that the
Handbook consistently highlights precisely these sorts of unexpected
surprises that flow out of tangible engagements with human rights
in the MENA.
As a starting point in opening the path to finding su surprises,
the Handbook’s approa is one that is informed throughout by
themes of indivisibility, intersections (and, in this apter’s
conclusion, intersectionality), and multidisciplinarity. Indivisibility,
in particular, is key to any serious human rights solarship, yet too
oen we still see human rights in the MENA discussed in segmented
categories. Virtually any rights issue, to the contrary, can and should
be contextualized in multiple dimensions rather than as simply
within one category su as ‘political.’ To understand the structural
reasons behind the persistence of human rights’ violations, it is
essential to recognize that these violations take place in the context
of systems of power that function simultaneously in the cultural,
economic, political, and social spheres. Resistance against su
violations, in parallel, has been most powerful when it has
functioned across these spheres. Intellectual accountings of human
rights must take into account, therefore, all of these dimensions if
they are to make sense of controversies and contestations that
revolve around human rights. As will be seen, this is a recurring
theme throughout the Handbook.
Beyond rights’ indivisibility, this Handbook’s apters are also
informed by a focus on intersections—that is, how it is that human
rights intersect with a range of issues and, more broadly, how rights’
violations on su issues feed into domestic crises in governance and
security. e theoretical assumption in this regard is that human
rights are an urgent maer even from the most realpolitik of
perspectives. Rights’ violations are not discrete and disconnected
32
but, rather, are intimately related to many of the globe’s geopolitical
crises that—from wars without borders to global refugee flows—have
their roots in systematic human rights’ violations. Given the
destructive regional and global impacts of su crises, it is crucial to
shine a light on how rights’ violations are at their heart.
As these themes of indivisibility and intersections came to define
the Handbook, it also became clear that in order to illuminate them
it would be necessary to call on the resources of many academic
disciplines rather than the narrow focus of just one or two fields.
is Handbook’s apters, therefore, come from solars trained in a
variety of solarly traditions. is brings to bear multi-disciplinary
perspectives on human rights and the MENA, helping to bring out
rights’ evolutions in different dimensions and their impacts on
diverse issues.
Aer a review of the conceptual themes and other intellectual
threads through whi this Handbook is organized, as noted I will
conclude this introduction by reference to SOGI-related rights. If we
take seriously both indivisibility and not just intersections but
intersectionality in the light of multi-disciplinary solarship, su
‘social’ rights are clearly not marginal, but rather vital to
envisioning longer lasting structural ange in cultural, economic,
political, as well as social life.
33
emes and threads in conceptualizing
contributions to human rights and the Middle
East and North Africa
Section II
A conceptual framework: political, economic, and cultural
rights in the Middle East and North Africa
I have already noted both this Handbook’s defining organizational
frameworks and recurring themes of indivisibility, intersections, and
multidisciplinarity. ese themes and other conceptual threads were
used to organize and hopefully give coherence to ea of the
Handbook’s nine sections. Section II, for example, is informed by the
notion of indivisibility that I have already started to outline in this
apter (and whi will extend into my closing discussion of social
rights). Most academic discussions of human rights in the MENA
have been focused on human rights’ political dimensions. is
Handbook departs from that by emphasizing human rights in all
their dimensions. is indivisibility of rights’ categories has long
been a key contention in human rights theory. As this literature
makes clear, rights are best conceptualized as mutually constitutive
rather than divisible into categories with some sort of hierary of
importance. e reasons behind their violation are oen
interconnected, as are the reasons behind the gains in
implementation. What is key is identifying the structures of power
whose survival depends on systematic rights’ violations. is can
both reveal the incentives behind their maintenance and why
34
allenging su regimes needs to recognize the interconnections
among a wide range of violations, rather than focus on issues in
isolation.
is introductory apter and Section II’s three apters
conceptually frame the Handbook by making clear how all
categories of rights are essential to thinking about human rights and
the MENA. Huss Banai’s “Political legitimacy, contingency, and
rights in the Middle East and North Africa” notes that the
vocabulary of the Arab uprisings— “cries for freedom, equality,
accountability, respect for rights and dignity, and justice” —is shared
with many other uprisings around the globe. What have to be
recognized, however, are the fundamentally distinct contexts in
whi su claims have been made in the Arab world. ese
contexts reveal that status quo regimes in the region may la
popular legitimacy, but nonetheless have enough political legitimacy
with key sectors (and external allies) to withstand popular calls for
democracy and rights. Zehra Arat’s “Economic rights in the Middle
East and North Africa” shows how issues of economic justice are as
important to peoples in the MENA as political justice. Arat stresses
the interdependency of rights and the necessity of more equitable
economic development in MENA countries if there are to be
solutions to its political crises. e example of corruption makes this
point: economic elites use closed political structures as a shield to
enable both their own enriment and the impoverishment of their
societies. Transparency and accountability to counter that is an
urgent maer in the political and economic spheres equally.
Mark LeVine’s “Cultural rights in the Middle East: art, revolution,
and repression” brings into the discussion MENA governments’
silencing of cultural expression and political spee and how this is
essential to sustaining systems of economic and political exclusion. It
follows that resistance must be as mu cultural as economic and
political. LeVine argues that uprisings across the MENA put this into
stunning relief: art was, in short, an essential constitutive element in
35
uprisings across the region, showing its revolutionary potential. e
counterrevolutions that have followed have taken as their essential
starting point, therefore, cultural repression and suppression of free
spee. ese cultural rights’ violations are problematic in isolation,
but also must be seen as fundamentally about sustaining broader
power structures based in economic hieraries, political elites, and
socially dominant groups.
Lastly, this apter concludes by extending into social rights with
an examination of how (admiedly controversial) SOGI-related
rights are key to conceptualizing identity in a more pluralistic
manner. is social pluralism is inseparable from pluralisms in other
domains, so should not be dismissed as secondary in aempts to
undermine authoritarian power structures. Collectively, Section I
and Section II’s framing of this Handbook with apters on social,
political, economic, and cultural rights makes clear how ea of
these categories are, in themselves, insufficient. It is only by taking
into account how they are mutually constituted—that is, indivisible—
that we can begin to make sense of human rights’ shiing place in
the MENA and their potential to undergird movements for structural
ange.
Section III
A political framework: intersecting human rights and
governance crises in the Middle East and North Africa
is Handbook’s apters represent a depth and breadth in academic
contributions on the intersections of human rights with broader
MENA politics that has not been conceivable until quite recently.
is depth and breadth is a signifier of several important intellectual
developments. Foremost among these developments is, simply, an
36
increasing recognition that these intersections are of vital
importance to regional and global politics. Even casual observers
have noted that Iran’s Green Movement (2009), the Arab uprisings
(2010–11), and Turkey’s Gezi Park protests (2013) exploded notions—
surprisingly common until quite recently—that human rights are
irrelevant to the MENA’s politics. To the contrary, this era of
uprisings across the region has shown that human rights (and their
violation) are at the fulcrum of ongoing governance and security
crises in the MENA.
Intellectual debates and academic explorations of how human
rights intersect with ongoing crises in the MENA are, thus, the
connecting theme of Section III’s six apters. ese apters
collectively give an overview of political dynamics regionally and in
some of its key countries. ese specific political histories make clear
how both general and specific human rights issues are essential to
understanding the reasons behind su ongoing crises. ese
intersections are not just about domestic human rights’ violations,
but extend to an external hegemon su as the United States
pursuing policies that have consistently reinforced a spiral of
despotic, unaccountable governance in the region.
e history of these sorts of intersections is given an overview in
Section III’s first apter by Martin Shaw, “Genocide in the
contemporary middle-east: a historical and comparative regional
perspective.” Shaw argues that well-known genocides—su as those
of Armenians in 1915, Kurds in 1988, and recent Islamic State
atrocities—should not obscure wider paerns of genocidal violence
in the Middle East. Shaw contends that the genocidal agenda of the
Islamic State is exceptional only in its explicit sectarianism. From the
Islamic State to the Syrian and Iraqi civil wars, the divide between
Sunni Gulf states and Shi`a Iran, and Israel’s expansion into the
West Bank, he sees similar sectarianisms defining the MENA’s
politics as part of a wider processes of homogenizing populations
and removing unwanted Others.
37
How these homogenizing processes are at war with pre-existing
pluralisms is developed in specific contemporary contexts in Section
III’s other apters. Nader Hashemi has perhaps the broadest take on
this in his “e ISIS crisis and the broken politics of the Arab world:
A framework for understanding radical Islamism.” Hashemi argues
that ISIS reflects fragmented social conditions that have emerged out
of a long crisis of bad governance in the Arab world. In short, as he
puts it, “human rights and democracy, or rather, their general
absence in the Arab world, can best explain the rise and expansion
of ISIS.” Human rights’ violations and political authoritarianism have
led to a destructive cycle of state failure, civil wars, and the rise of
extremist ideologies. Hashemi points out that during the Arab
uprisings violent Islamist groups were rendered impotent as the
possibility briefly emerged of peaceful political ange through
participatory pluralism. Rolling ba this opening led directly to an
increase in extremist violence—that is, when democratic openings
are closed radicalism thrives. Until this political-social context in the
Arab world is anged, the spiral of worsening state failure and
sectarian conflict will continue.
Turan Kayaoglu’s “e impact of the AKP on human rights in
Turkey: one step forward, two steps ba” reflects a disappointing
turn of history. Turkey’s AKP in its first years in power seemed to
represent an advance both for human rights and for the idea that a
moderate Islamist party and human rights principles are perfectly
compatible. Erdogan’s AKP oversaw a rollba of military power
and openings toward Kurds and a general social openness that
ranged from more freedom for the religiously pious to the
emergence of LGBT organizations in Turkey. e AKP experience
shows, however, that selective gains for human rights without
institutional meanisms and internalization of human rights by
party elites make su gains easily reversible. Recent years have seen
Erdogan increasingly assert one-man power. Despite democratic
mobilizations and the Gezi Park protests, the result has been bier
38
reversals for forces of democratic pluralism, with minorities of all
sorts—ethnic, ideological, and sexual—increasingly targeted by a
government that uses sectarianism to solidify its power.
Shadi Mokhtari’s and Neda Nazmi’s “e politics of human rights
in Iran Since the Green Movement” narrates a similarly depressing
tale. Iran’s 2009 Green Movement represented a high point for
popular aspirations for more open politics in Iran informed by
human rights, one that could only be repressed by brutal methods
and xenophobic nationalist justifications. Since that repression,
Mokhtari and Nazmi find that human rights allenges to the regime
have since been largely sidelined to those forced into exile, with
domestic human rights mobilizations greatly diminished. e result
in Turkey and Iran has been the resurgence of authoritarian
governance, with both states acting internally and externally in
support of the sort of sectarian politics that Shaw’s apter identifies.
Repressing domestic pluralism has gone hand in hand with
projections of singular nationalism into foreign policy, as seen in
Turkish support for Islamist allies in Syria and aas on Kurds both
inside and outside of Turkey, and Iranian support for Shi`a allies
outside its borders.
Kathleen Cavanaugh’s “Narrating law: Israel and the Occupied
Territories” takes a more theoretical turn, one that reflects
Israel/Palestine as a long-time example of the homogenizing
processes that Shaw discusses. Cavanaugh discusses how
international law has become a baleground over different
narratives regarding that process. One legal ‘truth’ regarding
Israel/Palestine is that this is an issue of the Palestinian human right
to self-determination as well as redress of a broad range of other
rights’ violations to whi Palestinians are subject. is narrative,
however, confronts a competing legal truth: that the actual legal
frame is one of Israel’s sovereign right to maintain its national
security, justifying violations of Palestinian rights. is ‘meta-
conflict,’ in Cavanaugh’s term, is not exclusive to Israel/Palestine,
39
but rather epitomizes bales fought in the legal discursive sphere
around the globe.
Cavanaugh’s argument flows directly into Stephen Zunes’ apter
“e United States and Israeli violations of international
humanitarian law,” whi describes how the United States has
shielded Israel from legal sanctions for violations of human rights
and humanitarian law, specifically in regard to treatment of civilians
and selements in the West Bank. Zunes’ point is larger than just a
critique of the U.S.–Israeli relationship or how the United States,
beyond Israel, prioritizes its military–security relationships in the
region over human security concerns. He argues more broadly that
impunity under a U.S. shield from international law harms the
possibility of reversing processes of ethnic conflict that are
reinforced by human rights’ violations justified by national security.
is is well demonstrated by continued spirals of violence between
Israelis and Palestinians.
ese specific case studies reinforce Shaw’s argument regarding
sectarianism: never absent from MENA politics, it is increasingly a
tool used by states and non-state actors, su as ISIS, to advance
their interests. e power of sectarian identity politics—and the
resources of actors who instrumentally deploy them—has clearly
overwhelmed countervailing democratic pluralist politics with
whi human rights are identified. Globally, wars between states
have been in steady decline since WWII. What has been on the rise
are so-called ‘new wars,’ in Mary Kaldor’s phrase: local conflicts
(oen with a transnational dimension) that are less about grand
causes or ideologies and more about using particular identities and
group solidarities as the basis for staking claims to local turf.1
Genocidal conflicts in the former Yugoslavia and Rwanda to vicious
civil strife from Sri Lanka to Sierra Leone have epitomized su new
wars. For a long time the MENA appeared to be exempt from this
style of warfare as its states were capable of maintaining—at a
bloody cost—the traditional Weberian model of the state
40
monopolizing legitimate authority and violence within a defined
territory. e sorts of crises in the news as I write this in 2016—from
Syria’s refugee crisis to Saudi intervention in Yemen, the
disintegration of state authority across the region, and the rise of the
Islamic State—indicate this is no longer the case. ese sectarian
conflicts have, at their heart, dysfunctions in governance across the
region. ese have spawned instability, civil war, trans-border
conflicts, and a seemingly endless spiral of aos.
Section IV
A transnational and international framework: human rights
beyond borders
e MENA is not an insular region. is Handbook’s apters make
clear that, contrary to how the region is oen portrayed, it is deeply
interconnected with other parts of the world in terms of intellectual
debate, interloing economic structures, transnational political and
social currents, and intersections with both Great Powers and
international organizations. Section IV shows some of the specific
transnational and international factors that impact human rights in
the MENA, with reference to transnational advocacy networks
(TANs), international organizations from the OIC to the United
Nations, and flows of both tenology and refugees. Collectively
they demonstrate how integrated putatively domestic human rights
bales are with larger global politics. More importantly, they
illustrate the multiple levels at whi human rights issues are being
contested and played out, and the conundrums and allenges this
poses.
Laura Landolt’s “Rival transnational advocacy networks and
Middle East politics at the U.N. Human Rights Council,” for example,
41
looks at rival human rights TANs from the MENA—including those
that are allied to or even appendages of states—and how their
contestations are played out at the U.N. Human Rights Council
(HRC). Many MENA states are rhetorically adopting the language of
human rights in ways that are superficially appealing but actually
quite problematic. While this rhetorical adoption may be supportive
of human rights in the abstract (cultural relativist arguments become
immaterial when even MENA states are loudly proclaiming human
rights’ relevance), it is part of a strategic aempt by states to remake
human rights into a tool to serve their own interests, rather than
leaving them to be a tool for the disenfranised. MENA civil society
movements continue to contest this, of course, but have increasingly
lile margin to do so as they are squeezed by states out of both
domestic and international spaces.
Ann Mayer’s “Redefining rights: OIC aempts to reshape values
in the U.N. Human Rights System” makes this point even more
strongly. Mayer discusses the Organization of Islamic Cooperation
(OIC) in the context of its bales at the United Nations over issues
su as free expression and defamation of religion. Mayer shows that
the OIC’s impulses in these bales are primarily political—to justify
internal repression of minorities and dissidents—rather than based in
either human rights or Islamic values. And, more generally, Mayer
makes clear that the real stakes in terms of any acquiescence to the
OIC in this regard is to accept their aempt, in Mayer’s term, to
‘redefine’ human rights in the interests of its leading states.
Mahmood Monshipouri takes on a different element of the
transnational and international context that helps shape human
rights’ realities in the MENA. In “Human rights, youth, and
tenology: Agents of ange?” Monshipouri details how the
increasing acceleration of transnational tenological connections
has allowed disenfranised groups the ability to find a voice. is
evidenced itself during the Arab uprisings with the prominent role
of youth, showing a potential avenue to harness the voices of the
42
disaffected in ways that brought to the fore demands for alternatives
to the status quo. is indicates the intersection of demographic
drivers with pushes for ange. It must be added, however, that this
also evidences itself with the rising appeal of radical Islamisms su
as ISIS, particularly in the wake of the counterrevolutions that
crushed the youthful voices that informed populist uprisings across
the region. Transnational networks have empowered alternatives to
the status quo but, when pluralist alternatives are repressed, it is not
surprising that xenophobic and nihilistic alternatives emerge.
e sour results of that double-edged sword are evidenced in
Kathleen Hamill’s “Rights, refugees, and the case of Syria: What do
human rights offer?” e Syrian refugee crisis is the embodiment of
this Handbook’s concerns: in short, that authoritarianism, mass
human rights’ violations, sectarian rule, and Great Power meddling
and interventions leave in their wake failed states. is spawns on
the ground aos and the transnational spread of both extremism
and refugees. e resulting ill effects are devastating at the state,
regional, and international level. Hamill details the futility as well as
the fragile hope of human rights in this context. Futility in that the
refugee legal regime’s poor definition has been exposed by its
inability to cope with everything from basic protections for refugees
to broader issues of integration, freedom of movement, and access to
services. A fragile hope in that, amid the bleak hopelessness, human
rights norms—while inadequate—have nonetheless been the only
tangible framework for offering a minimum of humane treatment
for Syrian refugees.
is embodies the continued conundrum of human rights norms
and the allenge that they face. In a deeply interconnected world,
the global effects of mass human rights’ violations make clear that,
leaving moral imperatives to the side, there is a self-interested
reason for their implementation. e conundrum is how to make
that self-interest impel sufficient practical action so that there is real
implementation. e allenge lies in Hamill’s argument about the
43
conceptual inadequacy of the refugee regime. Human rights are still
mainly focused on a domestic context—that is, the relation between
a state and those under its jurisdiction. Can the rights regime meet
the allenge to evolve su that it continues to make sense in an
increasingly transnationalized world in whi refugee flows make a
moery of both state legitimacy and notions of an international
community, and in whi a legal regime based in an assumption of
functioning sovereign states seems quaintly out of date? ere is no
doubt about the conceptual relevance of this transnational and
international context; its implementation, however, remains deeply
skety.
Section V
Gender and human rights in the Middle East and North
Africa
Part II includes sections on three particularly contentious issues
regarding human rights and the MENA: gender, religion, and
transitions out of authoritarianism. In terms of multidisciplinarity,
these three sections particularly exemplify how this Handbook draws
from a variety of disciplines in a way that is unprecedented in work
on human rights and the MENA. is multi-disciplinary approa
includes apters by solars from fields as varied as anthropology,
history, international relations, law, philosophy, political science,
religious studies, and sociology. It was only a short time ago that it
would have been difficult to imagine su a multi-disciplinary
approa to these topics. e growth of work across disciplines both
on human rights and on human rights’ intersections with the Middle
East and North Africa, however, has provided the opportunity to
move beyond the intellectual insularity of a discipline-based focus.
44
is multidisciplinarity is particularly relevant to Part II’s focus
on issues, making clear how they can be illuminated by debates in a
range of academic disciplines. Section V on gender and human
rights, for example, includes apters by anthropologists Pardis
Mahdavi and Homa Hoodfar, by socio-legal solar Anicée Van
Engeland, and by historian Mieline Ishay. ese apters are
complementary despite—or perhaps because of—the authors’
differing methodologies and disciplines. Gender is a contested
baleground regarding human rights. is is perhaps especially true
in the MENA, where women are oen constructed as an
undifferentiated symbol of cultural authenticity rather than active
participants in creating their own futures. e section’s two apters
by anthropologists give fine-grained portraits that show how,
beyond stereotypes, women engage in struggles for agency. Section
V’s other two apters take a broader scope to give insight on how
and why ange can happen to further both the rights of women
and, through that, societies as a whole.
Mahdavi’s “Colliding rights and wrongs: Intimate labor, health,
human rights, and the State in the Gulf” brings out the lived realities
of sexual and reproductive health in the context of intimate
ethnographic portraits that show both migrant agency and state
power. Hoodfar’s “Turning ba the clo: Population policy and
human rights in Iran” also has an anthropological perspective that
focuses on close readings of ongoing contestations over reproductive
rights in Iran, connecting more specifically to the ideological reasons
behind the Iran state’s shiing population policies. Van Engeland’s
“Women’s rights in the Middle East: Constitutions and
consequences,” by contrast, takes a broader comparative law
approa to legal frameworks across the Middle East that
systematically disempower women. Mieline Ishay’s “e Arab
uprisings and the future of human rights” has an even broader
sweep. Her apter uses a historical perspective to argue that, despite
the repression of the Arab uprisings, human rights have always
45
progressed out of su setbas to the degree they remain connected
to fundamental freedoms, most accurately gauged by progress in
women’s rights.
ese case studies—whether about micro-realities of migrants and
citizens resisting state power over their sexual and reproductive
agency or broader paerns of legal disenfranisement of women—
show how different disciplines can complement ea other in placing
theoretical debates about gender within lived realities. ey also
make clear both how it is that women are acting to claim agency and
why rights are so essential to making those claims.
Section VI
Religion and Human Rights in the Middle East and North
Africa
Debates about religion and human rights have oen been as intense
as they have been unproductive. is is particularly the case when it
comes to Islam in MENA contexts, where the power of Islamisms
has made religion a point of acute controversy. Section VI’s apters
on religion and human rights bring, again, a multi-disciplinary lens
to this controversy, with contributions from solars grounded in
Islamic Studies, international relations, anthropology, and political
science.
Collectively these apters show how, if sectarian politics are the
dominant issue confronting human rights in the MENA, then
debates about religion need to avoid reifying the notion that Islam
monopolizes the Muslim public sphere. When this sort of reification
occurs—as it oen does in “are Islam and human rights compatible?”
debates—it implicitly reinforces a sectarian assumption that Islam is
the primary variable defining life in the MENA. It must be
46
emphasized, instead, that this tired trope of Islam’s quasi-monopoly
on the public sphere neglects the MENA’s pluralistic normative
environment, one in whi a recent survey shows 52 percent of Arab
youth feel “religion plays too big a role in the Middle East.”2 is is
an environment that continues to be increasingly informed by,
among other factors, heterogeneities, hybrid identities,
intersectionalities, diasporas, local, regional and international
networks, satellite television, cyber spaces, and transnational
currents and normative networks. It is by taking into account these
contradictory currents, rather than denying their complexity, that
space is opened for recognizing how human rights may facilitate
pluralism as a complement rather than a contradiction to Islam.
Khaled Abou El Fadl’s “Shari`ah and human rights” masterfully
dispenses with theological objections to human rights from an
Islamic perspective and, indeed, suggests possibilities for an Islamic
doctrine for realizing a vision of human rights. Abou El Fadl notes
how the human rights movement has gained support in the Muslim
world, coming to be used as a medium for expressing dissent and
making demands on local governments. In particular, he notes that
“the revolutions of the so-called Arab Spring demonstrated the
widespread utilization of the language of rights (huquq)” but that,
nonetheless, there remains tension between traditional Islamic law
and human rights standards in domains su as women’s rights and
freedom of religion. Abou El Fadl argues that, to move beyond that
tension, Muslims must recognize on Islamic grounds that pursuing a
just society includes recognition of the rights due to human beings.
Bassam Tibi takes a very different approa to justifying human
rights in “Islam, the principle of subjectivity, and individual human
rights,” arguing this must be done on cross-cultural foundations as
an Islamic foundation only reifies a notion of Muslim
exceptionalism. Tibi advances a ‘principle of subjectivity’—that is, a
human-centered view of the world rather than a religion-centered
view—as essential to human rights’ expansion in the Muslim world
47
as elsewhere. is brilliantly points to the problem with a simplistic
acquiescence to the normative monopoly of Islam. Tibi points out
that anowledging the importance of religion (whi is, of course,
oen quite important) too oen elides into accepting as
incontestable constructs of Islam projected out by dominant state
elites, su as those in Saudi Arabia, Iran, or Turkey that have the
resources to spread their version of Islam as a form of so power.
is explains why engaging in doctrinal arguments regarding the
place of human rights in Islamic law may be both practically and
theoretically problematic.3 Practically problematic because it risks
reinforcing the centrality of those actors most invested in using
Islam instrumentally to further their interests. And theoretically
problematic because it is unclear that a sear for a theological
foundation for human rights is what is even needed if human rights
are to justify (and, more importantly, expand on) their current
resonance. A sear for a pre-existing foundation in religion may be
a misdirection that makes us miss the everyday cultural, economic,
political, and social reasons that human rights language already
increasingly constitutes many claims for justice around the globe
and in the MENA. It is most likely, in short, that it is those daily
realities that make human rights relevant or irrelevant, not theology.
e last two apters in Section VI put su theoretical arguments
into real world context. Marie Juul Petersen’s “e OIC, human
rights, and religion: Rejection, reconciliation, or
reconceptualization?” returns us to the OIC, now in terms of the
implications of its adopting human rights language. Petersen argues
that the OIC’s establishment in 2011 of its Independent Permanent
Human Rights Commission (IPHRC) could be seen as a shi from its
earlier Cairo Declaration on Human Rights. e Cairo Declaration
declared an Islamic alternative to the rights enshrined in
international human rights documents whereas, rhetorically at least,
the IPHRC represented an evolution toward recognizing
international legal obligations regarding human rights. In practice,
48
however, the OIC has become increasingly insistent on pushing for
‘traditional values’ to be integrated into human rights.
In a narrow sense, this testifies to Saudi Arabia’s use of the OIC as
an instrument to advance its policy preferences—just as Tibi’s
apter indicates states are wont to do. Equally important, it speaks
to a broader point: human rights should not be understood as fixed
concepts, rather they are subject to constant contestations,
allenges, and reconceptualizations. e IPHRC is an important
example in that regard in its aempts to re-make human rights into
a tool to advance exclusivist ideas of religious truth in the service of
Saudi state interests. is illustrates an essential argument from
Carol Vance and Alice Miller: human rights are a not a static entity
but rather, as they say, are both a tool of struggle and a site of
struggle.4 As a site of struggle, human rights are subject to
contesting forces continuing to struggle to define and redefine what
human rights will become. Bales around OIC claims to human
rights language illustrate this, as do other ongoing struggles among
states and non-state actors around how human rights are articulated
and in whose interest.
Barbara Rieffer-Flanagan’s “Rhetoric versus reality: American
foreign policy and religious freedom in the Middle East” connects
these arguments to U.S. foreign policy and broader geopolitical
context around religious freedom or the la thereof. Perceived U.S.
economic or national security interests have led to support for
regimes that violate rights to religious freedom and dissent, most
prominently, once again, Saudi Arabia. Rieffer-Flanagan argues that
this support directly contributes to broader paerns of rights’
violations in the region, violations that are an essential part of the
context that has led to state failure and violent extremism. Insofar as
this has led to domestic, regional, and global instability, it has been
counterproductive to U.S. interests.
Why the United States nonetheless persists in su
counterproductive policies speaks, in part, to the misconceptions
49
about religion to whi ea of the authors in this section refer.
ere is an assumption by U.S. policy-makers that elite-defined
Islam is all-determining in the MENA, rather than an infinitely
diverse entity despite its oen being instrumentally deployed by the
powerful in narrow ways. Contesting these instrumental
deployments by pointing to the MENA’s (religious and non-
religious) diversity is essential to allowing religion to be an
expression of the region’s living pluralism rather than a tool in
repressive efforts to create a mythically united community. Indeed, a
human right to religious freedom and free expression is needed if
religious discourse is to be constituted by pluralistic voices that will
keep it dynamic, rather than static and closed. And human rights
can also be a necessary safeguard ensuring that religion does not
exclude from the public sphere non-religious voices that are an
essential part of the MENA’s diverse mosaic.
Section VII
Transitions and accountability in the Middle East and North
Africa
Post-mortems on the failures of pluralist uprisings across the MENA
oen point to their inability to annel popular support in the streets
into institutional power. is may have been disappointing, but
another thread that runs through this Handbook is that the power of
state institutions (and non-state Islamist institutions) to wait out the
anaric energies released in these uprisings and then return to
power was not at all surprising. Nor has subsequent instability been
terribly surprising, given that one of political science’s few maxims
is that periods of democratic transitions are particularly vulnerable
to conflict and violence.5 Indeed, the problem runs deeper than the
50
return of authoritarian governing structures across the MENA. e
bequest of decades of despotism is ruptured societies with lile basis
for political community, making the failures of democratic hopes
and the emergence of bier sectarian conflict predictable. A true
transformation will require a process both to institutionalize
accountability and, more broadly, to re-create political communities
in traumatically divided state-societies.
is is a tall order. e basic question in transitional justice is how
a state-society can be rebuilt on stable foundations that allow it to
move past the structural and psyological legacy of the previous
order. Processes that have emerged as a means to this end include
lustration (i.e. purges of those associated with the old regime in
order to make possible the emergence of an untainted new regime),
tribunals (i.e. trials for those responsible for human rights’ violations
su that a new order can be based on having done justice for past
wrongs), and truth and reconciliation commissions (i.e. an aempt to
replace retribution with truth-telling as a path to healing bier
wounds).
Section VII concerns these processes in a MENA context, with
apters by authors grounded in political science, international
relations, law, history, and religious studies. e level of human
rights’ violations suffered across the MENA has oen been
downplayed. Beyond a generic recognition that torture and
repression are widespread, there is lile sense of the scope of the
structural violence that exists at the cultural, economic, political, and
social levels. at scope makes clear the difficult path to true
revolutions that reconstitute public spheres in more open, pluralistic
ways. Eric Wiebelhaus-Brahm’s “Core transitional justice debates in
the Middle East and beyond” gives an overview of debates in this
field, from philosophical notions of what is justice to more specific
debates about how best to rea both stability and justice. Examples
from the MENA cited by Wiebelhaus-Brahm show that, rather than
seriously engaging in su processes, its governments have favored
51
either retribution or manipulating transitional justice processes for
their own interests, oen to forestall genuine political transitions.
e apters that follow in Section VII give case studies
illustrating different dimensions of these failures—or at best very
limited successes—of transitional justice efforts in the MENA.
Chandra Sriram’s “Courts as a tool in transitions: Lessons from the
Special Tribunal for Lebanon” takes on the hybrid tribunal
established by Lebanon and the United Nations Security Council to
address the 2005 assassination of former Lebanese Prime Minister
Rafik Hariri and several related assassinations. e Tribunal,
however, does not address abuses during Lebanon’s earlier civil wars
or abuses under subsequent Syrian occupation, mu less the
spillover from Syria’s more recent civil war. Sriram finds that it is
unlikely to promote accountability or even truth telling, though
there is some hope that it may facilitate some helpful discussions
about the past.
Rim el-Gantri’s “Lessons on transitioning from authoritarianism:
Pitfalls and promise from Tunisia’s experience” notes that Tunisia is
oen considered the most successful post-Arab Spring state, partly
due to it having initiated transitional justice processes. El-Gantri
finds, however, that delays and la of transparency suggest the
Tunisian state’s reluctance to implement these processes. Civil
society activism hoping to ki-start this process keeps alive the
hope for a more substantive reoning with the past, but fears are
very real that the supposed Tunisian success story is a passing
mirage. Without a true transformation of its political system, Tunisia
risks sliding ba to what it was before Ben Ali’s departure: a less
bad version of the pathologies that ail the Arab political system.
Morocco is an even more difficult case. Its Equity and Reconciliation
Commission was the first transitional process in the region, but
Osire Glacier’s “e impact of impunity for violating cultural rights
in Morocco” indicates not just the Commission’s la of impact, but
also how continuing impunity is part of what has kept Morocco in
52
stasis. Glacier returns us to Mark LeVine’s focus on cultural rights
and how their repression is intimately linked to violations in other
dimensions. She argues that impunity for cultural rights’ violations,
including deliberately depriving Moroccans of education, is part of a
political strategy that impedes cultural, economic, political, and
social development.
Experiences around the globe have demonstrated that simply
having elections or referenda is not a long-term solution to deeply
seated cultural, economic, political, and social divisions. Experiences
around the globe have also shown, however, that processes of
transitional justice—when seriously engaged—have helped many
state-societies in their transition out of authoritarianism. No all-
encompassing model emerges from these experiences, but there is
one unifying principle: the need to recognize and grapple with
authoritarian pasts if more democratic, pluralistic futures are to
emerge. To speak specifically of the Arab uprisings, their anaric
spontaneity gave them their irrepressible power. Ironically, however,
the same anaric impulse that was a strength in gathering together
disparate trends in opposition to the status quo was an Ailles’ heel
when it came to moving beyond that status quo. ere was lile
thought put into envisioning how to deal with responsibility for past
wrongs or the shape of future governing structures.
ere is no single path out of authoritarianism nor is there a
simple transitional justice process that is uniformly appropriate.
What is clear, however, is that, in the aermath of uprisings across
the Middle East, especially in the Arab world, there has been a
general failure to come to terms with responsibility for past
authoritarianisms. If transitions to democracy are inherently
unstable, the result of su instability is the possibility of divided
societies basliding into either despotism or internecine conflicts.
We have seen both in the Arab world. is demonstrates what an
opportunity—fragile but real—was missed when domestic, regional,
53
and global powers conspired to return the Arab world to its ‘stable’
status quo.
Section VIII
Conclusions from a global viewpoint: theoretical
justifications and contestations around human rights
Part III’s two sections conclude the Handbook with theoretical
reflections grounded in global and grassroots perspectives. Section
VIII’s apters put theoretical approaes to human rights in the
MENA in a global context. is is a vexing endeavor. e difficulty
of human rights’ implementation in practice is paralleled by the
contentiousness of theoretical arguments about how to understand
human rights and their global spread. A flourishing human rights
literature allows for contributions from a number of different,
sometimes conflicting, perspectives to illuminate difficult debates
about what human rights are and what explains their resonance or
la of resonance globally and in their intersections with local
particularities, including in the MENA.
e solarly diversity in Section VIII is not just about
multidisciplinarity. A deliberate oice was also made to include
human rights solars who do not specialize in the MENA. It is true
that, as Huss Banai argues in his apter, the MENA has distinctive
contexts that must be taken into account if we are to make sense of
its human rights intersections. ese contextual factors are, indeed,
the focus of most Handbook apters. But this is not meant by Banai
as an argument for MENA exceptionalism in whi the region is
constructed as a case apart. Su exceptionalism is problematic
because it would risk reinforcing insularity in intellectual debate
rather than the exploration of connections across disciplinary and
54
geographic divides. Underlying this Handbook is a critique of su
insularity and a theoretical assumption that moving beyond
disciplinary and regional expertise can be revealing. e logic
behind broadening the Handbook’s academic palate with
contributions by human rights solars who are not necessarily
MENA experts is that ignoring su flourishing human rights
solarship would be intellectually impoverishing. is globally-
oriented solarship sheds valuable light on theoretical issues
regarding the intersection of human rights and locales around the
world, including in the MENA.
David Forsythe’s “International human rights at 70: Has the
Enlightenment project run aground?” gives, as its title indicates, a
broad reflection on how human rights have evolved historically,
with particular aention to recent developments in international
criminal justice, transitional justice, and the Responsibility to
Protect. Forsythe anowledges that, despite these remarkable
advances, the rights regime has a long path before it can make more
than incremental progress in the face of nationalisms and
illiberalisms, especially in the MENA. If Forsythe speaks of the
gradual diffusion of human rights across the globe in what he calls
contingent circumstances, Koen De Feyter’s “On the local relevance
of human rights” takes that focus on contingency and asks, more
specifically, in what contexts it is that peoples on the ground come to
appeal to human rights. De Feyter’s field resear in Africa and Asia
shows that groups around the world, especially in the global South,
appeal to human rights when their human dignity is under threat.
Contrary to usual top-down notions of the global diffusion of rights,
De Feyter makes the argument that the use of human rights at the
local level is the starting point for the normative development of
global human rights. In a phrase he borrows from Upendra Baxi,
people are the ‘primary authors’ of human rights. is is a
remarkable departure from an assumption in mu of the literature
that human rights flow from on high out of Enlightenment era
55
civilizational thought and traditions. is assumption is highly
problematic and, in a MENA context, makes lile sense of the ways
in whi human rights have come to resonate with lived realities.
Nicola Perugini and Neve Gordon’s “Israel/Palestine, human
rights and domination” takes a critical theory perspective on human
rights, insightfully arguing that the rights regime can reinforce state
power in a problematic manner. A new generation of contemporary
historians—Samuel Moyn, Jean ataert, and Steven Jensen, most
prominently—have put into question the common story that the
human rights regime flowed out of WWII. Perugini and Gordon,
however, accept the more traditional story, assuming the birth of the
human rights regime in the wake of the Holocaust. ey argue that,
when this new regime emerged, it did so in order to bestow on the
state primary responsibility for protecting human rights. is had
the effect, ironically, of reinforcing the state’s power. In
Israel/Palestine they see an unfortunate result of this, arguing that
this is a case in whi the human rights movement has functioned to
normalize colonial relations between the Israeli state and
dispossessed Palestinians.
is critique points to a troubling issue with the reformist human
rights project. Human rights’ synergistic relationship with the state
creates a sort of mutual dependency; counter-intuitively, this risks
empowering the very states that human rights are meant to limit.
David Forsythe’s broad historical overview makes clear, however,
that human rights are too narrowly pigeonholed if they are seen
only through that one problematizing prism. Indeed, while far from
a panacea, Forsythe gives a cogent overview of how human rights
have developed in ways that, at least at times, have effectively
limited state power to violate the rights of individuals and social
groups. One should also be skeptical, per De Feyter’s contribution, of
making too exclusive an identification of human rights with state
power. ere are simply too many cases where marginalized peoples
—from the anti-apartheid movement in South Africa to indigenous
56
peoples in South America—use their agency to engage with human
rights as a tool in their struggles against states. Human rights can be
instrumentally appropriated by states, as Perugini and Gordon point
out, but that does not exhaust their potential.
Alison Brysk’s “e quest for constructive criticism: Critical
approaes to human rights” is a sharp assessment of critical
theorists on human rights. Brysk argues that su theorists too oen
rely on monolithic, ahistorical notions of human rights that are, in
her words, “undisciplined by empirical reality.” Using the example of
activism around women’s rights, Brysk shows how to understand
human rights as a “contested, constructed, and evolving basis for
mobilization and empowerment with the capacity for counter-
hegemony in a liberal world order.” is is a key insight that moves
discussion of human rights beyond predetermined theoretical
templates and more toward being informed by empirical realities
that explain human rights “expansion and vernacularization.”
Human rights are, as noted before, both a potential tool of struggle
for the dispossessed and a site of struggle within whi various
actors—state and non-state alike—contest how human rights develop
and are re-imagined. To see human rights as a singular monolith is
to miss their problems, their possibilities, and their transformations.
Lisa Alfredson is, like De Feyter, a solar at the cuing edge of
work to re-orient understandings of human rights toward a localized
approa. eir apters’ emphases on boom-up approaes to
understanding human rights speak to how solarship on human
rights and the MENA is enried by emerging human rights
solarship. Alfredson’s “Making human rights ‘universals’ from the
ground up?” emphasizes, in particular, the need to recognize, rather
than deny, the agency of peoples in claiming human rights,
converting them to their own purposes and, in that process,
anging what human rights are. In describing this process of
human rights creation by globally diverse actors, Alfredson argues
that human rights’ adaptations in response to new claims shows that
57
the human rights status quo itself can be allenged and anged
rather than becoming stagnant in its own notion of ‘universality.’
Indeed, the emergence of new sets of human rights in recent years—
regarding sexual orientation and gender identity, for example—
demonstrates how human rights are, at their best, in a dynamic
process of becoming rather than static.
ese contributions in Section VIII indicate how human rights
relevance in diverse parts of the world flows from the degree to
whi they have (or have not) resonated at the grassroots. is is a
conscious allenge to the prevailing notion that human rights have
only become important to the region from a top-down global
diffusion, whi remains a far too common assumption in mu of
the literature on human rights and the MENA.
Section IX
Conclusions from a grassroots viewpoint: reflections on
dynamics around struggles for human rights in the Middle
East and North Africa
Section IX brings the Handbook to a close with apters by four
authors who have been inspirations to many who have worked on
human rights in the MENA, including myself. e riness of their
reflections is a testament to the interplay of long experience,
consistent integrity, and intellectual wisdom. It is a clié to talk of
bridging the gap between theory and practice. How beer, however,
to describe these apters? Decades grappling with theoretical and
practical issues revolving around human rights and grassroots
struggles in the MENA inform reflections that astutely recognize the
structural allenges, normative opportunities, and intellectual
58
surprises that make human rights and the MENA su a ri but
difficult topic.
Fateh Azzam’s “Reflections on three decades of human rights
work in the Arab Region” gives a magisterial overview of all this
Handbook encompasses. Azzam meditates on both the growth of the
human rights movement since the late 1970s in the MENA and its
consistent frustration by structures of power that are both local and
global. Dely describing the interplay of the moral, legal and
political in human rights discourse leads Azzam to decry “a cycle of
tilting at windmills by human rights proponents: now it’s the
culture, now it’s the law, now it’s the politics.” Azzam argues,
instead, for considering culture, law, and politics in an integrated
manner. is extends in a very practical manner theoretical
arguments about indivisibility that, as I have noted, inform from the
start this Handbook. Azzam’s practical concern is how su an
integrated approa can beer inform a societal movement that
meaningfully impacts local and global structures of power. Azzam
finds a compelling model for this in the Boyco, Divestment and
Sanctions (BDS) movement, saying its strategies are “human rights-
based and well known: to bring pressure on states, commercial
companies, universities and other institutions, to desist from
activities that support the continuing Israeli occupation and
violations of international law and Palestinian human rights.
Initiated by Palestinians, it has grown exponentially in the past 10
years and has garnered significant global support, scored many
successes and is beginning to have tangible effect.”
Amr Hamzawy foregrounds the experience of Egypt in his “Egypt
2011–15: How can a democratic revolution fail to improve human
rights conditions?” As with Azzam, Hamzawy is both an engaged
intellectual and a grizzled practitioner whose reflections flow out of
events in whi he has been a key player. His reflections begin by
recalling an intellectual environment in the Arab world at the start
of the twenty-first century that was informed by a sense of urgency
59
to confront long-standing authoritarianism and the “pseudo-rational
discourses” of apologists for ruling regimes and Islamism as its only
alternative. Hamzawy evokes the prevailing optimism that Arab
societies were bound to transition to democracy and the rule of law.
In making these arguments at the time, intellectual elites and human
rights defenders were reaing out to considerable segments of Arab
populations looking for alternatives to a stagnant and repressive
status quo. Hamzawy argues this was key to empowering a younger
generation of Arab activists to discover the street as a peaceful arena
to allenge autocracy, as eventually came to fruition in the Arab
uprisings. is optimistic badrop and the energy it engendered
make the counterrevolutionary tide that swamped these uprisings all
the more bier to Hamzawy. True to human rights principles,
Hamzawy has been Egypt’s most consistent critic of Mubarak, of
Muslim Brotherhood rule, of the 2013 coup that overthrew
Muhammad Morsi, and of al-Sisi’s rule since then. He describes ea
of these phases as sharing an idea of a savior from above that
justifies mass violations of human rights, sacrificing both the blood
and the hopes of Egyptians.
Bahey eldin Hassan’s “Reflections on human rights before and
aer the Arab Spring” betrays a similar discouragement about
current events and, yet, a continued engagement with how to create
ange. e head of the Cairo Institute for Human Rights Studies,
Hassan argues that military elites in Arab countries are the variable
that explains the counterrevolutionary turn that repressed popular
hopes aer the Arab uprisings. As with Hamzawy, Hassan focuses
on Egypt. He uses Egypt’s recent history as a case study
demonstrating a regional trend of military power as the determining
factor in reversing calls for democratization and pluralism by Arab
publics. e apter concludes by discussing the role of human
rights activists who have moved from being popularly lionized as
revolutionary leaders to being hunted as the foremost enemies of the
state. Nonetheless, the underlying claim raised by these activists—
60
that violations of human rights result in interloing local, regional,
and global instability—has only grown more acute. Hassan concludes
that addressing these systemic violations, however unlikely, remains
the only hope to ending the impetuses that make the Arab world a
source of conflict, terrorism, and refugee flows.
Lynn Welman’s “Human rights, law and politics: a reflection on
human rights work in the Middle East and North Africa” is a
response to academic critiques of human rights. Welman indicates
how disconnected su abstract critiques can be from the reflective
commitments of grassroots human rights activists who “act on
human rights in the daily grind as well as in the bigger picture.”
ose in the front line of thought and action around human rights
organizations in the MENA—su as Azzam, Hamzawy, and Hassan
—are well aware of the problematics surrounding human rights law
and politics in the region. (Amusingly, Welman cites the mo
horror of a Tunisian activist at yet another academic tome invoking
the “endtimes” of human rights—but “we’ve hardly had a ance to
get started!” the activist exclaims.) Welman borrows from
Christine Bell to make her point: “e law’s possibilities are oen
sought out by those in struggle as one of the few resources
available.” It may be that simple. In events that range from ongoing
struggles by Palestinians and Kurds for the right to self-
determination to contemporary demands for cultural expression,
economic opportunity, political voice, and social pluralism, human
rights have been invoked when they are perceived as a useful tool—
legal and normative—of the marginalized to contest hegemonic
power. It is ironic, to say the least, when su agency is derided by
Western academics from their position of privilege.
e aptness of De Feyter’s and Alfredson’s apters come to mind
when Welman writes that
ere is a real gap in solarship on the impact of local human rights organizations in
the Middle East and North Africa on their partners in the international movement, as
well as the intensification of regional initiatives. Now, here is an extremely interesting
61
area of exploration for those who wish perhaps to uncover a different kind of human
rights story.
Indeed, whether in writing of human rights “endtimes” or their “rise
and fall” among Palestinians, what seems to be missing from too
mu solarship on human rights and the MENA is a substantive
engagement with local contexts and a willingness to take seriously
grassroot actors’ reflections and commitments. What is missing is an
openness, in Welman’s terms, to a story different than what is
presupposed.6 Could there be serious reasons that human rights
continue to undergird struggles in the region to find an alternative to
governance that serves the power of cultural, economic, political,
and social elites, despite the dismissiveness of some observers?
Welman pertinently concludes her apter with an observation
that underlies the premise of this Handbook as a whole: the
allenge of solarship on human rights and the MENA is to be
informed “with the possibility of … surprise, puing aside for that
moment theoretical templates that suggest human rights can be
constructed only in certain limited ways.”
62
Conclusion
e wave of uprisings from 2009–13—from Iran’s Green Revolution
to the Arab uprisings and Turkey’s Gezi Park protests—were both a
high and low point for human rights in the MENA. e Arab
uprisings took this high point the furthest, forcing long-entrened
rulers to step down in response to demands from massive street
mobilizations for greater cultural, economic, political, and social
freedoms. ese demands indicated anging normative
expectations in the region regarding democracy, human rights, and a
recognition of the Other’s place in a political community. As
Challand convincingly argues,
e Arab uprisings shared a common sociological novelty, that of expressing the new
massive adherence of the people, ash-sha`b, to the notion of citizenship and the
collective will to underwrite a new, more inclusive type of social contract. is amounts
to a call for the precedence of citizenship over the nation as opposed to previous
aempts of token nationalism devoid of full citizenship rights.7
e popular resonance of these demands should not be forgoen.
Even if the Arab uprisings’ hopes have been frustrated, their
underlying normative currents represent a continuing potential to
allenge the status quo. ey are, in Huss Banai’s phrase,8 a
“hidden Liberalism”—that is, a desire for liberal ends even if an
illiberal political context blos their accomplishment.
e Arab uprisings also represented a low point, however.
Counterrevolutionary forces quily overcame these uprisings’
animating calls for more representative, accountable politics. In the
midst of revolutionary aos, the warm appeal of exclusivist identity
politics and strongman stability returned as a powerful mobilizing
force, justifying a return of authoritarian politics in new modes. In
some sense this reversal was inevitable given the powerful
63
institutional and ideological forces arrayed against populist uprisings
in countries like Egypt, Libya, Syria, Tunisia, and Yemen. It is also
true, however, that calls during the Arab uprisings for cultural
vitality, economic justice, political democracy, and social pluralism
were too superficial to be translated from rhetoric into plans of
action. Even Tunisia’s limited success in continuing its democratic
transition is tenuous, as many old guard figures have returned to
power and slowed transitional justice processes (as el-Gantri
discusses in her apter) as well as broader processes of
democratization and empowerment. Why these failures? e
anaric forces behind the uprisings did not have the institutional
foundations to withstand deeply embedded structures of power.
Neither, however, did they ever have a fully articulated vision of
how to build their own institutions or how to allenge and move
beyond the nationalisms and other forms of identity-based politics
that have been and continue to be mobilized against democratic
politics.
e Arab uprisings were an example of both human rights’
unanticipated impacts and their continued shortcomings. In regard
to the former, human rights language has oen been powerfully
invoked against specific rights’ violations and authoritarianism in
general; its normative and political relevance to the Arab uprisings is
another example of how human rights can be a useful tool in
struggles by the disempowered. In regard to the laer, human rights
have not consistently done enough to inform a structural critique of
the status quo; this is true in the MENA and elsewhere. e inability
of the Arab uprisings to be translated into representative,
accountable institutions is one example of human rights not reaing
their potential.
at does not mean that human rights do not have the possibility
of being part of more thorough structural critiques. Su structural
critiques are fundamental to human rights and need to be made
more deeply and more explicitly. In order to point toward this
64
possibility, I will conclude this introduction with a few thoughts on
why SOGI-related rights, even if a particularly controversial part of
social rights, are central to this argument. If we are to take seriously
the themes of human rights’ indivisibility and intersections that run
through this Handbook, it is essential to see how the struggle for
SOGI-related rights is intimately linked to broader struggles for
cultural, economic, and political empowerment. Social resistances in
the domain of sexuality and gender are not just important in
isolation. Rather, they provide an example that goes to the heart of
how human rights can constructively inform articulations of
political futures that are more inclusive and pluralistic.
So, how is it that SOGI-related rights can point us toward taking
into account rights’ indivisibility and their intersections in ways
essential to rights’ long-term relevance? In regard to indivisibility,
the apters in Section II discuss categories of cultural, economic,
and political rights and their importance. Social rights are equally
important and, per rights’ indivisibility, interwoven with the
possibility of implementing all categories of rights. In specific regard
to social constructs of sexuality and gender, feminist and eer
studies solarship allows us to see the politically radical effects of
boundary-breaking phenomena, from feminism to alternative gender
expressions and sexual orientations. ese social resistances,
whether perceived as mildly or wildly outrageous, can be part of
subverting a mutually reinforcing status quo in the cultural,
economic, political, and social domains.9 is is demonstrated by
how the Arab uprisings were heralded by under-the-radar shis in
social and cultural aitudes—from sexual and gender expressions to
cultural rebellions evidenced in rap music, heavy metal, and various
other artistic subversions.10 is irrepressible social and cultural
energy constitutes a continued defiance against the status quo.
Keeping this in mind explains why it is not surprising that
counterrevolutions in the Arab world (as well as in Iran and
increasingly in Turkey) have taken as a necessary task brutally
65
repressing alternative social and cultural expressions. is is not out
of morality. It is out of an implicit sense of rights’ indivisibility: that
the emergence of su social alternatives feeds into undermining
patriary in all of its domains—cultural, economic, political and
social—and therefore must be crushed.
In regard to intersections, it is essential to push beyond what was
noted earlier in this apter—how human rights intersect with a
range of issues and crises—and toward a more truly intersectional
approa to identity. Challand argues, perhaps a bit too broadly, that
the era of uprisings in the MENA flowed out of “overt support for
intersectionality politics” whi he defines as “sensitivity toward the
limit of dominant identity binaries.”11 Authoritarian patriary, be it
monarist, Islamist, secular, and/or military, is based in essentialist
identity constructs; it imposes, among other things, singular notions
of appropriate ethnicity, sexuality, and gender roles. If this is, indeed,
the case, then to allenge su authoritarianism at its core it is
necessary to more directly allenge these narrow conceptions of
identity. SOGI-related rights have particular potential toward this
end insofar as they emphasize that sexual and gender identities must
be recognized as multiple, overlapping, and coexisting, rather than
singular. Movements for SOGI-related rights are powerful in
upseing patriaral binaries by being, in Momim Rahman’s words,
“focused on the uncertainties of identity.”12 Dennis Altman argues
that, in so doing, they “interrogate identity as a fixed point and a
central reference.”13 is is not just a sideshow. It is central to calling
into question structures of patriaral identity that are a key impetus
behind human rights’ violations and sectarian violence one sees
around the world, including in the MENA.
Indivisibility and intersectionality, thus, are not merely abstract
theorizing; they show how human rights can be beer
conceptualized in order to allenge the status quo. e Arab
uprisings showed the potential of human rights-inflected popular
movements but also exhibited their limits. In the wake of sobering
66
experiences in Egypt, Yemen, Syria, Libya, and Tunisia, it is clear
how difficult it is to translate the Arab uprisings’ impulses into
pluralistic political communities. While SOGI-related rights may
seem improbable to contemplate in currently dire circumstances, it is
also worth contemplating if it may only be in the context of multi-
dimensional ange that rights—even those that are supposedly less
controversial—can be sustainably implemented. In short, there is an
interdependency among rights that must be recognized if real
ange is to occur; ange that is not just incremental but truly
revolutionary. Surface improvements on structures that are
authoritarian to their core are insufficient. In theses contexts, human
rights must indeed aim to be revolutionary rather than merely
reformist.
e apters in this Handbook either implicitly or explicitly
remind us to keep in mind three realities as we think about how
human rights may contribute to su ange in the MENA. First is
that, even in a reactionary period, rebellious contestation will
continue. A key lesson of the Green Revolution, Arab uprisings, and
Gezi Park protests is how the disorganized, incoherent, yet inevitable
pluralism of peoples unpredictably explodes. No maer how stable
the surface, contestation is irrepressible and ange inevitable. e
current status quo in the MENA is particularly precarious given its
ruling elites la of popular legitimacy and how their bad
governance feeds into widening cycles of violence and instability.
Second, these rebellious contestations need to focus on the structural
causes of human rights’ violations if they are to sustain the ange
they seek. ese structures are institutional—governmental and non-
governmental—and they are grounded in patriaral forms of
authority. If human rights are to beer inform resistance to these
forms of authority, then they need to be “multilingual”14—that is,
owned at the local level by agents of ange who desire to be the
subject of politics rather than its object. ese agents adopt rights
not due to one universal heritage, but rather due to human rights’
67
utility as a tool that evolves according to context, speaking to varied
resistances against human rights violators.15
Lastly, in that light there needs to be less focus on if human rights
are inherently relevant or irrelevant, but rather on how human
rights can continue to evolve in order to tangibly become relevant to
the claims and demands made by peoples. at is where human
rights live or die. Just as historians tea us that human rights are
not a static entity, but rather have been continuously re-imagined
and repurposed,16 so too do rights need to continue to be open to
su re-imaginings. Human rights are oen discussed as if they are
in and of themselves a goal, and in and of themselves an ideological
worldview. is is not the case. To the contrary, human rights are
more about processes than ends—processes that can restrain state
dominance, empower peoples and social groups, and advance
individual and group agency. What is accomplished with that
empowerment and agency is not determined by human rights; it is
determined by those who claim, use, and transform human rights.
In the short-and even medium-term there is every reason to be
pessimistic about human rights in the MENA. In the long-term,
however, making space for forms of political community that are
fluid and open enough to represent cultural, economic, political, and
social pluralism is the only alternative to authoritarianisms that are
inherently unable to come to terms with diversity within the Middle
East and North Africa. Despite the structural, institutional, and
ideological obstacles to creating alternative forms of political
community, human rights remain relevant to that struggle in the
many domains addressed in this Handbook and beyond.
68
Notes
1 Mary Kaldor, New and Old Wars: Organized Violence in a Global Era (Palo Alto:
Stanford University Press, 2012).
2 Asda`a Burson-Marsteller, Arab Youth Survey, available at:
www.arabyouthsurvey.com/en/home. Accessed on May 2, 2016.
3 Anthony Tirado Chase, “Liberal Islam and ‘Islam and human rights’: A sceptic’s view,”
Religion and Human Rights vol. 1, no. 2 (2006), 1–19.
4 Alice M. Miller and Carol S. Vance, “Sexuality, human rights, and health,” Health and
Human Rights vol. 7, no. 2 (2004), 5–15.
5 Linz and Steppan, Problems of Democratic Transition and Consolidation: Southern
Europe, South America, and Post-Communist Europe (Baltimore: Johns Hopkins
University Press, 1998).
6 Stephen Hopgood, The Endtimes of Human Rights (Ithaca, New York: Cornell University
Press, 2013).
Lori Allen, The Rise and Fall of Human Rights. Cynicism and Politics in Occupied
Palestine (Palo Alto, CA: Stanford University Press, 2013).
7 Benoît Challand, “Citizenship against the grain: locating the spirit of the Arab uprisings
in times of counterrevolution,” Constellations vol. 20, no. 2 (2013), 170.
8 Huss Banai, Hidden Liberalism in Modern Iran (forthcoming).
9 Desiree Lewis, “South African feminism, Lady Gaga, and the flight toward ‘eer
Utopia’” in Los Angeles Review of Books (Sept. 2015). Available at:
hps://lareviewoooks.org/essay/south-african-feminism-lady-gaga-and-the-flight-
toward-queer-utopia. Accessed on May 2, 2016.
10 Asef Bayat, Life as Politics: How Ordinary People Change the Middle East (Palo Alto,
CA: Stanford University Press, 2010).
11 Challand, p. 175.
69
12 Momim Rahman, “eer as intersectionality: eorizing gay Muslim identities,”
Sociology vol. 44 no. 5 (2010), 951.
13 Dennis Altman, “Global gaze/global gays,” GLQ: A Journal of Lesbian and Gay Studies
vol. 3, no. 4 (1997), 430.
14 Lynee Chua, Mobilizing Gay Singapore: Rights and Resistance in an Authoritarian
State (Philadelphia, PA: Temple University Press, 2014).
15 Anthony Tirado Chase, “Human rights contestations: sexual orientation and gender
identity,” International Journal of Human Rights vol. 21 (2016), 1–21.
16 Samuel Moyn, “On the Genealogy of Morals” in The Nation [online]. Available at:
www.thenation.com/article/genealogy-morals#. Accessed on May 2, 2016.
70
Selected Bibliography
Aerly, Brooke. Universal Human Rights in a World of Difference.
Cambridge: Cambridge University Press, 2008.
Afshari, Reza. “On historiography of human rights discourse” in
Human Rights Quarterly vol. 29 (2007), 1–67.
Bayat, Asef. Life as Politics: How Ordinary People Change the Middle
East. Palo Alto, CA: Stanford University Press, 2010.
Beitz, Charles. The Idea of Human Rights. New York: Oxford
University Press, 2009.
Benhabib, Seyla. Dignity in Adversity: Human Rights in Troubled
Times. Cambridge: Polity Press, 2011.
Burke, Roland. Decolonization and the Evolution of International
Human Rights. Philadelphia, PA: Pennsylvania Studies in Human
Rights, 2010.
Chase, Anthony Tirado. “Human rights contestations: sexual
orientation and gender identity” in International Journal of
Human Rights vol. 21 (2016), 1–21.
Chua, Lynee. Mobilizing Gay Singapore: Rights and Resistance in
an Authoritarian State. Philadelphia, PA: Temple University
Press, 2014.
De Feyter, Parmentier, Timmerman and Ulri eds. The Local
Relevance of Human Rights. Cambridge: Cambridge University
Press, 2011.
Goodhart, Miael. Human Rights: Politics and Practice. New York:
Oxford University Press, 2009.
Grabham, Cooper, Krishnadas and Herman, eds. Intersectionality
and Beyond: Law, Power and the Politics of Location. London:
Routledge, 2009.
71
Jensen, Steven. The Making of International Human Rights, 1945–
1993. Cambridge: Cambridge University Press, 2015.
Merry, Salley Engle and Goodale, Mark, eds. The Practice of Human
Rights: Tracking Law Between the Global and the Local.
Cambridge: Cambridge University Press, 2007.
Moyn, Samuel. The Last Utopia: Human Rights in History.
Cambridge: Harvard University Press, 2010.
ataert, Jean. Advocating Dignity: Human Rights Mobilizations in
Global Politics. Philadelphia, PA: University of Pennsylvania
Press, 2010.
Rahman, Momim. “eer as intersectionality: theorizing gay
Muslim identities,” Sociology vol. 44 (2010), 944–61.
Rajagopal, Balakrishnan. International Law from Below:
Development, Social Movements, and Third World Resistance.
New York: Cambridge University Press, 2003.
Risse, omas, Sikkink, Kathryn, and Ropp, Stephen eds. The
Persistent Power of Human Rights. Cambridge: Cambridge
University Press, 2013.
72
Section II
A conceptual framework: political,
economic, and cultural rights in the
Middle East and North Africa
73
2
Political Legitimacy, Contingency,
and Rights in the Middle East and
North Africa
Hussein Banai
74
Introduction
Very few governments in the contemporary Middle East enjoy
popular legitimacy. e coercive powers of most states in the region,
in the main, are exercised by fiat rather than sanctioned by their
citizenry. According to Freedom House surveys of civil and political
liberties around the world, of the twenty-one countries in the Middle
East and North Africa (MENA) region, only Israel and Tunisia are
free (encompassing only five percent of the region’s 410 million
populace—but even counting Israel and Tunisia as free is contentious
to many experts).1 ese findings are confirmed by issue-specific
reports su as Reporters Without Borders’ World Press Freedom
Index,2 Amnesty International Annual Reports on myriad abuses of
human rights, the United Nations Human Development Index3, and
a host of other (non/inter)governmental reports. e consistency of
these reports over the course of the last two decades, combined with
myriad failed efforts at reform and liberalization in the region, help
to explain why the so-called ‘third wave’ of democratization
sweeping across central and eastern Europe, Latin America, and
parts of central Asia and the Caucuses has largely eluded the MENA
region.
At the time of the successive popular uprisings in Iran, Tunisia,
Egypt, Libya, Syria, Bahrain, Jordan, Iraq, and Yemen (to name the
most prominent between 2009 and 2011), there was mu hope that a
new trajectory had at long last come to replace the puzzle of
‘persistent’ and ‘robust’ authoritarianism in the Middle East.4 But
the Green Movement in Iran and the so-called ‘Arab Spring,’ while
helping to expose multiple and intersecting crises of legitimacy
across the region, also underlined the difficulties inherent in
confronting powerful interests and established practices that have
75
long shaped social relations under longstanding regimes of
repression.5 In ea case, the failure to either replace or gain
significant concessions from the status quo revealed important
insights about the differences between popular and political
legitimacy, and the implications for human rights and democratic
reforms. For my purposes, I define (and later justify) political
legitimacy as a mere modus vivendi between ruling parties, their
support networks, and the general population. Popular legitimacy, by
contrast, is legitimacy gained through the free and fair participation
of citizens in the public sphere, and especially in maers of
governance. Very few recent works on the determinants of
legitimacy do not either confuse or conflate popular and political
antecedents in their analyses. is has been to the detriment of
constructive thinking about the prospects for democratic reform and
fulfillment of human rights in the region.
is apter is a reflection on the relationship between political
legitimacy and rights in light of the conjoined domestic and foreign-
induced convulsions that have set the Middle East upon a most
uncertain trajectory. It may reasonably be asked just what is to be
gained from su a survey under ever-mutating conditions. I offer
two related reasons. First, the socio-economic and political factors
that for so long conditioned the terms of political legitimacy have
either been anged or rearranged. e sound and fury of the
current moment notwithstanding, the uprisings across the region
have in fact broken some significant taboos and slain more than a
few sacred idols. It is, therefore, important to pause and take
measure of the salience of the new political landscape aer the
collapse of the previous order. Second, this new political seing has
revealed the underlying pluralism of values, grievances, interests,
and strategies that serve as reference points for struggles over and
debates about basic rights and freedoms. Put simply, there is a great
deal of variation in the terms of political discourse, as well as the
substance of political claims on offer, from Tunis to Tehran.
76
Political legitimacy aer civil uprisings
Max Weber’s definition of the state as a political entity whose
“administrative staff successfully upholds a claim on the monopoly of
the legitimate use of violence in the enforcement of its order within
a given territory”6 is an instructive starting point for thinking about
the determinants of political legitimacy. In Weber’s influential
formulation, legitimacy stems from the unmatched capacity of the
state to exercise its coercive powers. In other words, to the extent
that no other authority can allenge the state’s coercive powers,
then su a ‘monopoly’ forms the basis of political legitimacy.
Weber’s definition is instructive here because it links the normative
concept of legitimacy directly to the material capacity of the state to
bring about desired outcomes. Legitimacy, therefore, is gained once
the agents of state—that is, ‘the administrative staff’ carrying out
executive functions—can demonstrate their ability to thwart
allenges to their authority, maintain order within their territory,
and to secure the elementary security needs of subject populations.
To be sure, this capacity does not by itself render the state’s exercise
of power just or unjust; rather, it signifies a key (for Weber, perhaps
the) aribute of the sovereign state.
It is important to be mindful of this fine distinction from the
outset because far too oen what merely testifies to the political
legitimacy of the state is confused or conflated with what makes the
ruling regime or a given system of rule legitimate. is is especially
important in the case of Middle Eastern countries where, as the
catalogue of measurements of popular legitimacy cited in the
introduction make clear, explanations for the persistence of
authoritarian regimes can easily neglect overlapping areas of
political legitimacy between the state and the regimes in power.
77
Popular legitimacy corresponds more closely to a representative
system of government, whereby ruling elites are not only responsive
to the claims of their citizens but also reflect the preferences of
majorities while protecting the rights of minorities. Although
democratic institutions and procedures are the most optimal means
of aieving popular legitimacy, alternative pathways to popular
legitimacy su as consultative assemblies and benevolent
monaries—more prevalent among Persian Gulf countries and in
Morocco—also exist.
In any event, muddled understandings of political legitimacy as
regards Middle Eastern states and societies are primarily due to the
contingent nature of its determinants, and not because the concept
itself is inherently enigmatic. More importantly, the prevalence of
authoritarianism in the region does not necessarily entail that
considerations of political legitimacy are any less variable or in flux
than under other systems of rule. As Lisa Anderson has recently
suggested,
Rather than assume the stability and legitimacy of the state, political scientists of the
Middle East must treat it as a variable: the state is stronger, more widely accepted, and
beer institutionalized in some places than others or, conversely, it is more hotly
contested, routinely ignored, or otherwise weaker in some places than others.7
e spectrum of authoritarian state capacities, in turn, affects the
aracter and form of the relationships or coalitions upon whi the
ruling elites come to rely.8 Correspondingly, political repression must
be viewed more as a means of ensuring the material and ideological
interests of authoritarian coalitions than a mere blunt instrument of
power. e longevity of authoritarian regimes, then, is determined to
a significant degree by their leaders’ ability to construct and
successfully maintain, as one influential study has argued, a
‘winning coalition’ among the ‘selectorate,’ a cohort of individuals,
institutions, and powerful entities baing the leadership of an
authoritarian state.9 Indeed, the variable fate of uprisings and
78
popular movements across the region since 2009 further confirm this
reality.
Iran
In Iran, the cradown on the leaders and notable supporters of the
Green Movement,10 however harsh and draconian in the short-term,
did not result in a state-of-emergency-like power grab by ultra-
conservative factions seemingly enjoying the support of the Supreme
Leader Ayatollah Ali Khamenei. Instead, the regime recalibrated by
re-drawing its ‘red lines’ around new, more acceptable public
criticisms of officials and policies. With the terms of political
discourse once again redefined, the opposition responded by electing
President Hassan Rouhani in 2013, a moderate pragmatist with
subliminal appeal to embaled reformists, as well as to conservatives
wary of Mahmoud Ahmadinejad’s costly hostile posture and actions.
Rouhani’s election was made possible due in large part to the
diffused, but inextricably linked, networks of commercial, religious,
and political interests that make up the support base of the regime.
Highly invested in the stability of the Islamic Republic, these
constituencies were more interested in reaing an equilibrium point
—aer the tumult brought on by Ahmadinejad’s polarizing agenda—
than rethinking the structure of power. As su, the political
legitimacy of the regime was secured once again.
Tunisia and Egypt
Considerations of political legitimacy in the case of Arab countries
have been demonstrably different, however. Prior to the start of the
uprisings in late 2010, nearly all of the Arab republican states—
primarily, Egypt, Syria, and Tunisia, but also Algeria and Libya—
79
were run by comparatively more rigid, top-down authoritarian
regimes. e regimes, in turn, were supported by highly selective (in
terms of their loyalty and personal relations with the security
establishment) networks of cronyism, whi benefited from
repressive policies that limited public accounting of state practices.
“Increasingly,” one especially perceptive study notes, “fragile
coalitions governed through divide-and-rule strategies based on a
combination of blanket subsidies, repression, and fear mongering
about political Islam.”11 As a result, far fewer constituencies were
included in the authoritarian coalitions across these states, rendering
the ruling elites more vulnerable to sudden shos and sustained
allenges to their authority.12
e so-called ‘Jasmine Revolution’ in Tunisia was largely a
response to the culture of corruption cultivated and nurtured by
President Zine El Abidine Ben Ali and his network of cronies.
Although the Ben Ali regime had been among the most repressive as
regards civil and political rights, Tunisia was nonetheless among the
most advanced Arab countries in socio-economic terms. Yet, the
imperatives of political survival on the part of Ben Ali, and of
favoritism and access on the part of the cronies benefiting from his
rule, turned Tunisia into one of the most unequal, economically
corrupt, and politically repressive countries in the region. In
retrospect, it is lile wonder that a mere spark could set the entire
façade ablaze, whi quite literally arrived in the form of the public
self-immolation of a Tunisian street vendor, Mohammad Bouazizi.
Indeed, Bouazizi’s plight—routinely harassed and humiliated by
corrupt, rent-seeking local police and civil administrators—
symbolized, beer than any independent audit of the country ever
did, the corrupt basis of Ben Ali’s tenuous political legitimacy.13
Suddenly, the convenient alibis of impending Islamist terror and
takeover no longer seemed to have mu credence in the minds of
millions of unemployed youth and under-employed and
marginalized working professionals.14 To be sure, many other non-
80
instrumental factors related to the popular legitimacy of Ben Ali’s
rule also played an important role in bringing down his regime.15
But from the standpoint of political legitimacy, the tapering of the
authoritarian coalition due to rampant cronyism was the decisive
factor in the swi transfer of power to the opposition.
e case of Egypt is more complicated in that there are many
areas of overlap between the determinants of political and popular
legitimacy that not only help explain the swi fall of one of the
purportedly most stable political regimes in the region, but also the
country’s gradual reversion ba to status-quo ante. Central to the
political legitimacy of any Egyptian government since the dawn of
Arab nationalism has of course been the outsized role of the military,
the Supreme Council of the Armed Forces (SCAF). e sheer scale of
the popular protests against the government of Hosni Mubarak
greatly surprised the network of cronies around him, and especially
exposed their complacency. A key constituency in that network
included the top ranks of the SCAF itself, for whom striking a
balance between anowledgement of the corruption of the political
class and the preservation of its massive commercial and political
interests was absolutely essential. As Owen observed, foremost in
the minds of the military leadership
was the desire not only to protect the military’s own lucrative economic interests—its
factories, commercial farms, its link with the wider business community—from public
scrutiny, but also what might be called its own ‘guilty’ secret that for all the huge (and
hidden) defense budget, its ability to put on even the smallest military exercise, let alone
confront a major enemy on the balefield, had been seriously impaired.16
Given the depth of SCAF’s entrenment in the political economy of
Egypt, it is lile wonder, in hindsight, about its active role in
fomenting a systematic counterrevolution that resulted in the
ousting and vengeful prosecution of the democratically-elected
government of Mohammad Morsi (and the Muslim Brotherhood)
and the return of the ancien régime.17
81
It is important to note that restoring the political legitimacy of the
old order in Egypt has by no means resolved the quite ronic crisis
of popular legitimacy that is bound to destabilize the country in the
foreseeable future. is is because popular support for the Muslim
Brotherhood and other Islamist parties had less to do with
Egyptians’ preference for Islamic governance than actually
mitigating mutually inclusive problems of corruption and mass
inequality. On this point, Tarek Masoud’s comprehensive study of
the basis of support for the Muslim Brotherhood’s Freedom and
Justice Party confirms that “citizens voted for that party not because
of its stance on the application of Islamic law, but because they
believed it would pursue economic policies on behalf of the poor.”18
e measure of popular legitimacy leading up to the elections,
therefore, was more economic and material in nature than religious.
is also helps explain how, when Morsi and the Brotherhood
undertook undemocratic steps to thwart the constitution in favor of
ideological commitments, the basis of their popular legitimacy
quily dwindled. Laing coercive powers, and excluded from the
networks of patronage apoplectic about its redistributive and
political agendas, the Brotherhood were easily purged by the SCAF
from the political scene.
Perhaps the most notable implication of the swi rise and fall of
the Muslim Brotherhood was what it revealed: the very thin
purase of Islam on either political or popular legitimacy. As
Masoud aptly notes,
If religious purity were the thing voters thought they were purasing with their
suffrages, we would expect those voters to insist on keeping Islamists in office,
regardless of the slowing of the economy, the decay of public services, or the steady
erosion of public order. If religion were truly possessed of the totemic power that
observers of the Muslim world have long assigned to it, then it would take a great deal
more than a few months of fuel shortages, blaouts, or inflation to cause the faithful to
turn their bas on it.19
82
Indeed, the same can be observed in Tunisia, whi also saw the rise
to power of the Islamist Ennahda Movement aer Ben Ali’s fall.
ere, the slogan ‘Islam Is the Solution’ soon had to be jeisoned in
favor of more earthly labels that would not needlessly alienate the
majority’s preference for practical solutions to root out corruption
and fix the country’s ailing economy. Consequently, Ennahda
entered into power-sharing agreements with the center-le Congress
for the Republic and the social-democratic Eakatol political parties
to aain the requisite legitimacy needed to shepherd the transition
process to constitutional democracy in Tunisia.20 At any rate, what
these disparate experiences suggest thus far is that even Islamists
have to grapple with the imperatives of political legitimacy, their
purported claims to ideological, cultural, and even metaphysical
authenticity notwithstanding.
Syria and Libya
e aermath of the Arab uprisings also has been instructive in the
two countries that have suffered—and whi at the time of this
writing continue to suffer—most significantly from near-total state
collapse and intractable civil conflict: Syria and Libya. Syria’s slide
into civil war was a direct consequence of Bashar al-Assad’s vicious
military response (including the alleged use of emical weapons) to
what by all accounts had been a widespread and pluralistic (in
sectarian and political terms) uprising to his rule. From the outset,
however, the Syrian uprising was qualitatively different from those
elsewhere, given the sectarian and highly stratified composition of
the Assad family’s system of rule that included the army, myriad
security and intelligence services, and the Ba`ath Party. e
hereditary rule of the Assads, in turn, is tied closely to the status and
security of the Shi`a minority Alawi sect whose members
predominate in the legislature and the cabinet, rubberstamp
83
institutions both. is peculiar arrangement has been termed a
‘presidential monary’ by Raymond Hinnebus,21 but the basis of
its legitimacy harkens ba more to its self-generating network of
support than mere loyalty to kinship or dynastic rule. In fact, similar
to other authoritarian republics in the region, a critical component of
the regime’s support are its networks of businessmen and capital
with access to resources outside of Syria. As Bassam Haddad has
explained,
Beginning in the 1970s, the regime has forged networks of capital that bind elite
business actors to state officials as the laer, and their offspring, venture into the
commercial realm. ese ties have paid dividends in times of crisis, both in the past and
in the present.22
e outbreak of the uprisings—whi soon turned into an armed
resistance—exposed the geographical limitations of Assad’s rule. e
Alawite population is mostly concentrated in the northwest region
of Syria adjacent to the Mediterranean Sea, and although the seat of
the Assad regime’s power is based in Damascus and its surrounding
areas, the rest of the country is predominantly populated by Sunnis,
Christians, Druze, and the Kurds. is demographic spread was not
an insignificant determinant of the regime’s political legitimacy,
since the ability to execute and project coercive power in these
regions was how Hafez al-Assad first cemented his grip on power.23
e metamorphosis of the uprising from civil to ongoing armed
resistance—with considerable military support by Western and
Persian Gulf countries—tipped the balance of power and effectively
eliminated the Assad regime’s monopoly of violence in mu of the
country. Armed resistance by itself, however, did not manage to
allenge the regime in its sectarian and military strongholds. e
resulting civil war has produced the most acute humanitarian crisis
of the twenty-first century (while estimates of the fatalities vary
between 250,000 and 500,000, the exodus and forced migration of
nearly 4.5 million people is indisputable).24
84
Although the composition and method of Muammar Qaddafi’s
rule also could be said to have resembled that of a ‘presidential
monary,’ the stratification of power based on tribal affiliation and
kinship render Libya qualitatively different from Syria. e base of
Qaddafi’s power was strictly composed of networks of patronage
bound by ties of kinship. As su, Libyan government was devoid of
any shared institutions or civil spaces that Libyans with different
tribal lineage could participate in. According to Anderson,
In the absence of any public-sector bureaucracy, including a reliable police force, kin
networks provided [sic] safety and security as well as access to goods and services. It
was along su networks that Libyan society fractured when the regime’s capacity to
divide and rule began to unravel at the beginning of the protests.25
e blithe manner in whi Qaddafi and his sons publicly vowed to
exact revenge on the opposition—Saif al-Islam Qaddafi warned of
‘rivers of blood’ in a televised spee26—was indeed representative of
the rigid basis of political legitimacy in Libya at the time of the
uprisings. All the same, the crucial factor in the fall of the regime
was no doubt the NATO-led military intervention that swily and
decisively ended Qaddafi’s four-decade-long monopoly of violence
in Libya.
As a result of the failure of the transitional process in Libya to
produce a united path toward shared governance, the country has
plunged into civil war between rival groups and zones of authority.
As in the case of Syria, the inability of any single political actor to
establish uncontested claims on the means of coercion is iefly the
reason behind the persistence of anary in Libya. On this account,
seing aside the legitimacy of the military intervention by NATO
countries, there is no doubt that mu of the violence and instability
in the country is due to the ill-conceived manner in whi the
distribution of weaponry and intelligence assets in the lead up to the
toppling of Qaddafi was managed. is has led some observers to
declare post-intervention Libya a ‘stateless country,’ whi is neither
85
possessive of the formal institutions of a state (in the Weberian
sense) nor even torn between disparate but stable zones of authority
(as has been the case in conventional civil wars su as in the
Balkans, Iraq, or in Syria).27 In contrast to ea of the
aforementioned cases, therefore, political legitimacy in Libya is
simply non-existent at the time of this writing.
e Arab monaries
It would perhaps seem counter-intuitive that among the different
types of autocratic regimes in the Arab world hereditary monaries
should fare beer than republican states. Aer all, su regimes
seem to rely more on entrened networks of patronage, la of
robust institutions, rampant corruption, and ineffectual ruling
personalities. Indeed, none of these regimes was at first immune
from popular protests that filled city squares and streets from
Manama to Rabat. But two factors, in retrospect, seem to have
played to the advantage of monaries: resource wealth (primarily
oil) and regional rivalry. It is a well-established observation in
comparative studies of Middle Eastern politics that resource-ri
countries prove more resilient in the face of popular pressures for
ange than those with lower or even medium levels of resource
rents.28 Simply put, oil rents endow resource-ri countries with the
capability to alleviate political pressures through economic
incentives. As Camme, Diwan, Riards, and Waterbury have
argued, “In the oil-ri countries with low populations, high oil rents
keep the autocratic bargain—or the exange of material benefits for
political quiescence—functioning.29
Evidence of su dynamics was on full display soon aer the
outbreak of popular protests in the Persian Gulf countries. In Saudi
Arabia, King Abdullah bin Abdulaziz responded to the uprisings by
announcing a $110 billion economic paage to be spent on social
86
welfare, new housing, and new jobs; the Kingdom later amended
this initiative with minor but symbolic reforms. In Kuwait, more
concrete political steps were taken, including dissolving the
rubberstamp parliament altogether, replacing the premier, and
holding new elections. But here too the offering of economic
incentives and promises of greater inclusion of hitherto marginalized
constituencies were ultimately instrumental in halting what
threatened to be a regional contagion. Although the scale and shape
of protests in Qatar, United Arab Emirates, and Oman were
comparatively too small to be even moderately threatening to the
respective ruling families there, in ea case the government cited its
diversified economy and relative wealth to explain its stability.30 As
the determinant of political legitimacy, therefore, oil wealth did
indeed have an appreciable effect on the ability of the ruling families
to respond quily and effectively to the outbreak of popular
protests.
All the same, a fairly robust counter-revolutionary response by
the riest Persian Gulf monaries—but primarily led by Saudi
Arabia—was also prompted by a renewed sense of rivalry with Iran.
In this sense, the pretext of an ascendant Iran, as a Shi`a power bent
on regional hegemony, was exploited to prop up otherwise weak and
unpopular autocratic regimes in Bahrain and Yemen.31 In Bahrain,
where the majority Shi`a population is ruled by the Sunni al-Khalifa
family, although persistent public protests were brutally crushed by
the security forces, the government made a point of inviting Saudi
troops to demonstrate its resolve in the face of possible assistance
from Tehran. e result was the fortification of the al-Khalifa
dynasty, and the restoration, for the time being, of the regime’s
political legitimacy.
A far more violent and uncertain case is the ongoing civil war in
Yemen that initially began as a mass uprising against the rule of
former president, Ali Abdullah Saleh. ere, the Iran-baed Houthi
opposition is engaged in a bloody armed conflict against the forces
87
loyal to the government of Abd Rabbuh Mansur Hadi, who came to
the presidency as a result of a transitional process brokered by the
Gulf Cooperation Council. Although the ebb and flow of the conflict
is consistent with the dynamics of a sectarian civil war, there is no
denying that the direct military involvement of a Saudi-led coalition
has effectively divided the country into three separate zones of
authority among the Houthis (in the West), pro-Hadi forces (in the
East and the center), and the Al Qaeda affiliate, Ansar al-Shari`ah (in
the center). In sum, a counter-revolutionary measure born out of the
anxieties of popular revolt has, as of this writing, devolved into a
full-blown civil war with no end in sight. In this regard, Yemen
demonstrates the ineluctable constraints placed on regime stability
and political legitimacy by outside forces struggling to aieve a
favorable balance of power. But just as importantly, it demonstrates
the lengths to whi discomfited regimes endowed with considerable
financial and military resources will go to counteract any external
developments that might conceivably affect their legitimacy at
home.
As the preceding brief illustrates, the variable outcomes of the
popular uprisings across the Middle East over the past few years
have largely been determined by the capacities of ruling elites to
maintain their respective authoritarian coalitions. While in some
states (e.g. Iran and Egypt) the informal networks of patronage and
clientelism have simply proven too ‘deep’ to be susceptible to
periodic popular shos, in other cases (e.g. Tunisia) the appearance
of total control seems to have deluded even the rulers about the
extent of their marginality. Still, in states with persisting divisions
along sectarian and kinship ties (i.e. Syria, Libya, and Yemen), the
outbreak of civil unrest was merely a symptom of yet more
trenant and deeply historical grievances that continue to maim,
kill, displace, and impoverish. To be sure, the riddle of political
legitimacy in ea of these societies is determined by any
combination of the following factors: demography, ecology, political
88
economy, human rights, external support and/or interference,
regional dynamics, transnational Islamist politics, sectarian identity,
kinship, and transitional politics. My aim in the preceding, however,
has been to demonstrate in whi cases, and broadly for what
reasons, political legitimacy—defined as the monopoly over the ways
and means of violence—has either been maintained, lost,
reestablished, or hangs in the balance since the outbreak of popular
protests in December 2010. e remainder of this apter examines
the implications of these variable outcomes for thinking about the
future of democracy and human rights in the region.
89
Contingency and rights
Given the rather parsimonious Weberian definition of political
legitimacy employed above, it would seem that struggles for basic
rights and freedoms are somehow of second-order relevance in
discussions of political ange. Su a conclusion would be mistaken
for two reasons. First, as I mentioned from the outset, there is an
important distinction between what enables a regime to stay in
power and what justifies its claims to rule. In the previous section, I
endeavored to describe the contours of the former in order to simply
show how and where authoritarian rulers maintained, lost, or
regained power in spite of mass discontent about the legitimacy of
their claims to rule. What I did not provide an explanation for or
explore was why su allenges to the political legitimacy of
resilient autocrats sprung up seemingly out of nowhere in the first
place. e implication here is that the normative content of the
uprisings—that is, the calls for basic rights, political agency, and
recognition of human dignity—still very mu remains a pivotal part
of the drive behind ange across the Arab and Muslim worlds.
Second, popular struggles for human rights and democratic
representation cannot singularly be treated as either symptoms or
causes of crises of legitimacy for the simple reason that they are by
nature immanent in social life, perpetually fought for, always in flux.
Even in the most stable and established democracies su struggles
are ever present and ongoing. erefore, due to the contingent
nature of social life (i.e. the absence of certainty in life events),
rights-based claims and abuses form the very threads out of whi
the fabric of social and political ange is weaved together.
In countries where the monopoly of violence does not rest on
democratic claims to governance—su as, in all of the states
90
surveyed above—the struggle for rights is necessitated, on the one
hand, by the contingency of everyday life, and on the other, by the
formal as well as informal denials of agency by the state. To
complicate maers further, in moments of crisis or transition the
boundaries between these domains are blurred by a combination of
perceived threats to physical or economic security, identity conflicts,
monistic pursuits of ideals, and sheer greed, on whi a bountiful
literature in social science already exists.32 A good illustration of this
point as regards the Middle East are the results of the Arab
Barometer (AB) surveys that have been fielded in twelve countries
across the Arab world. To date, three different waves of AB surveys
have been conducted, with the last round completed soon aer the
outbreak of uprisings in the region. Reading through the results
before and aer the protests, it is striking to observe the shi in
emphasis by respondents away from political grievances to more
socio-economic and security concerns. Egypt is an instructive case in
point. A key question in the survey asks of respondents to rank six
features of democracy in order of significance to them.33 In Egypt, in
a survey conducted soon aer the outbreak of uprisings that toppled
the Mubarak regime from power, a sizable majority of Egyptians (76
percent) ranked socio-economic features above political ones, whi
only 23 percent ranked first. Moreover, in the same survey a
majority of Egyptians (66 percent) also object to any violations of
human rights in the name of security. ese results lead the
surveyors to conclude, “that the definition of democracy in the eyes
of Egyptians does not correspond with many traditional definitions.
Instead, Egyptians understand democracy to be primarily associated
with socio-economic affairs, or redistribution.”34 Similar conclusions
are reaed about other countries in the region as well, albeit with
variable emphasis on security in addition to socio-economic factors.
But as I have demonstrated thus far, the contingency and the
variable nature of both popular and political legitimacy recommend
a more reflective interpretation. Crises of legitimacy, precisely
91
because they allenge or even supplant longstanding monopolies of
power over the ways and means of violence, naturally engender
feelings of fear, suspicion, anger, resentment, and insecurity. Under
su conditions, it is more than understandable that the sacrifice,
once again, of democratic aspirations for the sake of political
stability and legitimacy should lead to expressions of despondency
and resentment reflected by the third wave of AB surveys. In light of
the heightened sense of general instability and insecurity, worsening
economic conditions, and rise in sectarian conflicts, it is perhaps not
surprising that a sizable majority of respondents in Egypt, Lebanon,
Jordan, Kuwait, and even in Tunisia believe that their fellow citizens
might not be ready for democracy; or that any su system worthy
of its underlying values must first and foremost deliver on economic
equality and prosperity.35
e important question to ask at this juncture, however, is not
what preexisting templates for democracy citizens subscribe to
(insightful though su inquiries might be in illuminating common
anxieties and preoccupations of a public). Answers to su questions
would nearly always be at the mercy of contingent factors bearing
on the commitment level of respondents. Rather, a more salient
approa would account for the denial or recognition of specific
rights-based claims amid conditions of political turmoil and
instability. For instance, whi freedoms and rights have been
enhanced or further diminished in Egypt aer the fall of Mubarak
and before the restoration of the status quo ante by SCAF? What
lessons may we glean from the way political transitions across the
Arab world failed to deliver on popular demands for more
representation and freedoms? What institutional es and balances
are needed to ensure underlying democratic values su as equal
respect for persons, autonomy, freedom of spee, and minority
rights protections in a moderately successful case like Tunisia? Are
civil and political rights merely nominal without a fairly robust set
of welfare and economic protections? Is the absence of the laer the
92
reason for the qui resort to kinship ties and sectarian identity in
Libya, Syria, and Yemen? What is the role of inter-governmental,
non-governmental, and aid agencies in facilitating the neutral
political space in whi political legitimacy is established on
democratic foundations?
ese are just some broad and basic sample questions; but the
point I am making here with this set is that questions about the
status of struggles for rights and democratic processes must tou on
those specific conditions that were/are part of the historical record.
We call the aggregate of these context-specific factors the fruits of
‘contingency;’ but the ever-dynamic nature of these factors need not
detain us from empirical investigations of, and also engagement
with, ongoing normative struggles to render public institutions and
governments more representative of the irreducible plurality of
human lives conditioning social relations. Furthermore, we must
recognize that this effort entails a two-level—national and global—
understanding of rights-based claims that goes beyond the concerns
and purview of nation-states. Miael Ignatieff summarizes the
allenge well in his Tanner Lectures on Human Values:
Most human beings depend for their rights on the states they live in; those who do not
have states of their own aspire to one and in some cases are fighting for one. Yet even
though the nation state remains the ief source of rights protection, international
human rights movements and covenants have gained significant influence over national
rights regimes. Although the ‘default seings’ of the international order continue to
protect state sovereignty, in practice the exercise of state sovereignty is conditional, to
some degree, on observance of proper human rights behavior. When states fail in this
regard, they render themselves subject to criticism, sanction, and, as a final resort,
intervention.36
Indeed, there have been no shortages of criticisms, sanctions, and
interventions in the name of human rights and democracy
promotion in the Middle East in the last decade alone. Some of these
actions (mostly through conditional aid and symbolic criticisms)
have induced authoritarian states to become more responsive to the
needs and rights of their citizens, while others (i.e. interventions in
93
Iraq and Libya, for instance) have been abject failures in terms of
both securing rights and spreading democracy. e reasons for these
failures have been well explored and reflected on by solars, but
critical assessments of great power militarism are not a substitute for
ethical and pragmatic prescriptions that also take seriously the
imperatives of political legitimacy.37
Although the trajectory of anges underway—let alone the
prospect for democracy—in the Middle East are far from certain at
this point, there is lile doubt what the animating grievance behind
the uprisings has been: the basic democratic idea that citizens’
fundamental rights and dignity are to be respected by governments.
e brave and dignified protests that engulfed the region in the
aermath of Mohammed Bouazizi’s self-immolation in Tunisia
demonstrated this point perfectly. As Anthony Chase has aptly
argued, the multiple and intersecting waves of boom-up protests
prove that “human rights have come to inform, in part and in
interesting ways, how significant issues in some parts of the
transnational Muslim world are contemplated, debated, and acted
upon.”38 In contemplating the prospects for democratic ange in
these societies, therefore, we must concentrate our analyses more on
the formal and informal obstacles in the path of rights-seeking
citizens than on their putative expectations from democratic
institutions (should they ever arrive). is is not to say that we must
credulously accept the whims and desires of any individual or group
—or even of majorities—in the name of freedom of expression and
democratic agency. For without critical dialogue and reflective
understanding the core democratic principle of equal respect for
persons is nothing but a hollow trope. Rather, by revealing the
barriers to representative institutions, and hence to meaningful
citizenship, reflective solarship would accurately portray civil
protests for what they truly embody: in Chase’s words, “the desire of
the people to be subjects of politics rather than objects of politics.”39
94
Conclusion
e long-term implications of the so-called ‘Arab Spring’ for the
peoples, cultures, and institutions of the Middle East will be studied
by solars for many years to come. But the significance of the
present moment—in all its sound and fury—ought to be of special
interest to democratic theorists. For despite the seemingly ubiquitous
propensity to compare the current uprisings to those preceding the
fall of communism in Eastern and Central Europe in 1989, or to the
wave of progressive revolutions engulfing mu of Europe and Latin
America in 1848,40 the local and global contexts both enabling and
working against the revolts in the Middle East are mu different
from pro-democracy upheavals of previous eras. Simply put, the
circumstances surrounding the laer involve a different cohort of
individuals and groups, ideas, beliefs, geopolitical factors, economic
and historical paerns, and social imperatives. is is not to say that
the grievances registered are not familiar ones: cries for freedom,
equality, accountability, respect for rights and dignity, and justice
would be instantly recognizable to anyone as universal calls for
democracy. But shared vocabularies oen belie fundamentally
different obstacles in the way of boom-up revolts in different
seings and time-periods.
Since the birth of modern democracy, people of different
bagrounds have assembled and mared together to insist on their
right to have rights and basic freedoms; but once free, the struggle to
define the scope and substance of rights and freedoms begins anew.
e nature and aracter of su second-order struggles, in turn, are
conditioned by the contextual seing from whi disagreements
spring. Indeed, this dynamic is currently evident in Tunisia, as
liberal, secular, religious, and a host of other parties vie for power
95
and present to the public their respective plans for revising national
constitutions, managing contentious politics, jumpstarting the
economy, and dealing with political violence. In ea case, as in
others explored above, it is the capacity of the new political order to
be responsive to the needs and input of a diversity of viewpoints that
will put to test its claim to legitimacy.
96
Notes
1 Freedom House scores are based on a seven-point scale, with 1 signifying the most
freedom and 7 the least freedom. Lebanon, Kuwait, and Morocco are classified as
“partly free,” but their scores (4.5, 5, and 4.5, respectively) remain high. All data
pertaining to the MENA region can be accessed at
hp://freedomhouse.org/regions/middle-east-and-north-africa. Last accessed September
20, 2015.
2 World Press Freedom Index ranks 180 countries from best to worst. Only Kuwait (90),
Lebanon (98), and Israel (101) rank in the top 100, but just barely. Some of the most
pivotal and highly populated countries su as Egypt (158), Saudi Arabia (164), Iran
(173), and Syria (177) rank among the worst in the world. e 2015 World Press Index
can be accessed at: hps://rsf.org/en/ranking_table.
3 Although some Persian Gulf countries su as Bahrain, Kuwait, Qatar, and the United
Arab Emirates rank high in HDI metrics, as the U.N. Arab Human Development reports
have consistently demonstrated, the raw ingredients for democratic participation and
representation—inequalities in gender, income, education, and access to health, and
persistent poverty—remain elusive compared to other developing regions. For key Arab
HDI indicators, see: www.arab-hdr.org/data/indicators/. For general U.N. HDI reports,
see: hp://hdr.undp.org/en/content/human-development-index-hdi.
4 Eva Bellin, “e robustness of authoritarianism in the Middle East: Exceptionalism in
comparative perspective,” Comparative Politics, vol. 36, no. 2 (Jan. 2004), 139–57, and
“Reconsidering the robustness of authoritarianism in the Middle East: Lessons from the
Arab Spring, Comparative Politics, vol. 44, no. 2 (Jan. 2012), 127–49. For a critical
treatment of Bellin’s approa, see Raymond Hinnebus, “Authoritarian persistence,
democratization theory and Middle East: An overview and critique,” Democratization,
vol. 13, no. 3 (2006), 373–95.
5 For critical reflections on the uprisings, see Fawaz A. Gerges, ed., The New Middle East:
Protest and Revolution in the Arab World (New York: Cambridge University Press,
97
2014), and Jason Brownlee, Tarek Masoud, and Andrew Reynolds, The Arab Spring:
Pathways of Repression and Reform (New York: Oxford University Press, 2015).
6 Max Weber, The Theory of Social and Economic Organization (New York: e Free Press,
1966), 154. Emphasis in the original.
7 Lisa Anderson, “Authoritarian legacies and regime ange,” in Fawaz A. Gerges, ed., The
New Middle East: Protest and Revolution in the Arab World (New York: Cambridge
University Press, 2014), p. 46. For an earlier iteration of the same point see Anderson’s
“e State in the Middle East and North Africa,” Comparative Politics, October 1987.
8 at authoritarian states come in different forms, and behave different across time and
space is not a new revelation in social science. For the most influential study in political
science, see Juan J. Linz, Totalitarian and Authoritarian Regimes (Boulder, CO: Lynne
Rienner Publishers, 2000).
9 Bruce Bueno de Mesquita, et al, The Logic of Political Survival (Cambridge, MA: MIT
Press, 2003).
10 For an excellent summary of the variety of claims, counter-claims, and compromises
leading to and emerging out of the 2009 presidential election, see Nader Hashemi and
Danny Postel, eds The People Reloaded: The Green Movement and the Struggle for Iran’s
Future (Brooklyn, NY: Melville House, 2010).
11 Melani Camme, Ishac Diwan, Alan Riards, and John Waterbury, A Political Economy
of the Middle East, 4th Edition (Boulder, CO: Westview Press, 2015), p. 5.
12 As Roger Owen has recently explained, “Arab republican presidents in states with lile
or no oil were always closely associated with only a small number of individuals or
groups of men and women. ese included, on occasion, members of their own close or
extended families who used their privileged access to obtain favorable business terms in
exange for various political or economic services.” Roger Owen, The Rise and Fall of
Arab Presidents for Life (Cambridge, MA: Harvard University Press, 2012), p. 49.
13 Fadhel Kaboub, “e making of the Tunisian revolution,” Middle East Development
Journal, vol. 5, no. 1 (2014), pp: 1–21.
14 It is important to note, as Habib Ayeb has shown, that the concentration of wealth and
political power also had a distinct political geography: “Since independence and even
98
before it, the south, center and west of the country have suffered from the economic and
social consequences of the unbalanced and unequal developmental policies that were
particularly concentrated on the capital Tunis, the Sahel, some big coastal cities, su as
Bizerte and Sfax, and tourist zones, including Djerba and Hammamet-Nabel … this is a
large part of the country that observes its resources being transferred to the other part
without any real compensation or benefits in exange.” Habib Ayeb, “Social and
political geography of the Tunisian Revolution: e Alfa Grass Revolution,” Review of
African Political Economy, vol. 38, no. 129 (2011), p. 471.
15 Hayat Alvi makes the argument that human rights principles and the pursuit of social
justice played definitive roles in bringing about the revolution. “e human rights and
development impetuses for Tunisia’s Jasmine Revolution,” Contemporary Review of the
Middle East, vol. 1, no. 1 (2014), pp. 25–51.
16 Roger Owen, “Egypt and Tunisia: From the revolutionary overthrow of dictatorships to
the struggle to establish a new constitutional order,” in Fawaz A. Gerges, ed., The New
Middle East: Protest and Revolution in the Arab World (New York: Cambridge
University Press, 2014), p. 264.
17 For a clear-eyed explanation of the SCAF’s counter-revolutionary rationale and actions,
see Adam Shatz, “Whose Egypt?” London Review of Books, vol. 34, no. 1 (January 5,
2012), 15–17; for more on the SCAF’s place in the network of patronage, see Issandr El
Amrani, “Sightings of the Deep State,” MERIP Online, January 1, 2012. Last accessed
September 20, 2015: www.merip.org/mero/mero010112.
18 Tarek Masoud, Counting Islam: Religion, Class, and Elections in Egypt (New York:
Cambridge University Press, 2014), p. 6.
19 Ibid, p. 210.
20 It must be said—and this a point that I shall expand on further in the next section—that
in the case of Tunisia the role of civil society groups, professional guilds, and human
rights organizations was just as mu, if not more, consequential in ensuring the
democratic trajectory of the transitional process. Indeed, so significant was the role of
these disparate groups that in 2015 the Norwegian Nobel commiee recognized the so-
called Tunisian National Dialogue artet—comprised of unionists, employers, lawyers,
99
and human rights activists—with its Peace Prize. e full citation for the prize can be
found here: www.nobelprize.org/nobel_prizes/peace/laureates/2015/press.html.
21 Raymond A. Hinnebus, Authoritarian Power and State Formation in Ba`athist Syria:
Army, Party and Peasant (Boulder, CO: Westview Press, 1990), pp. 145–9.
22 Bassam Haddad, “e Syrian regime’s business babone,” MERIP, vol. 42, no. 262
(Spring 2012). Last accessed October 10, 2015: www.merip.org/mer/mer262/syrian-
regimes-business-babone.
23 Owen, The Rise and Fall of Arab Presidents for Life, pp. 80–8.
24 According to the United Nations High Commissioner for Refugees, “e exodus from
Syria is the highest recorded since 1992 when the number of refugees from Afghanistan
hit a staggering 4.6 million. In reality, the figure is even higher as it does not include
more than 270,000 asylum applications by Syrians in Europe, and thousands of others
not reseled in regional neighbors.” Last accessed October 12, 2015:
www.unrefugees.org/2015/07/total-number-of-syrian-refugees-exceeds-four-million-for-
first-time/.
25 Lisa Anderson, “Demystifying the Arab Spring: Parsing the differences between Tunisia,
Egypt, and Libya,” Foreign Affairs, vol. 90, no. 3 (2011): 5.
26 “Gaddafi’s son warns of ‘rivers of blood’ in Libya,” Al Arabiya News, February 21, 2011.
Last accessed October 12, 2015: www.alarabiya.net/articles/2011/02/21/138515.html.
27 Hugh Roberts, “Libya and the relessness of the West,” London Review of Books,
September 22, 2012. Last accessed October 20, 2015:
www.lrb.co.uk/blog/2012/09/22/hugh-roberts/libya-and-the-relessness-of-the-west/.
28 See Miael L. Ross, “Does oil hinder democracy?” World Politics, vol. 53, no. 3 (April
2001): pp. 325–61. For a critical analysis of the arguments for and against, see Steven
Haber and Victor Menaldo, “Do natural resources fuel authoritarianism? A reappraisal
of the resource curse,” American Political Science Review, vol. 105, no. 1 (February 2011),
1–26.
29 A Political Economy of the Middle East, p. 7.
30 King Mohammed VI of Morocco went even further by holding a popular referendum on
the constitution that constrained his powers (albeit more symbolically than in practice)
100
and obliged him to more meaningful reforms still. But civil protests were very limited in
size and scope to start, and did not persist mu longer aer the forward momentum of
other large-scale protests in Egypt, Jordan, and Syria had been halted.
31 Sean L. Yom and Gregory Gaus III, “Resilient royals: how arab monaries hold on,”
Journal of Democracy, vol. 23, no. 4 (October 2012), 74–88; and Mehran Kamrava, “e
Arab Spring and the Saudi-led counterrevolution,” Orbis, vol. 56, no. 1 (2012), 96–104.
32 Two especially influential studies are: Mats Berdal and David M. Malone, eds, Greed &
Grievance: Economic Agendas in Civil Wars (Boulder, CO: Lynne Rienner Publishers,
2000); and Paul Collier and Hoeffler Anke, “Greed and grievance in civil war,” Oxford
Economic Papers vol. 56, no. 4 (2004), 563–95.
33 As the surveyors explain, “ree of these features are political (elections, freedom of
expression, and equal political rights) and three are socio-economic (reduction of
inequality, provision of basic necessities su as food, clothing, and shelter, and the
elimination of financial and administrative corruption).”
34 Gamal Abdel Gawad Soltan, Ahmed Nagui Qamha, and Subhi ‘Asila, “Public opinion
report on the most important political and social issues in Egypt,” The Arab Barometer
Project, Al-Ahram Center for Political and Strategic Studies, Cairo, Egypt (June 2011).
Last accessed November 13, 2015:
www.arabbarometer.org/sites/default/files/Egypt%20ABII%20Country%20Report%20Eng
lish.pdf.
35 Khalid Shikaki, “Arab Barometer 3: has Arab support for democracy declined due to the
Arab Spring?” presentation at the United States Institute for Peace, Washington, DC,
October 31, 2014. Last accessed November 13, 2015:
www.arabbarometer.org/sites/default/files/Shikaki%20USIP%20presentation.pdf.
36 Miael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton
University Press, 2003), p. 297.
37 I have offered my own analytical framework in “Democratic solidarity: rethinking
democracy promotion in the new Middle East,” Security Dialogue, vol. 44, no. 5–6
(October–December, 2013), 411–29. Also see, Amaney A. Jamal, Of Empires and
Citizens: Pro-American Democracy or No Democracy At All (Princeton, NJ: Princeton
University Press, 2012).
101
38 Anthony Tirado Chase, Human Rights, Revolution, and Reform in the Muslim World
(Boulder, CO: Lynne Rienner Publishers, 2012), p. 6.
39 Ibid.
40 See the symposium on “Comparing the Arab revolutions,” Journal of Democracy, vol. 22,
no. 4 (October 2011); Miael Zantovvsky, “1989 and 2011: compare and contrast,” World
Affairs, July/August (2011); and Marc Morjé Howard, “Similarities and difference
between Eastern Europe in 1980 and the Middle East in 2011,” The Monkey Cage, May
30, 2011. Last accessed September 20, 2015:
hp://themonkeycage.org/2011/05/30/similarities-and-differences-between-eastern-
europe-in-1989-and-the-middle-east-in-2011/.
102
Selected Bibliography
Bellin, Eva. “Reconsidering the robustness of authoritarianism in the
Middle East: Lessons from the Arab Spring,” Comparative
Politics, vol. 44, no. 2 (January 2012), 127–49.
Brownlee, Jason, Tarek Masoud, and Andrew Reynolds. The Arab
Spring: Pathways of Repression and Reform. New York: Oxford
University Press, 2015.
Chase, Anthony T. Human Rights, Revolution, and Reform in the
Muslim World. Boulder, CO: Lynne Rienner Publishers, 2012.
Fawaz, A. Gerges ed. The New Middle East: Protest and Revolution in
the Arab World. New York: Cambridge University Press, 2014.
Jamal, Amaney A. Of Empires and Citizens: Pro-American
Democracy or No Democracy At All. Princeton, NJ: Princeton
University Press, 2012.
Linz, Juan J. Totalitarian and Authoritarian Regimes. Boulder, CO:
Lynne Rienner Publishers, 2000.
United Nations Development Programme. “Arab Human
Development Index,” Human Development Reports. New York,
2015.
103
3
Economic Rights in the Middle East
and North Africa
Zehra F. Kabasakal Arat
104
Introduction1
Human rights issues in the Middle East and North Africa (MENA)
are usually discussed in relation to authoritarian governance and
state repression of political rights. However, as demonstrated by the
Arab Spring, social and economic rights and issues of economic
justice are equally important to the population living in the MENA
region.2 Public opinion surveys show people’s emphasis on economic
rights and related issues:
A 2005 poll conducted by Zogby International found that expanding employment
opportunities, improving health care and educational systems, and ending corruption
were the most important priorities of citizens across the region. Democracy and civic
and political rights, though also cited, were ranked lower than socioeconomic concerns
… Similarly, the 2010 Arab Youth Survey found that the greatest perceived allenge
and concern of Arab youth was the cost of living, followed by unemployment and then
human rights.3
is apter focuses on economic rights, whi can be defined
differently. In the international human rights law they are blended
with social rights and mentioned under the heading of economic and
social rights, including: the freedom and right to form a family; the
rights to food, housing, shelter, clothing, education; the right to
health and health care; the rights to work, livable wages, rest, join
unions, collective bargaining, strike; and the right to social security,
among others. While the interrelatedness of economic and social
issues makes a neat classification of rights as ‘economic’ and ‘social’
difficult in practice, the philosophical framework employed in the
international forums on human rights has also led the members of
the United Nations and supporters of human rights to repeatedly
stress the interdependency and indivisibility of rights, along with
their universality.4 In this apter, I focus on the rights to
105
employment, livable wage/income, and food, as the central economic
rights and address the rights to education and health care, water,
housing and social security as most closely related to those rights.5
Despite this selection, however, I subscribe to the sool of thought
that endorses the interdependency and indivisibility of not only
social and economic rights but all rights, including the civil and
political rights. In fact, in my discussion of the above-mentioned
rights in the MENA context, I intend to show that the violations of
rights in one domain are linked to the violations in others, and
military conflicts and warfare, whi involve violence and are
discriminatory by default, aggravate them all.
e data and analyses presented here should be received with two
caveats. First, although they display some distinct aracteristics as a
region, the MENA countries’ aitude toward and record of
economic rights are not mu different from the rest of the world.
Second, within the region there are significant differences in
government policies and human rights experiences of people. In
addition to the discrepancies between the oil-ri countries and
poorer/aid-dependent countries,6 people’s experiences within ea
country show variation depending on their class, citizenship, sex,
and other aracteristics. As is the case everywhere, lower classes,
women, migrants, ildren and refugees encounter more problems
and are less likely to enjoy economic rights. Although I approa the
discussion of rights in the region as cognizant of the diversity and
different experiences, this apter inevitably includes some sweeping
statements and generalizations due to the concerns of space and for
the sake of parsimony.
106
Participation in the international human
rights regime
Within the United Nations-led human rights regime, economic
rights were articulated first in the Universal Declaration of Human
Rights (UDHR), adopted by the General Assembly (GA) of the
United Nations (U.N.) in 1948. ey were then elaborated on in the
International Covenant of Economic, Social and Cultural Rights
(ICESCR), whi was adopted on December 16, 1966, and entered
into force on January 3, 1976, in accordance with Article 27, when 35
countries ratified the treaty.
e aitude and behavior of the MENA countries in these
processes were not different from those of other countries. Several
MENA countries actively participated in the draing process of
these two documents, and many became a party to the ICESCR. A
key intellectual contributor to the draing of the UDHR at the U.N.
Commission on Human Rights was Charles Malik of Lebanon, who
also aired the ird Commiee that finalized the dra before it
was submied to the GA for voting. e minutes of the ird
Commiee discussions show interventions by Egypt, Iraq, Lebanon,
Saudi Arabia and Syria.7 When the Declaration was adopted with
only eight abstentions, only one MENA country, Saudi Arabia
abstained. Saudi Arabia’s main objections were related to Article 18
on freedom of thought and religion and to some provisions on
family.8,9,10
Economic and social rights were widely supported by the MENA
countries, particularly by Egypt, Saudi Arabia and Syria, whi also
opposed having two separate covenants.11 Draing the Covenants
involved more countries, since the process of decolonization,
accelerated in the 1950s and 1960s, expanded the U.N. membership.
107
ose who were actively involved in discussions included men and
women from the MENA region: Charles Malik (Lebanon), Jamil
Baroody (Saudi Arabia), Karim Azkoul (Lebanon), Halima Embarek
Warzazi (Morocco), Omar Loutfi (Egypt), Bedia Afnan (Iraq), Jawaat
Mui (Syria), and Mahmoud Azmi (Egypt).12
At the time of voting for the ICESCR, 15 MENA countries were
represented at the GA (Algeria, Egypt, Iran, Iraq, Jordan, Kuwait,
Lebanon, Libya, Morocco, Saudi Arabia, Sudan, Syria, Tunisia,
Turkey, and Yemen). Except Syria, whi did not participate in the
voting, all voted for the Covenant. As seen in Table 3.1, about half of
these countries also ratified the Covenant before December 1976,
thus helping it to enter into force.
Although many of these countries placed declarations or
reservations on the Covenant in most cases the content of the
declaration/reservation is not consequential for the fulfillment of the
state’s human rights obligations. ey are either interpretive
(Algeria) or political, stressing that the ratification of the treaty does
not entail the recognition of Israel (Iraq, Libya, Syria and Yemen).
Only those placed by Bahrain, Kuwait, and Turkey comprise some
restrictions on obligations.
Table 3.1 MENA Countries’ Position on the ICESCR
Country Date of Signature Date of Ratification
Algeria 1968 1989 a
Bahrain 2007 a
Djibouti 2002
Egypt 1967 1982
Iran 1968 1975
Iraq 1969 1971 a,b
Jordan 1972 1975
108
Country Date of Signature Date of Ratification
Kuwait 1996 a,b
Lebanon 1972
Libya 1970 a
Morocco 1977 1979
Oman
Qatar
Saudi Arabia 1986
Sudan
Syria 1969 a
Tunisia 1968 1969
Turkey 2000 2003 a,b
United Arab Emirates
Yemen 1987 a
Palestine N/A N/A
Source: Office of the High Commissioner of Human Rights,
hps://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
3&apter=4&lang=en (Accessed June 11, 2015).
Notes: a Declaration at the time of signature or ratification.
b Reservation placed at the time of signature or ratification.
A systematic comparison of the MENA with other regions is not a
purpose of this paper, but it is reasonable to conclude that the
participation, ratification and reservation rates by the MENA
countries are not significantly different from others. An exceptional
cluster may be the Gulf countries, but ratifications by Bahrain and
Kuwait spoil su a categorization, as well.
109
e right to employment
e causes of the protest movements that swept several countries in
the MENA region in 2011 and came to be known as ‘the Arab
Spring’ were multiple and simmering for a long time. e triggering
event, however, took place on December 17, 2010, when Mohamed
Bouazizi, a 26-year-old unemployed Tunisian engineer, protested the
police’s confiscation of his fruit stand—his last resort to make a
living—through self-immolation. His act resonated in many
countries, because long—term unemployment, especially among the
youth, has been a major problem in the region. With the rapid
population increase, the work force in the region has been increasing
at the fastest rate in the world, without a comparable increase in
demand for labor.13
Unemployment rate can be taken as a crude indicator of the
violation of the right to employment. Based on 2005 figures, the
International Labour Organisation delineated the MENA as the
region with the highest unemployment rate.14 While it tends to be
higher among rural, young, educated and female populations, the
scope of unemployment and the affected population varies from
country to country.
Since the economic structure of oil-exporting ri countries is
very different from that of aid-dependent poorer countries, the labor
markets of these two groups differ, as well. In the former, petro
dollars have allowed significant improvements in the standard of
living, but the dependency on a single capital-intensive sector has
not created many employment opportunities. However, the wealth
generated from oil fueled some other sectors su as construction
and tourism in some countries, but the jobs were filled by workers
imported first from other countries in the region and later from
110
South Asia.15 e consequence became “segmented labor markets”
that include “two separate employment regimes: one for nationals
who are primarily absorbed in the public sector and the other for
migrants who end up in private sector jobs.”16 While some oil ri
countries need to import labor due to their labor shortage, others
prefer foreign workers for their higher skills, lower cost, or docility.
e Sultanate of Oman, for example, is noted for its relatively high
unemployment rates, especially among women and youth, yet it still
employs imported labor.17
us, while unemployment haunts citizens, the other employment
related human rights violations affect the migrant workers most. In
addition to laing access to several social services available to the
citizens, their work environment and conditions tend to be unsafe,
especially for the unskilled laborers. Domestic workers, usually
women from Asian countries and preferred for their docility, are
particularly vulnerable. Moreover, migrant workers la job security.
Following the 1991 Gulf War, for example, Saudi Arabia and Kuwait
punished the countries that were sympathetic to Iraq, or did not side
with them, by expelling their citizens who had been working within
their borders.18 When the expelled Jordanians returned to their
country, unemployment in Jordan jumped from 16 percent to 25
percent.19
e right to employment and other related rights are most
severely violated in countries that are more populated and poorer.
Many of these countries export workers and rely on their
remiances as a major source of foreign currency and as a
substantial part of their national income.20 ese countries have
large, but increasingly shrinking and impoverished agricultural
sectors. Limited arable land, irrigation problems, unequal
distribution of land, and la of investments in the agricultural
sector push the rural population to migrate to the cities to seek
employment or beer earnings.21,22,23,24 Failing to absorb the
111
increasing population—due to both migration from rural areas and
high birth rates—cities produce large informal economies where jobs
are insecure and earnings are low.25
In the formal economies of the MENA, the public sector is larger.
Offering more secure and beer-paying jobs with more benefits, it is
also more aractive than the private sector.26 Dominated by capital-
intensive firms, the formal private sector offers fewer jobs. us,
most of the unemployed are absorbed by informal economies,
usually for entry-level jobs.27 e informal sector also employs
higher proportions of women, young, and ildren.28 e gap
between the public and private sector jobs, in terms of skill, pay,
benefits and security, is observed in oil-ri countries, as well.29 e
public sector in Kuwait, for example, accounts for 75 percent of the
GDP and 95 percent of the national labor force. Combined with a
liberal migrant labor policy, this situation causes the private non-oil
sector to rely heavily on less expensive and sometimes beer-trained
foreign workers.30
e bloated public sector generates disguised unemployment, on
the one hand,31 and serves as a form of welfare system, on the other.
e economic liberalization policies, implemented starting in the late
1970s have, however, crippled the employment and welfare function
of the state.32 As a result of anges in economic and social policies,
in Egypt the employment rate in the informal sector jumped from 4
percent in 1970 to 40 percent in 2000.33
Employment opportunities for women have been relatively
limited in the MENA region. Female participation in the economy
and the type of jobs that women can have, however, vary from
country to country and according to the class and education status
of individual women within ea country. As a result of a “dramatic
growth in the number of women who aained higher education in
the 1970s and 1980s,”34 well-educated upper-or middle-class women
enjoy more opportunities in the formal sector. Teaing, health care,
112
welfare, and manufacturing industries have become relatively more
open to women in most countries.35
However, higher economic participation rate for women is not
always caused by increased opportunities but also occurs due to
increased economic hardship.36 us, neither the wealth of the
country nor the educational aainment rate for women makes a
reliable predictor of the female participation in the workforce. e
strength of patriaral norms, acceptance of conservative
interpretations of Islam, and their codification into the law of the
country seem to be beer indicators.37 Although the oil economy is
oen linked to the marginalization of women in the labor market,38
the recent data do not support that claim. According to the 2014
Human Development Report, female labor participation rate ranged
from 13.4 percent in Syria to 50.8 percent in Qatar.39 As the trend has
not been always upward, the declining rates in Iraq and Syria during
the last few years can be aributed to the obstacles created by the
ongoing wars.
113
e right to livable wages/income
Following the establishment of the Organization of Petroleum
Exporting Countries (OPEC) in October 1973, the MENA region
entered an era that is referred to as the ‘oil decade,’ 1973–82. e
flow of petrodollars and labor migration stimulated the economy
both in oil ri and poorer countries, except for those that depended
on imported oil (e.g. Turkey). e economic boom allowed the wages
to increase. Wages were higher, usually by a factor of two or three,
in the MENA countries compared to many countries in East Asia.40
In the 1980s, however, “income growth in the region collapsed as a
whole and turned negative for many countries,”41 and social
programs have become targets for cuts.42 e structural adjustment
policies (SAPs), imposed on Egypt, Iran, Morocco, Tunisia and
Turkey as conditions for desperately needed loans involved various
austerity measures,43 lowered wages and increased the out of poet
expenses. e neo-liberal economic paradigm, imposed by the IMF
and the World Bank in the 1970s and 1980s, continued to be followed
in Turkey in the subsequent decades in its effort to meet the
economic conditions of European Union membership.44 e negative
impact of these ‘economic reforms’ and the steady decline in public
welfare institutions was felt by “all segments of the population
beyond the wealthy elite, but it has been particularly damaging for
the poor.”45,46
Although the agricultural sector has been neglected in favor of
industry and manufacturing, the growth in these areas could not
compensate for the loss in agricultural earnings. e fastest growing
sector in many countries has been the service sector,47 where the pay
tends to be lower. While wage gaps within MENA countries are no
higher than the gaps observed in other regions, the gaps between oil
114
ri and other countries in the region are significant. Although the
capital-intensive oil industry does not create many jobs, it pays well,
especially for skilled jobs. Moreover, depending on modern services
in the formal sector, capital-intensive firms stay in the formal sector.
Consequently, oil ri countries not only benefit from the wealth
generated from oil exports but also the large tax revenues obtained
from businesses operating in the formal sector. In other countries,
where modern services and infrastructure are modest, on the other
hand, private investments are aracted to the informal sector where
the labor practices are more relaxed and taxes can be avoided.48 e
result is not only lower wages and violation of labor rights but also
circumscribing the state’s ability to tax and use tax revenues for
social services.49 Moreover, income tax rates have been relatively
low, and the government reliance on indirect taxes (e.g. sale taxes),
whi are inherently regressive for applying the same flat rate
regardless of people’s income level, has been punitive for low-
income people.50
On the other hand, large capital-intensive companies enjoy a close
relationship with the government and benefit from a system that can
be aracterized as corporate welfare. For example, in Egypt, in 2010,
politically connected firms in capital-intensive industries (e.g.
pharmaceuticals), received 92 percent of government loans, enjoyed
60 percent of net profits, but accounted for only 11 percent of
employment.51
Inadequate earnings and poverty, both in rural and urban areas,
cause another problem: ild labor. While the scope of ild labor in
the MENA region does not rea the levels noted in South Asia and
sub-Saharan Africa, in some countries it is not only sizeable but also
directly or tacitly supported by the government. Egypt, whi is
estimated to have the largest ild labor rate in the region, had about
1.5 million ildren under the age of 14 working in the 1990s. ese
ildren comprised 9 percent of the age group and 7 percent of the
country’s total labor force, and eight out of ten of these working
115
ildren were employed in agriculture or related areas. It is noted
that the Ministry of Agriculture, whi owned about 10 percent of
Egypt’s coon fields, not only overlooked the regulations that
restrict ild employment but relied upon ildren as young as five
years old to pi coon in the state-owned fields.52
e la of employment opportunities for and the meager
earnings by adults result in a paradoxical situation in whi
unemployment co-exists with ild labor, because ild labor is not a
response to labor shortage but an outcome of poverty.53 us, not
different from the global paern, poorer countries in the MENA
region tend to appear with higher rates of ild labor. No maer
how small, ildren’s earnings are crucial to the survival of poor
households. Yet, ild labor not only violates the working ildren’s
social and economic rights but also denies them their ildhood.
116
e right to food
A persistent problem in the MENA region is food insecurities,
particularly in poor Arab-majority countries. e class biases within
ea country have been decisive, as well. According to a 2005 study,
malnourishment among poor Egyptian ildren was three times
higher than the wealthy ones.54
Most countries buy food from abroad55 and the level of
dependency on imported food has increased over time.56 Turkey is
the sole cereal exporter of the region but is still dependent on
imports for some food items.57 us, when the world food prices
rise, these countries are hit the hardest. Governments try to deal
with food insecurities and avoid mass starvation by devoting a
significant part of social welfare provisions to food subsidies.
Although the primary goal of food subsidies is to make food
affordable for the poor, inefficiencies prevent the poor form receiving
in proportion to their needs. Despite the program design and
delivery problems, subsidies offer considerable relief. When the
staple crops doubled in price and caused the local food prices in Egyt
to rise 37 percent, from 2007 to 2010,58 the government deflated the
consumer cost and made food affordable by investing 8.5 percent of
the GDP in subsidies.59
Subsidies can be explicit or implicit. Explicit subsidies use
identifying cards, coupons or vouers, while implicit subsidies
adjust market prices, tariffs, and currency. States in the MENA
region use different methods. Some employ universal subsidies,
whi apply to the entire population. Usually universal subsidies are
implicit, but some countries employ them explicitly. For example, the
Iraqi government offers rations—including rice, cooking oil, flour,
and milk powder—to every household as a basic safety net.
117
Implicitly applied universal subsidy systems usually include support
systems for producers, increased imports and price ceilings. While
some analysts support universal subsidies for their effective delivery
and avoiding stigma caused by targeted subsidies, others criticize
them for inefficiencies, for being regressive and causing inequitable
distribution, since the wealthy can afford to purase larger shares of
the supply and cause a shortage for the less wealthy.60,61,62 Until the
1990s, Tunisia implemented subsidies largely implicitly, through
price controls and tariffs, but as the program grew more expensive,
the country swited to programs that target poorer populations.63
e Egyptian government issues subsidy coupons, in ‘green books’
or ‘red books’ that carry different statuses.64 International lending
agencies, su as the International Monetary Fund and the World
Bank, pressure countries into eliminating universal subsidy systems.
Although the elimination of subsidies, without an effective
alternative, would be devastating for the majority of the population
in poorer countries, it is also a fact that these policies do not address
the root causes of food insecurities and poverty. Moreover, subsidy
programs are used for the purposes of social stability and control,
rather than to fulfill people’s economic rights.65 For example, it is
argued that the former Egyptian President Mubarak implemented
subsidies, along with other social programs, to promote support for
his government.66
118
e right to education
Modernization projects of post-independent governments involved
wide-ranging social policies that included subsidized staples and
public utilities, health care, pension plans for state employees, and
free sooling.67,68 Recognizing education as an important catalyst
for development, political socialization, and nation building,
nationalist governments invested in the public education system
considerably.69 us, by the 1970s the MENA region managed to
close the gap with other developing regions su as Latin America
and Asia. e increased oil revenues allowed further investment in
education in the 1970s, and educational expansions were particularly
impressive in higher education.70 While increased access to higher
education allowed for social mobility, this was mostly aieved
through government hiring, “resulting in high rates of hidden
unemployment during the 1970s and 1980s.”71,72 e la of
employment opportunities, however, engendered a discontented
educated population, whi ended up being unemployed or
underemployed.
Without increases in employment opportunities, education
stopped serving as a meanism of social mobility. In fact,
educational systems in the region are continuously criticized for
subsidizing higher education for the wealthy and neglecting primary
and secondary education that would help lower classes.73 Poor
quality of instruction, run-down and overcrowded buildings,
unhealthy and inadequate learning environments, and inadequate
aention to producing students with ‘employable skills’ are also
frequently cited by critics.74,75,76
e educational expansion in oil ri countries has been relatively
more successful than in aid-dependent countries. Governments in
119
Qatar, UAE, and Saudi Arabia aracted some prestigious universities
of the United States to establish campuses in their country. While
quality education in these institutions may help students to be more
employable, it is noted that many of these new universities enrolled
a limited number of nationals.77 us, analysts tend to agree that
while education was emphasized, it was never established as a
human resource towards employment.78 We may add that it was
never approaed as a human right. Class, rural-urban and gender
gaps have been wide, though several countries have managed
closing the gender gap for younger generations (i.e. Algeria, Jordan,
Kuwait, Oman, Palestine, Qatar, Saudi Arabia, Tunisia, and UAE).79
120
e right to health and health care
All MENA countries have improved health conditions and
accomplished significant reductions in infant and maternal mortality
rates, and increases in life expectancy.80 e oil boom and
investments anneled to social welfare and health care allowed the
region to close the gap with other developing regions in the 1970s.81
However, economic liberalization, volatile revenues, and the
hardship imposed by military conflicts in several countries stalled
the progress and pushed the MENA below Latin America and East
Asia on health indicators.82 Even those countries that continue to
invest in health care and show rapid increases in health spending
suffer from insufficient health care systems and shortage of medical
personnel.
e division between the oil ri and aid-dependent countries is
most profound in regard to the health allenges that they face and
solutions that they offer.83 Non-communicable diseases su as
obesity, diabetes, and heart diseases are more common and acute in
wealthy countries, while poorer countries struggle with
communicable diseases. Governments in the former group managed
to solve basic health care problems, at least for their nationals, by
offering a higher standard of living and shiing significant funds to
address health issues.84 ese countries have been consistently
ranked higher on the U.N.’s human development index, whi
includes life expectancy at birth, along with income levels and
education aainment rates.85 Despite the increases in spending,
however, they la proper infrastructure, adequate numbers of
hospitals, and educated medical personnel. us, they rely on
migrant labor. Some of these countries also enforce mandatory
medical insurance.86
121
e increasing dependence on insurance companies reduces the
less wealthy populations’ access to health care. Mu of the MENA
region las adequate public health care systems and depends on
private providers and insurance companies. Public health care
systems cover only about 30–40 percent of the population in MENA;
moreover, they are typically limited to citizens working in the public
sector.87 Access enabled through employment leaves out the
majority of the population and practically the entire rural sector.
Health care is another problem: the poor quality, long waits for the
service, and old tenology that aracterize many public health
care systems force large segments of the population to turn to
private providers and insurance companies.88
Communicable diseases continue to be a problem because
preventive health care has not received enough aention, and poorer
countries and rural areas la proper sanitation, as well as access to
clean water.89 Rapid and uneven urbanization, whi led to the
growth of shantytowns with substandard housing,90 aggravated the
situation. Water constitutes a major problem, both in terms of
quantity and quality. Since the water demand exceeds the water
supply, water has been heavily subsidized in the region.91
122
Internally displaced people and refugees
Internally displaced people (IDP) and refugees are not only among
the most vulnerable populations but they also experience many
human rights violations by default. e MENA region has
encountered many conflicts with varying degrees of severity. It is
best known for ‘the Arab-Israeli conflict,’ whi has had the most
devastating impact on Palestinians, who became permanent refugees
in their own land, as well as in several other countries in the region.
According to the United Nations Relief and Works Agency for
Palestinian Refugees in the Near East (UNRWA), “some 5 million
Palestine refugees are eligible for UNRWA services” and “Nearly
one-third of the registered Palestine refugees, more than 1.5 million
individuals, live in 58 recognized Palestine refugee camps in Jordan,
Lebanon, the Syrian Arab Republic, the Gaza Strip and the West
Bank, including East Jerusalem.”92 241,000 Palestinians are registered
in Saudi Arabia.93
Other internal and international conflicts, su as recurring civil
wars in Yemen, Lebanon, and Sudan, the conflict over the Western
Sahara, the Soviet invasion of Afghanistan, the repression of Kurds
and the PKK insurgency in Turkey, and the three Gulf Wars,94
uprooted many more people who became IDP or refugees. As the
protest movements of the Arab Spring turned into armed conflicts in
Libya and Syria, the number of the displaced in the region increased
significantly. While the IDP or refugee status entails enormous
hardship under the best circumstances, the massive population flows
into unprepared and relatively poor countries engender living
conditions and local hostilities that violate human rights and human
dignity on a daily basis.
123
Conclusion
Although the state of economic rights in the MENA has been
problematic, the region does not fare any worse than other
developing regions, except in terms of unemployment. In fact, the
proportion of population living in poverty tends to be lower than it
is in other regions, and the income inequality levels are “relatively
modest, with GINI coefficients ranging between 0.32 and 0.41” in
Arab countries,95 0.40 in Turkey, and 0.44 in Iran.96 Yet, it is
particularly difficult to accept the poor economic rights conditions in
countries that are wealthy. We may aribute the problems in those
countries to mismanagement of resources and la of political will.
However, the roles of external interference, both economic and
military, and the la of cooperation among the countries within the
region cannot be underestimated. Conflicts and militarization of the
region absorb a good portion of the wealth, and both in ri and
poor countries governments divert significant funds to arms exports
and to sustain large defense forces and institutions. Instability in the
region also triggers capital flight because the affluent tend to secure
their wealth by banking and investing their money in other
countries.
In 1992, some 20 international solars met to discuss the
economic impact of the Arab–Israeli conflict and laid out the
possible economic benefits of peace and cooperation.97 A few years
later, their sentiments were reiterated by others, who addressed
possible development outcomes of cooperation with a greater
optimism.98 While the continuation of conflicts addressed in those
studies prevented the realization of their proposals,99 since then the
region has been drawn into further conflict and has experienced
both international and civil war more widely. us the prospect of
124
economic rights in the region remains grim for the majority of the
population, at least in the near future.
125
Notes
1 I would like to thank my assistants Nellie Binder, Abdullah Hasan, and Rubayet Lasker
for their library resear and preparatory work.
2 ere is no agreed definition of the MENA region. For the purposes of this paper, it is
defined to include all North African countries and the narrowly defined Middle East,
whi includes Turkey, Iran and Arab-majority countries. Although geographically a
part of the Middle East, Israel is le out due to its rather unique position in the region.
See Table 1 for the list of countries.
3 Alan Riards et al., A Political Economy of the Middle East, 3rd ed. (Boulder, CO:
Westview Press, 2013).
4 e interdependency of rights was affirmed in outcome documents produced at the two
Human Rights Conferences held by the United Nations. In addition to the Proclamation
of Teheran, issued in 1968, the Vienna Declaration and Programme of Action of 1993
stresses that human rights are not only universal but also “indivisible and
interdependent and interrelated” and of equal importance for human dignity. See,
Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts.,
48th Sess., 22d plen. mtg., part I, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M.
1661 (1993). For some other references on interdependency of rights at international
forums, see Zehra F. Kabasakal Arat. “Human rights and democracy: expanding or
contracting” in Polity vol. 32, no. 1 (1999): 119–144.
5 Right to property is excluded due to its ambiguous treatment in the Universal
Declaration of Human rights and omission in the International Covenant on Economic
Social and Cultural Rights. For a discussion of the implication of these and
complications related to property rights, see Zehra F. Kabasakal Arat. “Human rights
ideology and dimensions of power: the state, property, and discrimination” in Human
Rights Quarterly vol. 30, no. 4 (2008): 906–932, especially the sections on economic
dimension of power.
126
6 It is noted that “the average Arab state derives greater aid rents than the average low-
income country or than a state in sub-Saharan Africa. Over the last fiy years, the
MENA region received roughly three times more net aid per capita than Latin America”
(Malik 2014, 100).
7 Susan Waltz, “Universal human rights: e contribution of Muslim states,” Human
Rights Quarterly 26, no. 4 (2004): 801–844.
8 Ibid.
9 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights (New York: Random House Publishing Group, 2001).
10 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and
Intent (Philadelphia: University of Philadelphia Press, 1999).
11 Waltz, “Universal human rights.”
12 Ibid.
13 Riards et al., A Political Economy of the Middle East.
14 Ibid.
15 Ibid.
16 Adeel Malik, “A requiem for the Arab developmental model,” Journal of International
Affairs vol. 68, no. 1 (2014): 93–115.
17 Mojca Zerovec and Marike Bontenbal, “Labor nationalization policies in Oman:
implications for Omani and migrant women workers,” Asian and Pacific Migration
Journal vol. 20, no. 3–4 (2012): 365–387.
18 Riards et al., A Political Economy of the Middle East.
19 Hani Abu-Jabarah, “Economics of Peace: Jordan,” in The Economics of Middle East Peace:
Views from the Region, ed. Stanley Fiser, Dani Rodrik, and Elias Tuma (Cambridge:
MIT Press, 1993), 181–199.
20 Riards et al., A Political Economy of the Middle East.
21 Ibid.
127
22 Pierre-Riard Agenor et al., “Labor market reforms, growth, and unemployment in
labor-exporting countries in the Middle East and North Africa,” Journal of Policy
Modeling vol. 29, no. 2 (2007): 277–309.
23 Gad G. Gilbar, The Middle East Oil Decade and Beyond: Essays in Political Economy
(London: Frank Cass, 1997).
24 Alan Riards, “Food problems and state policies in the Middle East and North Africa,”
in Pursuing Food Security: Strategies and Obstacles in Africa, Asia, Latin America, and
the Middle East, ed. W. Ladd Hollist and F. LaMond Tullis (Boulder, CO: Lynne Rienner
Publishers, 1987), 287–311.
25 Agenor et al., “Labor market reforms, growth, and unemployment in labor-exporting
countries in the Middle East and North Africa.”
26 Riards et al., A Political Economy of the Middle East.
27 Malik, “A requiem for the Arab developmental model.”
28 Riards et al., A Political Economy of the Middle East.
29 Mohamed Chemingui, “Petroleum revenues in Gulf Cooperation Council Countries and
their labor market paradox,” Journal of Policy Modeling vol. 30, no. 3 (2008): 491–503.
30 Ibid.
31 Gilbar, The Middle East Oil Decade and Beyond.
32 Jane Harrigan and Hamed El-Said, Economic Liberalisation, Social Capital and Islamic
Welfare Provision (New York: Palgrave Macmillan, 2009).
33 Malik “A requiem for the Arab developmental model.”
34 Gilbar, The Middle East Oil Decade and Beyond.
35 Valentine Moghadam, “Women’s economic participation in the Middle East,” Journal of
Middle East Women’s Studies 1, no. 1 (2005): 110–146.
36 Zehra F. Kabasakal Arat, “Women’s rights and the UN: would aieving gender equality
empower women? Feminisms,” American Political Science Review 109, no. 4 (2015): 674-
689.
128
37 Valentine Moghadam and Farzaneh Roudi-Fahimi, Reforming Family Laws to Promote
Progress in the Middle East and North Africa (Population Reference Bureau, May 5,
2005), accessed June 11, 2015.
38 Tyra Murielle Bouhamdan, “Religion, the law and the human rights of women in the
Middle East: a quantitative analysis,” 2009.
39 See Human Development Report (New York: UNDP, 2014). Syria is followed by Iraq,
Algeria, Palestine, Jordan, Iran and Saudi Arabia, with rates in teens; Lebanon, Egypt,
Tunisia, Yemen, Oman and Turkey, with rates in twenties; Libya, Sudan; Djibouti,
Bahrain in thirties; and Morocco, Kuwait, and United Arab Emirates with over 40
percent.
40 Moghadam, “Women’s economic participation in the Middle East.”
41 Riards et al., A Political Economy of the Middle East.
42 Massoud Karshenas, Valentine Moghadam, and Randa Alami, “Social policy aer the
Arab Spring: states and social rights in the MENA region,” World Development 64
(2014): 726–739.
43 Riards et al., A Political Economy of the Middle East.
44 Zehra F. Kabasakal Arat and omas Smith, “e EU and human rights in Turkey:
Political freedom without social welfare?,” in European Institutions, Democratization,
and Human Rights Protection in the European Periphery, ed. Henry Carey (Lanham,
Maryland: Rowman and Lilefield, 2014), 31–65.
45 Riards et al., A Political Economy of the Middle East.
46 Riards, “Food problems and state policies in the Middle East and North Africa.”
47 Riards et al., A Political Economy of the Middle East.
48 Roger Gordon and Wei Li, “Puzzling tax structures in developing countries: A
comparison of two alternative explanations,” in Fiscal Policy and Management in East
Asia, ed. Takatoshi Ito and Andrew K. Rose (Chicago: University of Chicago Press,
2007), 9–35.
49 Riard Grabowski, “Implicit taxation of agriculture in Egypt: e cause of development
failure in Egypt,” African Development Review vol. 24, no. 2 (2012): 183–193.
129
50 Riards et al., A Political Economy of the Middle East.
51 Malik, “A requiem for the Arab developmental model.”
52 Emad Mekay, “An economic essential? (Child labor in Egypt),” The Middle East vol. 272
(1997): 38–40.
53 Zehra F. Kabasakal Arat, “Analyzing ild labor as a human rights issue: Its causes,
aggravating policies, and alternative proposals,” Human Rights Quarterly vol. 24, no. 1
(2002): 177–204.
54 Riards et al., A Political Economy of the Middle East.
55 Ibid.
56 Riards, “Food problems and state policies in the Middle East and North Africa.”
57 Riards et al., A Political Economy of the Middle East.
58 “Let them eat baklava,” The Economist (Mar 17, 2012).
59 Karshenas, Moghadam, and Alami, “Social policy aer the Arab Spring.”
60 Anshul Jain, “Revolution, resilience and the pirates’ paradox: Food subsidies, economic
complexity and regime durability across the Middle East and North Africa,” Journal of
Asia Pacific Studies 3, no. 3 (2014): 367–384.
61 Carlo Sdralevi et al., Subsidy and Reform in the Middle East and North Africa: Recent
Progress and Challenges Ahead (Washington, DC: International Monetary Fund, 2014).
62 Malik, “A requiem for the Arab developmental model.”
63 Jain, “Revolution, resilience and the pirates’ paradox.”
64 Ibid.
65 Karshenas, Moghadam, and Alami, “Social policy aer the Arab Spring.”
66 Hu-ju Kwon, andika Mkandawire, and Joakim Palme, “Introduction: social policy
and economic development in late industrializers,” International Journal of Social
Welfare 18, no. 1 (2009): S1–S11.
67 Karshenas, Moghadam, and Alami, “Social policy aer the Arab Spring.”
68 Pension plans for the state employees were later expanded in some countries to include
other social security and welfare benefits su as disability, work injury and
130
unemployment insurance, siness and maternity leave, and family allowances
(Karshenas, Moghadam and Alami 2014, 734).
69 Riards et al., A Political Economy of the Middle East.
70 Gilbar, The Middle East Oil Decade and Beyond.
71 Ibid.
72 Ingo Forstenlener and Emilie Rutledge, “Unemployment in the Gulf: Time to update
the social contract,” Middle East Policy 17, no. 2 (2010): 38–51.
73 Riards et al., A Political Economy of the Middle East.
74 Malik, “A requiem for the Arab developmental model.”
75 Karshenas, Moghadam, and Alami, “Social policy aer the Arab Spring.”
76 Riards et al., A Political Economy of the Middle East.
77 Ingo Forstenlener and Emilie Rutledge, “Unemployment in the Gulf: Time to update
the social contract,” Middle East Policy 17, no. 2 (2010): 38–51.
78 Kwon, Mkandawire, and Palme, ‘Social policy and economic development in late
industrializers.’
79 Riards et al., A Political Economy of the Middle East.
80 Ibid.
81 Karshenas, Moghadam, and Alami, “Social policy aer the Arab Spring.”
82 Riards et al., A Political Economy of the Middle East.
83 Karshenas, Moghadam, and Alami, “Social policy aer the Arab Spring.”
84 Peter Feuilherade, “GCC healthcare spending surges as demand soars,” The Middle East,
2015, accessed June 11, 2015.
85 e 2013 rankings are: 31 Qatar; 34 Saudi Arabia; 40 UAE; 44 Bahrain; 46 Kuwait; 55
Libya; 56 Oman; 65 Lebanon; 69 Turkey; 77 Jordan; 90 Tunisia; 93 Algeria; 107 Palestine;
110 Egypt; 118 Syria; 120 Iraq; 129 Morocco; 135 Iran; 154 Yemen; 166 Sudan; and 170
Djibouti (Human Development Report 2014).
86 Feuilherade, “GCC healthcare spending surges as demand soars.”
131
87 Karshenas, Moghadam, and Alami, “Social policy aer the Arab Spring.”
88 Ibid.
89 Ibid.
90 Riards et al., A Political Economy of the Middle East.
91 Ibid.
92 See the official website of the UNRWA, www.unrwa.org/palestine-refugees (Accessed
June 18, 2015).
93 Riards et al., A Political Economy of the Middle East.
94 ey include: Iran–Iraq in 1980–8; Iraq–Kuwait and its international allies in 1991; and
the United States-led war against Iraq that started in 2003.
95 Malik, “A requiem for the Arab developmental model.”
96 Turkey’s figure is for 2011 and reported by the World Bank.
hp://data.worldbank.org/indicator/SI.POV.GINI (Accessed June 19, 2015). e statistics
for Iran is for 2006 and posted by the CIA. See, www.cia.gov/library/publications/the-
world-factbook/rankorder/2172rank.html (Accessed June 19, 2015). Some of these figures
should be interpreted with caution, because they may not be comparable and indicators
tell partial stories. For example, while only 17.5 percent of the population in Yemen is
aracterized as living in poverty by the PPP$1.25/a day measure, nearly 53 percent is
listed as multi-dimensionally poor (Malik 2014, 105).
97 Stanley Fiser, Dani Rodrik, and Elias Tuma, eds, The Economics of Middle East Peace:
Views from the Region (Cambridge: MIT Press, 1993).
98 Ali Çarkoglu, Mine Eder, and Kemal Kirisci, The Political Economy of Regional
Cooperation in the Middle East (London: Routledge, 1998).
99 is should not mean that their proposals geared toward fulfilling economic rights. In
fact, some of the proposed policies, su as economic liberalization and cuing
subsidies, would have likely to had detrimental impacts on economic rights, even if they
helped stimulating economic growth. On the negative impact of warfare and military
spending and possibility for a ange with a more reserved optimism, see William B.
132
andt, “e Middle East on the brink: Prospects for ange in the 21st century” in
Middle East Journal vol. 50, no. 1 (1996): 9–17.
133
Selected Bibliography
Arat, Zehra F. Kabasakal. “Analyzing ild labor as a human rights
issue: Its causes, aggravating policies, and alternative proposals.”
Human Rights Quarterly vol. 24, no. 1 (2002): 177–204.
Arat, Zehra F. Kabasakal, and Smith, omas. “e EU and human
rights in Turkey: Political freedom without social welfare?” In
European Institutions, Democratization, and Human Rights
Protection in the European Periphery, edited by Henry Carey, 31
–65. Lanham, MD: Rowman and Lilefield, 2014.
Chemingui, Mohamed. “Petroleum revenues in Gulf Cooperation
Council Countries and their labor market paradox.” Journal of
Policy Modeling vol. 30, no. 3 (2008): 491–503.
Feuilherade, Peter. “GCC healthcare spending surges as demand
soars.” The Middle East, 2015. Accessed June 11, 2015.
www.themiddleeastmagazine.com/wp-mideastmag-
live/2014/11/business-healthcare-spending-surges-demand-soars.
Gilbar, Gad G. The Middle East Oil Decade and Beyond: Essays in
Political Economy. London: Frank Cass, 1997.
Jain, Anshul. “Revolution, resilience and the pirates’ paradox: Food
subsidies, economic complexity and regime durability across the
Middle East and North Africa.” Journal of Asia Pacific Studies
vol. 3, no. 3 (2014): 367–384.
Karshenas, Massoud, Valentine Moghadam, and Randa Alami.
‘Social policy aer the Arab Spring: States and social rights in
the MENA region.’ World Development vol. 64 (2014): 726–739.
Malik, Adeel. “A requiem for the Arab developmental model.”
Journal of International Affairs vol. 68, no. 1 (2014): 93–115.
Moghadam, Valentine. “Women’s economic participation in the
Middle East.” Journal of Middle East Women’s Studies vol. 1, no.
134
1 (2005): 110–146.
Riards, Alan, John Waterbury, Melani Camme, and Ishac Diwan.
A Political Economy of the Middle East. 3rd ed. Boulder, CO:
Westview Press, 2013.
Waltz, Susan. “Universal human rights: e contribution of Muslim
States.” Human Rights Quarterly vol. 26, no. 4 (2004): 801–844.
135
4
Cultural Rights in the Middle East
and North Africa
Art, revolution, and repression
Mark LeVine
136
Introduction
e dynamics surrounding freedom of cultural and artistic
expression are part of a set of intertwined issues related to the place
of human rights in contemporary societies in the Middle East and
North Africa (MENA). is apter explores the nature and
dynamics of cultural and artistic rights in the context of
governments’ silencing and censorship of cultural expression and
spee more broadly across the MENA. is context brings into play
human rights discourses, the constitutional and legal framework in
whi these rights (and their curtailment) are situated, and finally
the specific experiences of some of the region’s most important
political and revolutionary artists during the half decade of the ‘Arab
Spring era’ (whi here includes the Iranian Green movement of
2009 and the Turkish Gezi protests of 2013). More broadly, this
apter recognizes the transformative and even revolutionary
potential of art, whi is why governments both aempt to
instrumentally use it to their benefit and to repress art that
allenges its systems of control.
It is not surprising that censorship is a core meanism of
controlling populations in highly authoritarian societies, for the act
of silencing human expression is the epitome of how states “control
and intervene in the liberal subject’s absolute right to free
expression.”1 Most aention is paid to press and internet censorship.
Far less aention is paid, however, to the way governments aempt
to control and censor artistic production, despite the long and oen
illing history of repression of cultural and particularly artistic
expression across the region. As the U.N. Special Rapporteur on
Cultural Rights describes it, “Artistic voices have been or are being
silenced by various means and in different … political, religious,
137
cultural or moral, or … economic ways.”2 Yet to this day there have
been few analyses of the dynamics by whi su silencing has
occurred, despite the powerful role of the arts in the protests, revolts
and uprisings.
Indeed, despite the move towards greater political freedoms in
some countries in the wake of the Arab uprisings of the last half-
decade, censorship and government repression regarding freedom of
expression and artistic freedom have continued and in many cases
worsened in most every country, including already democratic
Turkey and newly democratic Tunisia.3 To understand why it is
important to focus on these rights, even as other political, economic
and social freedoms and rights also continue to be trampled upon,
we need first to discuss precisely how culture and cultural rights fit
into the larger framework of human rights.
138
Cultural freedom and expression in the era of
neoliberal globalization
Any discussion of cultural rights and freedom of expression in the
MENA has the unenviable task of bringing together arguments and
aitudes derived from fieen centuries of Islamic thinking about art,
culture and freedom of thought, three centuries of post-
Enlightenment philosophical and political discussions of ‘culture’
and ‘rights,’ more than half a century of post-1945 international law
regarding human rights, a quarter century (at least) of neoliberal
globalization and its unprecedented transformation in the ways in
whi culture is produced, circulated and consumed, and more than
half a decade of political unrest across a region streting from
Morocco to Iran.
Like most great epistemological and discursive systems, Islamic
beliefs, practices and cultures have long had an ambivalent
relationship to cultural expression and freedoms. Islamic history has
witnessed some of humanity’s most innovative and aesthetically
complex and hybrid cultural and artistic creation, as well as some of
the most intensive aempts to limit and circumscribe both. Su
contradictory impulses remain today; as I explain below, most
Muslim majority countries censor or otherwise restrict artistic
production on the justification of specific conservative
interpretations of Islamic law or morality. Yet these same countries
are home to some of the most powerful and original cultural
productions of the global era.4 Here I will deal with the
contemporary situation as it’s evolved in the era of neoliberal
globalization.
139
Globalization and cultural expression and freedom
A discussion of how freedom of cultural/artistic expression has been
experienced in the MENA region necessitates first a discussion of
how cultural rights and freedom of expression fit into the wider
discourse of human rights. In the MENA’s revolutionary and post-
revolutionary periods (late 2010 to the present) we can delineate
three stages in struggles for cultural rights: those where protests led
to significant constitutional anges (Tunisia, Egypt, and Morocco),
those where protests were successfully pacified by either significant
state violence or various forms of cooptation, or both (Bahrain and
the other Gulf countries, Jordan, Iraq, Palestine, and Iran), and
countries where these struggles have been subsumed by broader civil
wars (Syria, Libya, and Yemen).
Turkey merits separate mention in su a sema because its Gezi
Park protests, while resembling and to a significant extent inspired
by the so-called Arab Spring protests (and the global Occupy
movement that emerged soon aer their outbreak), occurred in a
functioning parliamentary democratic (if increasingly allenged)
system. Additionally, we need to assess the relationship between
constitutional and legal regimes relating to cultural and artistic
freedom, censorship and similar issues, and the practices on the
ground in whi su regimes have varying degrees of impact. at
is to say, sometimes existing prohibitions can be effectively ignored
by artists and at other times existing or newly enshrined freedoms
are ignored by governments or conservative social forces.
e era of ‘globalization’ is oen identified with political
beginnings in the Eastern European revolutions of 1989, the demise
of the Soviet Union soon thereaer, and the rise of the unipolar,
American-dominated ‘New World Order.’ A core component of the
1989 revolutions was, for many solars, the rise of independent civil
societies and public spheres, whi increasingly succeeded in
operating outside government control. is helped shape public
140
consciousness around fundamental human rights that provided the
intellectual and epistemological foundations for aaing the
authoritarian states of Eastern Europe. Unfortunately, in the MENA
maers moved in the opposite direction, as neoliberal policies led to
greater corruption and inequality in what had previously been one
of the world’s more egalitarian regions, as well as the rise of
‘security states’ (cf. Amar 2013) that depended on greater
surveillance and repression of citizens in the absence of improving
their human development.
On the other hand, during the 1990s new tenologies associated
with globalization—computers, satellite televisions, mobile phones
and the internet and social media—would begin penetrating the
region, exploding in their usage and importance in the 2000s. ey
enabled the allenge of authoritarian governments at a moment in
whi the old ‘patrimonial bargains’ between states and societies
were breaking down in response to ‘structural adjustment’ policies
that cut government spending on social spending su as health and
education, as well as states’ abilities effectively to generate
employment for rapidly expanding populations.
As the promised benefits of economic globalization passed by the
majority of the MENA’s inhabitants (even as it enried elites), it
was culture that became the most powerful vehicle for the
incorporation of the region into the anging global system.5 Here it
is important not to understand culture in static terms, as simple
aesthetic products, but rather as the performance of people’s
identities. e notion of performance is crucial. Performing culture is
an inherently public act, puing the individual or group in direct
contact, and thus at some point conflict—with other members of
society. And of the performative components of culture it is art—
from music to painting, theater to poetry—that is the most
inherently public. is is true even when the public in question is
limited, by censorship or other laws or customs, to a small number
of people consuming the art more or less clandestinely.
141
Cultural rights, and as part of them freedom of expression, have
always been ‘bound closely’ to the broader discourse of human
rights.6 Articles 16, 18, and 22 through 27 of the Universal
Declaration of Human Rights (UDHR) specifically treat cultural
issues, declaring in Article 22 that “everyone is entitled to the
realization of the economic, social and cultural rights indispensable
for his dignity.” Other culture-related rights dealt with in the UDHR
include the right to marry (Art. 16), the right to “freedom of thought,
conscience and religion” (Art. 18), the right to work and form labor
unions (Art. 23), to rest and leisure (Art. 24), to a decent standard of
living (Art. 25), to education (Art. 26) and “to freely participate in the
cultural life of the community, to enjoy the arts, and to share in
scientific advancement,” as well as to “the protection of the moral
and material interests resulting from any scientific, literary or
artistic production of whi he is the author” (Art. 27).
Even more broadly, Articles 28 and 29 lay out the right of
everyone to live within a “social and international order in whi
the rights and freedoms set forth in this Declaration can be fully
realized.” What is more, ‘cultural development’ is directly tied to the
right to self-determination—from Western Sahara to Palestine,
peoples who are denied their right to self-determination rarely have
a full measure of cultural freedom and rights either, whi is in turn
tied to the ‘development,’ ‘diffusion,’ and ‘openness’ of culture to
everyone (ICESCR, Part 1, Arts. 1, 15). ere is thus not merely the
individual right to core cultural freedoms but also the societal level
obligation of states and citizens alike to ensure ea member of their
society can exercise these rights, as further elaborated in treaties
su as the International Covenant on Economic, Social and Cultural
Rights, the International Covenant on Civil and Political Rights, the
Convention on the Rights of the Child and the Convention on the
Elimination of All Forms of Discrimination Against Women, among
others.
142
e increasing penetration of globalized culture profoundly
impacted societies around the world. What Arab critics have
referred to as the ‘cultural invasion’ (ghazu thaqafi) from the West
began with satellite television, whi exploded in the 1980s and
1990s across the region, bringing everything from first run
Hollywood films to soap operas and pornography to an
unprecedented share of the Arab public with lile effective
censorship. And yet despite intense criticisms, the people of the
region also absorbed, integrated, and retooled the most important
tenologies and cultural products emerging during this era.
e most profound phenomenon was the rise of alJazeera as the
first broadly independent Arabic-language news source in the Arab
world. is opened up the public sphere to unprecedented levels of
criticism of Arab leaders and the existing order more widely.
AlJazeera was a turning point because its most popular shows
allowed the audience to call and express uncensored views that
would easily land them in jail if uered openly in their home
countries. But alJazeera was not the only annel to profoundly
impact segments of the local population. Another network—MTV—
also fundamentally anged the viewing habits, and culture, of a
crucial segment of the population, as shows like “Headbangers Ball”
and “Yo! MTV Raps” brought heavy metal and hiphop to an
emerging generation of Arabs at precisely the time the region’s
“unprecedented youth bulge” exploded.7
is kind of interaction between media and audience became a
core experience with the rise of the internet and social media.
Indeed, the explosion of internet-driven social media gelled perfectly
with the do-it-yourself (DIY) aitude at the core of music and arts
scenes like heavy metal, hiphop, and graffiti. Beginning with email
listservs and blogs before moving to Myspace, Facebook, Twier and
other interactive social media, these media provided unprecedented
abilities for alienated young people with no investment in the
existing systems and lile hope for a beer future to communicate
143
outside the control of authoritarian and conservative political and
social orders. At the core of these social media tenologies was the
creation of communities of solidarity—subcultures that would
become counter cultures and ultimately, in some cases and for a
time, politicized revolutionary cultures with whi existing regimes
of control could not cope.8 ese emerging subcultures eventually
came to be at the core of the Arab uprisings.
144
Censorship as a constraining and
constructive force
Censorship has constrained and even defined the production of
culture across the MENA region since the colonial era, despite being
a direct violation of Article 19 of the Universal Declaration of
Human rights and of the International Covenant on Civil and
Political Rights. At the same time, not all types or rationales for
censorship are equal or operate on the same dynamics. Broadly
speaking, we can delineate two types of censored spee—moral and
political, and three forces involved in it—governments, social
pressure, and market forces. ese then are expressed in two modes,
active and passive, or self-censorship.
Moral censorship involves censoring spee, including and oen
particularly artistic spee, that is perceived to violate social norms
and mores and threaten the social and moral order of society.
Sexually related or explicit spee is the most common example of
this type of motivation for censorship, along with spee that mos
or allenges religious or cultural beliefs and/or identities. is
motivation for censoring freedom of expression or broader cultural
rights (for example, the right to marry whomever one wants) can
remain in force to various degrees, and even intensify, aer
transitions to democratic rule.
e second type of censorship involves silencing political spee.
In our cases, this involves silencing artistic expression that criticizes
governments or elites. is is the censorship that is most relevant to
the immediate context of the uprisings in Iran, the Arab world and
Turkey, although all Arab/Muslim countries also have fairly
extensive moral censorship regimes that in fact under normal
145
circumstances constitute the bulk of the active censorship of artistic
production.
For both types of censorship, the silencing of spee usually
occurs through a combination of legal, administrative, juridical, and
police actions by governments, social pressure by religious and other
social movements, and economic pressure through the refusal of
economic entities su as record companies, radio stations, music
video annels or programs, and advertisers to produce, broadcast or
finance their music. Finally, active censorship results from the
actions or directives of those in political, social and/or economic
power against artists. It can vary in intensity from merely
aempting to prevent the distribution of censored artistic works to
imprisoning, torturing and/or killing artists (as happened, for
example, with the brutal murder of Syrian protest singer Ibrahim
Qashoush, who was killed almost certainly by government assassins
who slit his throat and ripped out his vocal ords). Passive self-
censorship, as the term suggests, occurs when artists censor their
own work because they fear what state, social or corporate/market
forces might do to them if they do not.
is matrix helps us understand the complexity of the dynamics
surrounding censorship and the broader denial of freedom of
expression for artists across the MENA region. Under normal
conditions censorship does not work merely through repression.
While we tend to conceive of censorship in zero-sum terms, in
reality negotiation between the censor and the censored is crucial to
the process fulfilling one of its essential functions, not so mu to
exclude people or ideas as to shape and incorporate them into the
broader social body in a disciplined manner. Indeed, in countries like
Egypt or Morocco negotiations can and do occur with state censors
over issues related to sexuality in videos or lyrics, while even the
most conservative of countries, Saudi Arabia, is home to the
purveyors of some of the Arab world’s most hyper-sexualized pop
music.
146
On the other hand, by definition, revolutionary artists are seeking
to radically ange the system. eir art becomes a “key means of
revolution,” as the revolutionary Egyptian hiphop artist Deeb
explains it as they become truly “political” artists.9 e goal of most
governments, then, is where possible to co-opt potentially
revolutionary artists before they can allenge them, or at least
redirect their activities away from directly allenging the system
through various combinations of incentives. ese include
everything from direct or indirect patronage, to either threats of or
actual censorship and repression.
As internet usage skyroeted and more citizens took up social
media in the early 2000s, the dynamics surrounding censorship
anged. Direct censorship by governments was no longer a primary
concern for many musical artists because the internet afforded them
opportunities to rea unprecedented numbers of people more or less
outside of government control. e religious extremism of the
previous decade, whi had led to aas and even murder of artists
and was accompanied by arrests and prosecution of artists and fans,
gave way to a more laissez faire aitude towards most forms of
popular music, both by governments and many socio-religious
movements.
However, other arts were not as positively impacted by the
internet as music, whi was uniquely able to take advantage of the
manner in whi new tenologies allowed for low-cost and even
free production, distribution and consumption to an
unprecedentedly wide audience, almost completely outside the
control of any government or social group. In comparison, art forms
su as theater or graffiti are mu more dependent on control over
specific spaces, whi gives governments the upper hand in
authoritarian societies except at moments of intense political
upheaval or revolution, su as occurred in Iran in 2009, the Arab
world in 2010–12 and Turkey in 2014.
147
Constitutions versus laws
In looking at the legal regime under whi censorship has operated
across the region, three main areas need to be differentiated. e first
are the broad principles outlined in constitutions, whi have tended
to offer statements of support for media, press and artistic freedom
as well as freedom of spee. e second layer is that, even where
constitutions offer generic free spee protections, specific laws in
force can remain quite restrictive. Unless courts rule that these laws
are unconstitutional they remain the arbiter of spee in legal and
political practice. Finally, normatively there are the administrative,
political, economic, and social (especially religious) meanisms of
control that can effectively control most spee through the forms of
pressure they exert.
A full review of the MENA’s legal and constitutional
environments regarding freedom of expression and artistic freedom
is beyond the scope of this apter. e dynamics in operation in
Egypt, Morocco, Tunisia, Turkey, and Iran offer a good sampling of
the broader dynamics in operation across the region. ey
demonstrate the wide gaps between rhetoric and loy ideals on the
one hand, and practice on the other, while also highlighting the
more recent trend for governments to use anti-terror and cyber-
crime legislations as a way to circumscribe rights at the legislative
and then judicial levels even as constitutions protect freedom of
expression at the broadest level.10
Case studies of the constitutional-legal context
148
If we begin with Egypt, Articles 47 and 48 of the Mubarak-era
constitution prohibited censorship of the press and guaranteed
“every individual … the right to express his opinion and to publicize
it verbally or in writing or by photography or by other means within
the limits of the law.” And that was and remains precisely the
problem, as some three dozen articles in numerous laws directly
imposed, and today even aer two major constitutional revisions
continue to impose, censorship, fines and/or imprisonment for
opinions, views or other content deemed to violate laws or
morality.11 What is more, the ‘state of emergency’ in place since the
assassination of President Sadat in 1981 allowed detention without
trial and without explicit reasons, allowing for even more leeway in
repressing dissident spee.
e situation continues today even though the January 2014
Constitution, like the 2012 dra shepherded by the Muslim
Brotherhood government of Muhammad Morsi, includes explicit
protection for freedom of the media, forbids prior censorship and
licensing or registration of the print media or journalists (cf. Article
19).12 e main focal point where the promises of free spee meet
the realities of censorship are at the level of key laws regarding
media, specifically Law 430/1955 of 1955, whi authorizes the
Ministry of Culture to censor audio and audiovisual works, prohibit
recording, filming, copying, or adapting audio or audiovisual works,
or—and this is crucial—screening, performing, or broadcasting them
publicly without a permit from the ministry. Other laws, su as the
Minister of Culture Decree 222/1976, the 1980 dra Law on
Protecting Values from Shameful Conduct and Prime Ministerial
Decree 162/1993, have added layers to the complex system through
whi censorship—and indeed, ‘a regime of prior censorship’—
functions and continue to provide the pretext for censorship and/or
detention of artists. And to these we can add the administrative,
political and social meanisms of control through whi religious
forces like al-Azhar, can become involved in censoring art, while
149
professional syndicates whi should support artists in fact act on
behalf of the government against them (in Egypt, Law 35/1978).13 In
addition, religious bodies like al-Azhar that are not legally mandated
to participate in censorship regimes are still routinely sent works of
art for approval or censor.14
Turning to Morocco the variety of experiences across the MENA
comes immediately into view. e 2011 revised Constitution did
incorporate human rights language including greater aention to
protecting free spee. Articles 10, 25 and 28 guarantee freedom of
opinion, thought, expression, and assembly and prohibited “any
form of prior censure.” e right to life, security of person, physical
and moral integrity, protection of privacy, and the presumption of
innocence are also supported. Yet ultimately, the Constitution can be
said to deal with rights and freedoms “in a contradictory way.”15
ese have not, however, been translated into action. As one
Moroccan artist explained,
We are too limited by our mode of expression because there isn’t the right to say what
you want in the media. ere are certain taboos whi one can’t aa… e King,
religion, the government quite simply. It’s not advisable to cite the names of ministers
in your words if you want to be on the radio, and not just in the music, in interviews as
well.16
For example, Article 29 of the press code still empowers the
communications minister to ban the import of publications that
“inflict harm to the Islamic religion, the monarical regime,
[Morocco’s] territorial integrity or the respect due the King or the
public order.” e government has used this provision frequently in
recent years to prohibit issues of foreign publications. Constitutional
proclamations guaranteeing free expression are worth lile until
lawmakers revise the penal code and press code provisions that the
government is using to restrict spee.17
If a primary focus of state censorship in Egypt surrounds
sexuality-related issues in films and music (especially videos), in
Morocco the primary arena of censorship has been the media itself.
150
Independent media sites on the internet are more of a focus of
censorship or aas than in Egypt. Numerous sites have been fined,
bloed or pressured to close, including Moroccan-run sites,
Facebook, Instagram, Pinterest, and other social media sites and
independent media platform like Mamfakine, Lacome.com the
most noticeable recent bloage in 2013 (its Arabic-language editor
was jailed for over a year awaiting trial).18 At the same time, the rise
to power of political forces like the Islamist ‘Party of Justice and
Development’ have coincided not only with an upti in censorship
of political issues but also of so-called moral and religious
sensibilities as well.19
And yet, despite su restrictions, Moroccans continue to express
their dissent in multiple media, from online publications to protests
on the streets, indicating that the regime’s alleged ‘path toward
reforming’ is long and winding.20 What both the case of Egypt and
Morocco demonstrate more generally is that music and other artistic
forms are inseparable from other forms of spee and their
repression. It is also worth noting that all the levels of censorship
that one sees in the MENA are present to various degrees in most
societies, including those of the West.
For its part, Tunisia has today what is no doubt the Arab world’s
—and in many ways one of the world’s—most progressive
constitutions. From the start of the post-Ben Ali era, the transitional
government proclaimed freedom of information and expression
‘foundational principle for the country’ (Freedom House 2015 report
on Tunisia) with significant protections for women’s rights, freedom
of belief, and various types of artistic and political expression. What
made that accomplishment possible was the lengthy and very public
debate over its content as well as the successful consensus of
progressive, liberal and Islamist forces represented by the document.
Specifically, Articles 31 through 33, 27 and 42 explicitly guarantee
‘freedom of opinion, thought, expression, information and
publication’ as well as unrestricted access to information, academic
151
freedom, the right to assembly and to culture (described as “the
freedom of creative expression”), all without the kind of ‘subject to
the law’ caveats that enable other governments to honor their
commitments only in the brea.
Nevertheless, the government has retreated on implementing
crucial laws surrounding issues like access to information, while
anti-terror laws passed in the wake of mass terrorist aas in 2014
and 2015 have threatened constitutional guarantees surrounding
freedom of expression, at least at the political level. At the same
time, the more conservative Ministry of Interior continued to
prosecute and imprison journalists and bloggers for criticizing the
military or government.21More specifically related to artistic
freedom, Tunisian Rapper Weld El 15 was imprisoned for insulting
the police with his song (clearly inspired by Morocco’s El Haqed ‘El
Boulisia Kleb’ (Cops Are Dogs)). And while the main Islamist
movement, Ennahda, has taken a fairly moderate position vis-a-vis
freedom of expression, more conservative Salafi forces have staged
major riots, threatened and aaed artists, and burned down
theaters accused of displaying or performing ‘insulting’ and ‘un-
Islamic art.’22
For mu of the 2000s, Turkey seemed to be on a path towards
unprecedented democratization, including greater freedom of
political expression (its cultural spheres have always been broadly
freer given the secular foundation of the Turkish state), as
guaranteed in Articles 26 through 28 and 33 through 34 of the
Constitution.23 But a series of laws, including Articles 301 and 314 of
the Turkish Penal Code, as well as a ‘draconian’ internet law, reveal
the ‘difference between what is said and what is done’ when it
comes to real freedom of expression and undermining constitutional
guarantees, especially when it comes to press freedoms.24 As of 2015
Turkey has one of the worst records for imprisoning journalists, and
the situation is quily becoming similarly worrying for musical
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artists who are in any way political or making ‘dissident comments,’
particularly surrounding the Kurdish question.
Iran is in a fundamentally worse position when it comes to
freedom of expression since its constitution expressly limits su
freedom by prohibiting anything that is detrimental to the
fundamental principles of Islam or the rights of the public (Articles
24, 175). is includes cultural and artistic/aesthetic production as
well, whose creation, performance and/or distribution is controlled
by the Ministry of Culture (cf. LeVine 2008, . 6). When the (now
former) President Ahmedinejad argues, “Is there art that is more
beautiful, more divine, and more eternal that the art of martyrdom?,”
it is clear that rappers and metalheads are not going to have an easy
time of it in the Islamic Republic.25 Nor will musicians working in
more traditional genres who allegedly allenge religion, as the
virtuoso setarist and singer Mohsen Namjoo discovered when he
was prosecuted, convicted and forced into exile for ridiculing the
r`an in 2009.
Yet even with su sentiments among the leadership, the situation
on the ground is more complicated than the texts of religiously
grounded laws would suggest. Despite official restrictions, millions
of Iranians have full access to the global cultural ecumene through
satellite dishes and access the internet. Indeed, as of the summer of
2015, the government was actually working with some of the
country’s most well known (and previously censored) rap artists to
help raise public support for its nuclear program.26
e popularity of heavy metal and hiphop among Iranian youth
during the last thirty years aests to Iran’s openness to global
culture, while the many accolades garnered by Iran’s locally rooted
film industry point to the ability of artists to allenge official limits
on cultural expression. And yet at any moment, the conservative
judiciary, clerical class and paramilitary units known as the basiji
(who act among other things as morality police, harassing young
people who publicly violate official norms), can harass, arrest and
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prosecute artists and fans (and impose travel bans on the former)
because of what they deem to be ‘un-Islamic’ art.27
It should be clear that any aempt to generalize about struggles
over freedom of cultural and artistic expression in the countries of
the MENA is bound to fail. e specific nature of ea government
and its constitutional and legal systems, the role and power of Islam
and Muslim religious forces in the legal and social structures of the
country, its relationship with the United States and Europe (whether
friend, ally, client or adversary), and the particularities of cultural
production, distribution and consumption, all played a role in
determining the dynamics involved.
In looking at cultural performance in the MENA in the context of
the Arab uprisings, Green Movement, and Gezi Park protests we
must delineate them into two broad categories. First are political
actions and events whi had very strong aesthetic components. e
protests in Tunis, Tahrir Square and many other locations epitomize
this phenomenon; they are ‘theater of immediacy,’ auratic and
transformative cultural (oen, but not necessarily artistic) creation
and performance for an intended audience that is not merely
emergent—that is, in the process of formation—but ‘emurgent’
(emergent + urgent); developing rapidly and in the context of intense
sociopolitical struggle that destabilizes and even reconfigures
previously dominant, congealed structures and networks of power
and identity.28
Second, beyond inherently aestheticized and affective protests,
artists themselves deliberately created extremely political art that
came to play an outsized role in the unfolding protests and uprisings.
Perhaps the most well known artistic symbols of the Arab uprisings
are two musical artists, Tunisian rapper El Général and Egyptian
singer Ramy Essam. But music was not the only artistic form central
to the Arab uprisings. Poets and photographers, playwrights and
graffiti artists, in their home countries and exile, all played a
prominent role. Not only that, the form and content of the art
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produced by Arab activist artists has continuously anged during
the last five years, as have conditions on the ground, the political
situations, and the goals, dreams and expectations of the artists.
e Arab world has seen an explosion of creative energy since the
self-immolation of Muhammad Bouazizi, in su varied areas as
Tunisian rap, Libyan literature, Moroccan experimental theater,
Yemeni protest music, and Egyptian graffiti.29 e artistic production
and the theater of protests are of course intimately related. What
made Tahrir su a powerful space was all the forms of art—music,
graffiti, posters, humor, song, photography, poetry—that occurred
within it.30 All of these forms have historically ‘thrived on conflict’
while at the same time pushed the boundaries of moral, political and
cultural freedom by giving vent to frustrations, especially of youth.
Studying these cultural performances is crucial to understanding the
transformation from traditional to a more progressive, innovative set
of cultural norms.31 e problem that we must explore is to what
extent this release meanism went from having revolutionary
power to erase fear, claim public space (especially streets and
squares) and set off protests and even uprisings to merely offering a
‘festivalisation of dissent,’ as Aomar Boum describes it, containing
and dissipating (or at least redirecting) anger and calls for social
justice to less threatening ends.32
Nigerian Afrobeat pioneer Fela Kuti famously declared that music
would be the weapon of the future. In late 2010 Tunisia it had
become the weapon of the present—not merely the soundtra of the
revolution that caught fire in the ashes of Muhammad Bouazizi, but
a motivating factor in bringing people into the streets and reshaping
their basic political subjectivity—a core process of any revolutionary
ange in a country’s social and political structures.33 Perhaps the
most famous—and certainly first—exemplar of the role of music in
the Arab uprisings is the song “Rais Lebled” (President of the
Country) by the then largely unknown rapper El Général. Arriving
in the Arab world in the mid-1990s, rap music quily established
155
itself as a major force for aesthetic expression and innovation among
Arab youth from Morocco to Iran.34 While most rappers steer clear
of politics (if not social issues) and some—from Morocco to Iran—are
actually supported by their governments, it is the region’s politically
grounded hiphop that most powerfully defines the genre for the
generation that has grown up with it.
With a brooding tempo and hiphop beat and minor key piano
melody, the grim mood of “Rais Lebled” sets up El Général’s at turns
plaintive and excoriating missive to then President Ben Ali that
declares: “Mr. President, you told me to speak without fear/I spoke
here but I knew that my end would be palms [i.e. slaps and beatings]
… How long [must] the Tunisian live in illusions?”35 It is hard to
overstate the power of “Raid Lebled,” not least because su words
could in fact get a person killed, or at least imprisoned and tortured
for a very long time. But in speaking about overcoming fear, El
Général captured the essence of the Arab uprisings: the loss of fear
of a generation.
ere are dozens of revolutionary hiphop songs in the ‘Arab
Spring canon.’ Most every country from Morocco to Bahrain
produced at least one song that helped unite and motivate people,
reflecting their pains and dreams, and bringing them out onto the
streets. Whether Arabian Knightz’s “Rebel” (Egypt), Ibn abit’s
“Ben Ghazi” (Libya), L’7a9ed’s “Klab ad-Dawla” (Dogs of the State),
or the anonymous Syrian song “Bayan raqam wahid” (Statement
Number One), hiphop was truly at the heart of the soundtra to the
protests, demonstrating a courage and forthrightness that began
with the seminal Palestinian-Israeli rap group DAM, whose song
“Min irhabi?” (Who’s the Terrorist?) was one of the most powerful
accusations ever put to music against the Israeli occupation.36
Perhaps the most politically engaged rapper in the Arab world
and broader Middle East today is Morocco’s El Haqed (a.k.a. L7a9ed;
‘the Enraged One’), who represents the ubiquitous power of hiphop
as the world’s most politicized musical form today.37 Mouad
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Belghouat (his legal name) came onto the Moroccan scene in the late
summer of 2011, as a February 20 activist aer the protests had
reaed their apex and were already fading in the wake of passage of
a Constitutional referendum put forward by King Muhammad. His
stage name can be translated as either the enraged, the ‘spiteful’ or
the indignant.
From the start Moroccan rap has been implicitly political, and
became more so in the last decade. L7a9ed came to the authorities
aention by September 2011, when he was first arrested aer an
altercation with a member of the Royalist youth. As with most
rappers, L7a9ed’s prison stint only increased his street credibility,
especially among Morocco’s poor and disenfranised young people,
from whose midst he’d risen in the slum of Oukaa, in the outskirts
of Casablanca. Indeed, as he rose to fame L7a9ed’s depictions of the
worst aracteristics of young Moroccans’ lives earned him the
sobriquet the ‘Gavroe of the Moroccan revolution’—Gavroe was
a minor but important aracter in Victor Hugo’s Les Miserables.38
He has since spent two more stints in jail, but refuses to ba down
from his political stances.
One might imagine the situation would be beer in newly
democratic Tunisia. However, even there rappers are harassed by the
security forces, and one, Weld El 15, actually served time in jail for a
song similarly excoriating police brutality. e situation remains
allenging for rappers in Egypt as well, while in Iran the
government has adopted a more sizophrenic approa towards
hiphop—continuing to harass some artists even as it convinced one
of the country’s most well-known underground rappers to do a
video supporting their nuclear power program.
While hiphop gets most of the aention, the roots of the youth
music scenes in the Arab and larger Muslim worlds lie as mu if
not more in heavy metal and ro. e original musical subcultures-
turned-countercultures in the Arab world are the extreme metal
scenes of the region, whi were already threatening enough to
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laun ‘Satanic metal scares’ from Morocco to Iran during the late
1990s and early 2000s.39 ese foreign-born music scenes were
important because they served as incubators for marginalized youth
to express themselves and create relationships and solidarities. Just
as importantly, they impacted the spread of do-it-yourself skills in
distributing their music and message, particularly via the burgeoning
internet and social media. is would prove crucial for the
revolutions that would later erupt.40
One direct musical heir to the Arab metal scenes is Ramy Essam,
the ‘singer of the Egyptian revolution’ whose song “Irhal” is
considered along with “Rais Lebled” the most important tune in the
revolutionary Arab canon and one of the most influential songs of
this century. Like Mathlouthi, Essam started off as a metalhead and
fan of su groups as Slipknot, Korn and System of a Down, an edge
he clearly brought to the sound of “Irhal.” No artist beer symbolizes
the anging—and in many ways, waning—fortunes of political
music in the Arab world than he does. It is difficult to overstate
Essam’s impact on the protests in Tahrir Square’s uprising. Arriving
with nothing but an old acoustic guitar and a sleeping bag on
January 31, 2011, within twenty-four hours he had absorbed the
words, and as important, the rhythms of the protesters’ ants in
Tahrir, and composed “Irhal!” (Leave!), the song that quily became
the anthem not just of the Egyptian Revolution, but of the Arab
uprisings from Morocco to Bahrain.
Whereas “Rais Lebled” was never performed live during the
Tunisian Revolution by El Général, “Irhal” emerged out of hours of
strumming along to the ants of the protesters in Tahrir Square. By
the time that Mubarak was forced from power Essam had performed
it literally hundreds of times for hundreds of thousands of people
(and as many YouTube views from a grainy video shot of the
audience at one of his first performances of it), ea time gathering
more crowds until its popularity was su that the majority of the
crowd knew the words. While he had become the ‘voice’ of the
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Revolution in the two years aer Mubarak’s ouster—“My job is to
take the essence of what people are feeling and reflect it ba to
them,” he explains (LeVine, interview 2011)—Essam was in fact
increasingly persecuted both under Morsi’s rule and particularly
aer the military coup of 2013. His situation became so precarious
that he could no longer perform, while his music was banned from
the airwaves. In October 2014 he le Egypt for a two year musical
residency in Sweden. He fears for his safety if he is forced to return
home.
However powerful the music and political presence of
revolutionary musical artists like L7a9ed and Essam, without a
constant physical presence in and control over space that power will
diminish over time. L7a9ed and Essam, one in professional exile
inside his country and the other physically removed from his
homeland, can continue to make videos that are accessible at home
and travel abroad spreading the stories of their struggles. But while
su activities keep the revolutionary embers glowing, their inability
to perform locally is symptomatic of these movements’ current
inability to allenge the balance of power on the ground in
Morocco or Egypt.
ere is no denying the roots of hiphop in the poetic form, but
poetry itself was at the heart of the revolutions; a natural
development given the prominent role of poetry in Arab and Islamic
traditions. As the poet Mazen Maarouf points out, “We should not be
surprised that in these revolutions ordinary Arabs are capable of
su poetry. In sools across the Arab world, poetry precedes other
forms of art.”41 Indeed, the Yemeni poet Ibtisam Mutawakkil captures
the essence of poetry’s power in the Arab world (and similarly in
Iran, whi has an equally ri poetic tradition), when he argues,
Yemeni society is still a society audibly. For this reason, the spirited rhythm and phrases
move the people … In the history of the Arab revolutions poets have always been at the
forefront of awareness led the revolutionary action, and this action is still present in
Yemen to the day since the revolutions of 1962 and 1963.42
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Poetry was in fact central to the Arab revolutions from the start. e
most famous slogan of the revolutions, anted in Tunisia, Egypt,
Yemen, Libya, Bahrain, Syria, and beyond, is an adaptation of the
poem “Izza ash-sha`b yowman arada al-haya” (“If the People One
Day Will to Live”), wrien in 1933 by the Tunisian poet Abou el-
Kasem Chebbi (1909–34), whi aer the revolution became
incorporated as the closing lines of Tunisia’s national anthem.43
Moreover, poetry provided the rhythm of the Arab protests, both
visually and aurally. e speed and flow of a mar in Tahrir, down
Bourguiba Boulevard, or around Manama’s Pearl roundabout would
be determined by the poetry being anted. Banners featured poetic
slogans dozens of meters long at times. Songs, whether “Rais Lebled”
or “Irhal” were nothing if not extremely poetic. As the Moroccan
poet Mohammed al-Ash`ari explained of the Arab Spring’s poetry,
“Poets have the capabilities to enable them to escort civilian
movements and educate consciences in the midst of significant
anges in today’s world.” In particular, they help people want life—
perhaps the most important function of any art form, “But even the
poetry of the revolutions and beyond is weak and modest when
compared with what happened in the street or in the fields or the
actions of the rebels,” Egyptian poet Girgis Shukri explains.44
As with hiphop, in Arab revolutionary poetry, Palestine stands
above most other Arab countries, as the unending symbol of all that
has been lost to Arab culture as the result of foreign and internal
imbalances and distortions of power, ideology and identity. One of
the “songs of the revolution” (ughniyat al-thawrah), “Raji’ libladi”
(Returning to my country), is directly influenced by the Palestinian
narrative of return. Mahmoud Darwish’s poetry was particularly
crucial to the broader Arab Spring project—one writer called him
“the conscience of the Arab revolutions,” just as Palestine itself
remained symbolically central.45
Not surprisingly, the historical and political power of Arab(ic)
poetry increases as it is incorporated into other art forms, perhaps
160
none more so than theater. Su is the affective power of theater as it
has been experienced across the region that one of Egypt’s foremost
poets, Girgis Shukri, has declared that “the language of drama and of
theater is mu stronger than that of poetry or wrien texts” alone.46
e Arab/Muslim world has centuries-old theater traditions. Most
countries’ theater scenes became highly ideological in the wake of
the Nasser-era revolutions and coups, but they also developed strong
traditions of worker’s and avant-garde theater. Cairo, for example,
has been home to the International Festival of Experimental eater
since 1988;47 Palestine has been home to companies su as the Jenin
Freedom eater and El Hakawati that have been (and remain) at
the forefront of cultural resistance against Occupation and
oppressive regimes across the region. And countries where one
might not expect a strong theatrical tradition, su as Yemen, in fact
boast a powerful history going ba a century in whi foreign
influences su as Shakespeare and Shaw have blended with
extremely sophisticated and critical poetic traditions among the
tribal heartlands to create one of the region’s best kept artistic
secrets.48 In Morocco, experimental theater influenced by eater of
the Oppressed or less confrontational styles su as “l`khbar fi
masrah” (“the news through theater”) has both encouraged and
diffused potentially explosive social and political tensions.49
Dramatists su as Egypt’s Sondos Shabayek and Laila Soliman or
Tunisian Loi Aour, have used both classical themes and
teniques (su as storytelling) and references to and direct
engagements with the immediate, pre-revolutionary past, to great
affect with local and (increasingly) international audiences.50 At the
same time, some of the most relevant pre-Arab Spring plays, su as
Fadhel Jaibi’s Amnesia-Yahia Yaish (whi dealt with the fall of a
despotic Tunisian minister of state), have received even more
enthusiastic reactions from crowds aer the revolutions, when its
implications could be appreciated more openly.51 e broader
question that remains for theater makers, like other artists across the
161
region, is whether their art can help foster “a radically new mindset
and a new thought until all this is reflected on the culture and art in
general.”52
Red lines continue to exist, even in the most democratic of Arab
countries. Tunisian actors have been arged with ‘public indecency’
and ‘indecent acts,’ and physically aaed by audience members, as
happened to members of the street theater company, Fanni Raghman
Anni (in Tunisian dialect, “My Art In Spite of Myself”) in response
to the perception that actors were wearing too lile clothing during
a performance.
e Arab uprisings might have been televised (as Gil Sco-Heron
predicted they would not be) and disseminated via many other
communications media. But they were even more so drawn—by
cartoonists, caricaturists, everyday people, and particularly graffiti
artists. It was impossible to aend a protest anywhere, from Rabat to
Manama, without being inundated with the artwork of everyone
from small ildren to major artists of the day. In fact, the most far-
reaing and bloody revolution of the region, Syria, was sparked by
the arrest and torture of fieen ildren for painting anti-
government graffiti on the wall of their sool.
Arab graffiti is directly inspired by 1,400 years of Arabic and
r`anic calligraphic traditions. Indeed, in a very profound sense,
r`anic calligraphy and the newest street art are “daughters of the
same parents.”53 But however deeply rooted, graffiti cannot be
appreciated outside of the broader context of cartoons and other
forms of graphic images, whether created by professionals and
published in newspapers or other media, or drawn by ordinary
people and brought to protests. Finally, graffiti is also deeply related
to paintings, videos, sculptures and installations that have been
exhibited in galleries, museums, and revolutionary spaces.
In the revolutionary era, Palestine, Egypt and Bahrain are home to
the most developed, organized and belligerent graffiti movement in
the region.54 Equally important, Yemen, understood mostly in the
162
West as a bastion of feudalism and extremism, quily saw the
emergence of one of the most sophisticated public graffiti scenes in
the region that epitomized the unprecedented and almost entirely
non-violent grass-roots protests in the country. Verbal messages of
the graffiti have been complex and multifarious; from simple
repetition of revolutionary slogans—Dégage!, Irhal!, Yasqut hukma-l
‘askar!—to the ubiquitous turns at humor (“Game Over!” “Doctor,
it’s your turn”—i.e. one-time optometrist Bashar al-Assad will see
himself out of power soon), and references to Facebook, Google and
Twier. Images of all types have “play[ed] a central part in processes
of political struggle” by conveying mediated and mediating political
messages and ideologies.55 More than just art, su visual messages
were the “war paint” of the revolutions and a weapon in the hands
of civil resistance against authoritarian regimes.56 Aesthetic quality
alone was not the most important reason for the impact of visual
arts in the uprisings and revolutions. Even the simplest drawings—
like those of Daraa’s sool kids—can spark a civil war.
Yet it is also clear that graffiti remains the signal visual icon of the
Arab uprisings (more so than in Iran or Turkey, for example),
distinguished both by its power as well as its vulnerability and
ephemerality. Its ability to move so many people is precisely why
governments across the region—and indeed, globally—consider it
vandalism and sabotage.57 As the Egyptian artist Ganzeer explains,
graffiti has the power to “plant a flag” in the public sphere in a
manner that directly undermines the state’s sense of public security.
It does so precisely because its presence (especially when prolonged)
clearly marks a location’s transformation into a revolutionary space,
or at least one outside of real government control. Even more, as the
artist Mohsen Al-Ateeqi points out, graffiti helps “encircle the
hegemony” of regimes that have spent decades ‘containing’ their
societies by its offering of highly visible counter-hegemonic
meanisms for producing public opinion—beer, of publicness and
being public. Graffiti marks space, at least momentarily, as a
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revolutionary place, enabling the public to encounter messages and
motivations that have been censored in more ‘legitimate’ media and
in so doing becomes “in itself a form of public power to resist the
ruling power.”58
Whatever the historical importance of wrien graffiti, images
have always played crucial components of Arab graffiti. In the
uprisings era, su imagery oen has portrayed or represented
people or events occurring on the ground. is has included
everything from murals featuring the faces of martyred protesters to,
in one well-known case, a stencil of a nude self-portrait by the
young Egyptian photographer Aliaa Magdy Elmahdy—an elaborate
defense of her (in)famous photo that contextualizing it vis-a-vis
rampant assaults on women by regime forces. Also frequent are
more elaborate murals of revolutionary heroes, hated regime figures,
or various revolutionary scenes. ese were composed in a variety of
styles, from stenciled images of ‘anarist pharaohs’ (the image a
pharaoh in the guise of Guy Fawkes with an iconic headdress) to
mixed-media transdisciplinary works by artists su as Hanaa El
Dagham and highly stylized ‘neo-pharaonic’ tableaus—epitomized
by the work of the Luxor-based fine artist Alaa Awad, that bring the
far past and the immediate present into intense dialog.59 In Tunisia
and Egypt cartoon figures also became—and remain—central
symbols of political graffiti, as aracters like Nadia Khiari’s Willis
the Cat in Tunis, and Sad Panda in Cairo have rendered some of the
most powerful—and in Sad Panda’s case, almost always mute—
judgments on the oppressiveness and even absurdity of the ancient
and post-revolutionary regimes.60
If graffiti is the most celebrated form of the revolutionary era’s
visual art, it was by no means the only one or isolated from other
forms. Both visually and in terms of satirical wit, cartoons have
played a crucial role, not just in the Arab uprisings, but for a century
of Arab journalism and media. Arab(ic) graffiti would be as
impossible to imagine without the history and presence of Arab
164
cartoons as it would be without Arabic calligraphy. Indeed, the
importance of cartoons or cartoon-inspired artwork, su as Willis
the Cat and Sad Panda, in the graffiti of the uprisings points to the
difficulty of fixing boundaries between these media.
Cartoons in the Arab world, as they are elsewhere, are ‘vivid
primary sources’ for understanding larger events and the broader
public mood.61 As cartoons have migrated from newspapers and
books to social media and the internet their subjects have
increasingly focused on regional and international subjects, while
leaving aside domestic issues that could lead to censorship or worse.
Exceptions to this rule include Palestine and Lebanon, both of whi
retained relatively more freedom of expression for artists compared
with other Arab countries (although Palestinians have been jailed
and even killed by Israel for their art).62 But while the majority of
cartoonists were staying clear of local politics in the years leading up
to 2010, some (Egyptian cartoonist Andeel, for example) have been
consistently political since the early 2000s, aaing Mubarak then
and Sisi now with the same la of concern for the consequences.63
Lastly, it is Egypt that has been home to the groups that have
most boldly and effectively blended visual art and activism. Two
media collectives in particular have played an important role in this
process since 2011, the Mosireen collective and Kazeboon (liars).
Together they epitomize how the internet has influenced art’s
impact. Mosireen (a combination of the words ‘Egypt’ and
‘determined’ in Arabic) is a Cairo-based media collective created
during the 18 days of the January 25 revolution. Its goal has been to
circulate (via the internet or public showings) citizen-produced art—
in particular short films based on documentary footage of events
that contradict government claims about who was responsible for
acts of violence against citizens. When effective these films
constitute politically inspired art possessing the power to ‘wrong-
foot censorship and empower the voice of a street-level perspective.’
Mosireen’s focus has been auned particularly to ariving the
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visual record of the revolution and showing revolutionary inspired
films to the public, oen on the street in order to rea the most
people.
e Kazeboon, or ‘liars’ campaign, was founded by some of the
same people as Mosireen in December 2011 when military police
aaed protesters at a sit-in at the Cabinet headquarters. e name
pertains to the penant for the military (at that time, SCAF, the
Supreme Council of the Armed Forces) to lie when accused of using
violence against protesters. is time, protesters had recorded video
of the aa, whi activists used to produce a video, uploaded onto
YouTube, that directly allenged the lie. So successful was this
campaign, and so ubiquitous was the violence and the lies about it
by the military and then the Morsi government, that the group’s
modus operandi became using video to confront the lies of the
regime (the Muslim Brotherhood would adopt a similar strategy
during the Raba al-`Adawiyya sit-in, but with far less success). Like
Mosireen, Kazeboon would sometimes hold events in public at
revolutionary-friendly locations (su as the Sawi Culture Wheel in
Zamalek, whi had long sponsored edgy and even subversive
cultural events and political meetings). But its primary means of
communication has been the internet, whi has made it mu
harder for the government to censor.
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Conclusion: art and/as religion in the Arab
Spring
Art, like religion, encourages liminal, transformative experiences.
And like religion, that makes artistic production both useful and
dangerous to those in power (including those in religious power,
who can simultaneously use art for their own ends while
condemning some artists for transgressing religious norms). It is for
this reason that this apter has analyzed the importance of cultural
rights as a way to protect art’s potentially powerful role. And it is
why art has been a particularly key site for the impulses that both
led to the Arab uprisings and why governments, in repressing those
uprisings, have also sought to repress art that identified with that
transformative movement. In the wake of the eruption of the
protests and uprisings, and in the midst of seeming transformations
towards democracy, Egyptian artists have been sued, Moroccan and
even Tunisian musicians, graffiti artists, and actors have faced
harassment and arrest, for ‘moral’ as well as political ‘crimes.’ In
Syria throats have been slit, tongues cut out and hands cut off
(depending on the offending artist’s specific mode of work). Perhaps
Tunisian artist Jalila Baccar best captured the dynamic at work when
she explained a year aer Ben Ali’s ouster: “During Bourguiba and
Ben Ali’s regimes, political content was censored from any artworks.
During the current regime, political content is still forbidden, only
under the guise of ethics and religion.”
Ultimately, while it is not difficult to spot ‘religious’ versus
‘secular’ art in the post-uprisings Arab world, the main distinction
between various forms of artistic production is not centered on
religion, ethics or morality. It is centered around the contentious
question of whether the region and individual countries are still
167
living in revolutionary or normal time, whether artists should and
can continue to motivate citizens into the streets to fight for a
wholesale ange in their societies, or should either support the
status quo or ignore politics all together. It is undeniable that the
Arab uprisings and revolutions of the last five years have produced
some of the most politically as well as aesthetically powerful and
innovative art the world has seen in generations. e question that
remains is whether the aura of revolution can continue to inspire
artists and ordinary people to continue the struggle for ‘bread,
freedom, and social justice’ that half a decade ago helped laun the
Arab Spring, and what role su struggles will play in the broader
and longer term struggle for human rights across the region.
168
Notes
1 Hafid Gafaiti, “Between God and the President: Literature and Censorship in North
Africa,” Diacritics vol. 27, no. 2 (1997): 59–84.
2 Farida Shaheed, UNO-Report on Culture Rights (Online: United Nations, 2013).
3 For the purposes of this apter, I define censorship as a regulatory and legal process of
regulating artistic production in order to ensure that art of all types adheres to
applicable legislation, statutory regulations, the political imperatives and ideological
narrative of the state and/or ostensibly shared community mores.
4 Jonas Oerbe, “Baling over the public sphere: Islamic reactions to the music of
today,” Contemporary Islam vol. 2, no. 3 (November 1, 2008): 211–228.
5 Mark LeVine, Why They Don’t Hate Us: Lifting the Veil on the Axis of Evil, Oxford, UK:
Oneworld Publications, 2005.
6 LeVine, Why They Don’t Hate Us, s. 1, 3, 5; OHCHR, Universal Declaration of Human
Rights–In Six Cross-Cutting Themes, (n.p.: Office of the High Commissioner for Human
Rights, 2015); Janusz Symonides, “Cultural Rights: a Neglected Category of Human
Rights,” International Social Science Journal vol. 50, no. 158 (December 1, 1998): 559–
572; Elizabeth Willmo-Harrop, “e Universal Declaration’s Bias Towards Western
Democracies,” Liberty and Humanity 2003.
7 Henrik Urdal, “A Clash of Generations? Youth Bulges and Political Violence,”
International Studies Quarterly vol. 50, no. 3 (September 2006): 607–629; Middle East
Youth (In Brief: Brookings Institute, n.d.); M. Chloe Mulderig, “An Uncertain Future:
Youth Frustration and the Arab Spring,” The Pardee Papers 2013; NATO Parliamentary,
The Implications of the Youth Bulge in Middle East and North Africa Populations,
(NATO, 2011).
8 Mark LeVine, Heavy Metal Islam: Rock, Resistance and the Struggle for the Soul of Islam
(New York: Random House, 2008).
169
9 Muhammad Deeb, Wasilati Fi Ihtijaj Hia Al-Aghani Wa-L-Sha`r’ (My Means of Protest
Are Music and Poetry), 2011; Tejumola Olaniyan, Arrest the Music!: Fela and His Rebel
Art and Politics (African Expressive Cultures), 1st ed. (United States: Indiana University
Press, 2004), 2–3.
10 Ma Duffy, “Arab Media Regulations: Identifying Restraints on Freedom of the Press in
the Laws of Six Arabian Peninsula Countries,” Berkeley Journal of Middle Eastern and
Islamic Law vol. 6, no. 2 (2014): 1–31.
11 ANHRI, Articles That Restrict the Freedom of Expression in the Egyptian Laws, (e
Arabic Network for Human Rights Information, 2012); CIHRS, Freedom of Expression in
Egypt and Tunisia, (Cairo Institute for Human Rights Studies, n.d.).
12 And still to this day sometimes censorship can be vague or unexplained to artists, su
as the Egyptian singer Ali El-Haggar ready to issue a new album in the Gulf during the
next few days, aer it refused to permit it negotiable Egyptian censorship in Egypt. e
album features 14 songs but does not address political affairs.
13 United Nations. UN Report on the Right to Artistic Expression and Creation, (United
Nations, 2013); Omar El Adl, “Musicians Syndicate Cradown Disproportionately
Affects Underground Music,” Daily News Egypt, 2012; Moroccan musician and journalist
Reda Allali, interviewed by author Mar 2014; Ahmed Ezzaq, Sally al-Haqq, and
Hossam Fazulla, “Censors of Creativity,” Association for Freedom of Thought and
Expression 2014,: 1–20; Basseem Sabry, “Egypt Sends Movie Ba to Censorship Board
for Review,” Al Monitor, 2014.
14 In particular, advocating drug use or sex, insulting Abrahamic religions, the positive
depictions of crime, improper depiction of funerals, or any depiction or use of the
Prophet’s voice, are prohibited. It also prohibits any art that allegedly insults the
president or armed forces or other state institutions, incites to the overthrow of the
Egyptian government or promotes sools of thought that seek to ange basic
principles of the constitution or the social order by force or terrorism.
15 In Article 28, for example, immediately aer stipulating the guarantee of freedom of the
press, there is a caveat that stipulates su freedom is circumscribed by “the sole limits
expressly provided by the law” Samia Errazzouki, “Spin Cycle: Morocco’s Forgoen
Reform Movement,” Sada Carnegie Endowment, 2012.
170
16 Pascal de Gend, “Le Rap Au Maroc, Malgré La Censure,” La Libre, 2012.
17 “Morocco: Weeklies Censored for Depicting God, the Prophet Muhammad,” Human
Rights Watch, 2010.
18 “Au Maroc, La Censure Est Royale,” Liberation, 2009. Rayna St, “Morocco Censors the
Web: Collateral Damage Allowed,” Global Voices Online, 2013; “Morocco: Pioneer of
Independent Press Silenced amid Censorship Worries,” Los Angeles Times, 2010.
19 Karim Boukhari, “Courage, on Censure!,” Telquel, 2012.
20 “Freedom of the Press,” Freedom House, 2012; “Hiwar Ma`a Al-Fanan Ma`a Rafa`il Al-
Qantara: Al-Mashhad Al-Musiqi Fi-L-Qahira Bayna Al-Raqaba Wa-L-Intilaq
(‘Conversations with Artists by Rafael Al-Qantara: e Music Scene in Cairo between
Censorship and Taking Off’),” al-Qantara, 2007.
21 “Tunisia: Freedom of Expression Must Be Protected in the Fight against Terrorism,”
Article 19, 2014; “Blasphemy, Freedom of Expression, and Tunisia’s Transition to
Democracy,” Human Rights First, 2015.
22 Dorra Medgdie Meziou, “Tunisie–Retour de Vacances Pour Les Salafistes,”
Businessnews.com, 2012; Tarek Amara and Lin Noueihed, “Tunisian Salafi Islamists Riot
over ‘Insulting’ Art,” Reuters, 2012.
23 “Freedom of the Press and Expression in Turkey,” Center for American Progress, 2013;
Suzy Hansen, “e Strongman,” The New Republic, 2012.
24 “Turkey: e Disconnect between What Is Said and What Is Done,” Freemuse, 2015;
“Music Video Under Criminal Investigation,” Freemuse, 2015; Raziye Akboc, “Turkey’s
Cradown on Freedom of Spee Intensifies,” The Telegraph, 2015.
25 “P24 Joins ARTICLE 19, CPJ, English PEN, Freedom House and PEN International in
Submiing Universal Periodic Review of Turkey to the United Nations,” Platform 24,
2014; “Freedom of the Press—Turkey,” Freedom House, 2013.; “Journalists Concerned
about Freedom of Expression in Turkey,” Today’s Zaman, 2014; Riard Horowitz, “A
Detailed Analysis of Iran’s Constitution,” World Policy Blog, 2010.
26 Hanif Kashani, “Iranian Rapper Drops Bomb with pro-Nuke Video,” Al Monitor, 2015.
27 “Violations of Artistic Freedom of Expression in 2014,” Arts Freedom, 2015.
171
28 Mark Levine and Bryan Reynolds, “eater of Immediacy: Performance Activism and
Art in the Arab Uprisings,” in Islam and Popular Culture, ed. Karin van Nieuwekerk,
Mark Levine, and Martin Stokes (Austin, TX: University of Texas Press, 2016).
29 Kamran Rosen, “5 Incredible Art Movements at Exploded Aer the Arab Spring,”
World Mic, 2013.
30 Diana al-Rifai, “Anatomy of a Revolution through Art,” alJazeera, 2015; Cathrin Saer,
“Syrian Refugees: Making Sense of War through Art,” Der Spiegel, 2013.
31 Hawas Mahmoud, “Al-Rabi`a Al-Arabiya Wa Al-aqafa Al-Taqlidiya (e Arab Spring
and Traditional Culture),” Minhbar al-Huriya, 2012.
32 Kamran Rosen, “5 Incredible Art Movements at Exploded Aer the Arab Spring,”
World Mic, 2013.
33 Mark Levine, “eorizing Revolutionary Practice: Agendas for Resear on the Arab
Uprisings,” Middle East Critique 22, no. 3 (September 2, 2013): 191–212.
34 Mark LeVine, Heavy Metal Islam: Rock, Resistance, and the Struggle for the Soul of Islam
(New York: ree Rivers Press (CA), 2008), Chap. 1.
35 “El Général–Rais Lebled,” Revolutionary Arab Rap: The Index, August 30, 2011.
36 “Babylon and Beyond,” Los Angeles Times Blog, 2011; “La Mémoire Créative de La
Révolution Syrienne,” Creative Memory, creativememory.org.
37 e 7 and 9 in L7a9ed are Arabic at aracters representing the leers “ḥā” (ح) and
“qaf” (ق).
38 Solidarité Maroc, “Un Pouvoir Marocain Inquiet Mais i Ne Lâe Rien,” Solid Mar,
2012.
39 Cf. LeVine, Heavy Metal Islam.
40 LeVine, Heavy Metal Islam; interviews with Tunisian and Egyptian revolutionary
leaders, February 2011–June 2012, Tunis and Cairo.
41 Mazen Maarouf, “e Poetry of Revolution,” alJazeera, 2012.
42 Reem Najami, “Ma Huwwa Dawr Ash-Shi`r Fi--awrat Al-`Arabiyya? (What Is the
Role of Poetry in the Arab Revolutions?),” Qantara, 2012.
172
43 Cf. John Lundberg, “e Poetry of the Revolution,” Huffington Post, 2011.
44 Reem Najami, “Ma Huwwa Dawr Ash-Shi`r Fi--awrat Al-`Arabiyya? (What Is the
Role of Poetry in the Arab Revolutions?),” Qantara, 2012.
45 Amr Sa`d Eddin, “Shi`r Mahmoud Darwish Fi Wajdan Ath-awrat Al-`Arabiyya (e
Poetry of Mahmoud Darwish in the Conscience of the Arab Revolutions),” Majalat al-
dirasat al-falastiniyya 91 (2012): 52–68; Reem Abou-El-Fadl, “e Road to Jerusalem
through Tahrir Square: Anti-Zionism and Palestine in the 2011 Egyptian Revolution,”
Journal of Palestine Studies vol. 41 (2012): 6–26.
46 Reem Najami, “Ma Huwwa Dawr Ash-Shi`r Fi--awrat Al-`Arabiyya? (What Is the
Role of Poetry in the Arab Revolutions?),” Qantara, 2012.
47 “e Honor of the 18th of e Cairo International Festival for Experimental eater,”
Egypt Ministry of Culture, 2006. Online.
48 Sa`id Aulaqi, Aaman Min Al-Masrah Fi Al-Yaman (Seventy Years of Theatre in Yemen)
(Aden: Warizat ath-thaqafa wa-l siyaha, 1983); Katherine Hénnessey, “e Ri History
of eater in Yemen,” La voix du Yémen, 2013.
49 Kamran Rosen, “5 Incredible Art Movements at Exploded Aer the Arab Spring,”
World Mic, 2013.
50 Cleo Jay, “Staging the Transition in North Africa: eatre As a Tool of Empowerment,”
Ibraaz 004 (2012).
51 Ibid.
52 Moncef Karimi, “al-Mahrajan ad-dawli lil-masrah an-nisa`i” (e International Festival
of Women’s eater), undated article at lemaghreb.tn. Available at
www.startimes.com/f.aspx?t=35144621, accessed July 10, 2015.
53 Dave Stelfox, “Arabic Graffiti: Dances with Walls,” The National, July 15, 2011, available
at www.thenational.ae/news/world/middle-east/arabic-graffiti-dances-with-walls,
accessed December 20, 2015.
54 Charloe Sriwer, “Graffiti Arts and the Arab Spring,” in Routledge Handbook of the
Arab Spring, ed. Larbi Sadiki (London: Routledge, 2014), 376–391; Judran 14 Fibriar:
Ghrafiti Thawrat Al-Bahrain (The Walls of 14 February: Revolutionary Graffiti in
Bahrain) (Dhaka: Awal Centre, 2013).
173
55 Lina Khatib, Image Politics in the Middle East: The Role of the Visual in Political
Struggle, London: IB Tauris, 2012.
56 Waleed Rashed, “Egypt’s Murals Are More an Just Art, ey Are a Form of
Revolution,” Smithsonian Magazine, May 2013. Available at
www.smithsonianmag.com/arts-culture/egypts-murals-are-more-than-just-art-they-are-
a-form-of-revolution-36377865/#DvuzGHgjTZ5455bv.99, accessed July 10, 2015; amer
Mekki, “Fann graffiti fi Tunis” (Graffiti Art in Tunis), Qantara.de, September 2, 2012.
Available at hps://ar.qantara.de/content/fnw-ljrfyty-fy-twns-ljrfyty-fy-twnsslh-fy-yd-
lmqwm-lmdny, accessed July 10, 2015.
57 Noor Ahmed Said, “al-Graffiti al-`Arabi” (Arab Graffiti), Watny News, January 5, 2015.
Available at hp://watny-news.com/new_top/12759, accessed August 2, 2015.
58 Nicola Tama, “Ar-rassam `ala-l-judran: risa`il ash-shabab bi-lubnan” (Drawings on
Walls: Messages of the Youth in Lebanon), alJazeera, May 17, 2012. Available at
www.aljazeera.net/news/cultureandart/2012/5/17/-الرسم-على-الجدران-رسائل-الشباب
.accessed July 29, 2015 ,بلبنان
59 Sherif Boraie, ed., Wall Talk: Graffiti of the Egyptian Revolution, Cairo: Zeituna Press,
2012; Mia Gröndahl, Revolution Graffiti: Street Art of the New Egypt, Cairo: AUC Press,
2013.
60 Fatma Ibrahim and oraia Abou Bakr, “e Melanoly of Sad Panda,” Daily New
Egypt, 2013.
61 Gisele El Khoury, “Understanding Politics in the Arab World through Naji al-Ali’s
Cartoons,” Muah.org, October 16, 2003. Available at hp://muah.org/understanding-
politics-in-the-arab-world-through-naji-al-alis-cartoons/#.VcEZ42CiKBI, accessed
August 1, 2015.
62 Andreas Qassim, Arab Political Cartoons: The 2006 Lebanon War, MA esis presented
at Lund University, 2007. Available at
hp://andreasqassim.com/download/MA_thesis.pdf, accessed July 25, 2015.
63 Barney ompson, “Why Cartoons and Comics are Flourishing in the Middle East,”
Financial Times, July 25, 2015. Available at www..com/cms/s/0/26a80334-31fa-11e5-
91ac-a5e17d9b4cff.html, accessed August 2, 2015.
174
Selected Bibliography
Boraie, Sherif, ed., Wall Talk: Graffiti of the Egyptian Revolution,
Cairo: Zeituna Press, 2012.
El Khoury, Gisele. “Understanding Politics in the Arab World
through Naji al-Ali’s Cartoons,” in Muftah.org, October 16, 2003.
Available at hp://muah.org/understanding-politics-in-the-
arab-world-through-naji-al-alis-cartoons/#.VcEZ42CiKBI,
accessed August 1, 2015.
Gröndahl, Mia. Revolution Graffiti: Street Art of the New Egypt,
Cairo: AUC Press, 2013.
Khatib, Lina. Image Politics in the Middle East: The Role of the Visual
in Political Struggle, London: IB Tauris, 2012.
Mekki, amer. “Fann graffiti fi Tunis” (Graffiti Art in Tunis), in
Qantara.de, September 2, 2012. Available at
hps://ar.qantara.de/content/fnw-ljrfyty-fy-twns-ljrfyty-fy-
twnsslh-fy-yd-lmqwm-lmdny, accessed July 10, 2015.
Nippard, Cinnamon. “al-Ghrafiti fi-l-`alam al-`arabi” (Graffiti in the
Arab World), in Qantara.de, June 17, 2011. Available at
hps://ar.qantara.de/content/lgrfyty-fy-llm-lrby-lgrfyty-lrby-
khtwt-rby-bhbr-lmtlb-lsysy, accessed June 30, 2015.
Rashed, Waleed. “Egypt’s Murals Are More an Just Art, ey Are
a Form of Revolution,” in Smithsonian Magazine, May 2013.
Available at www.smithsonianmag.com/arts-culture/egypts-
murals-are-more-than-just-art-they-are-a-form-of-revolution-
36377865/#DvuzGHgjTZ5455bv.99, accessed July 10, 2015.
Said, Noor Ahmed. “al-Graffiti al-`Arabi” (Arab Graffiti), Watny
News, January 5, 2015. Available at hp://watny-
news.com/new_top/12759, accessed August 2, 2015.
175
Tama, Nicola. “Ar-rassam `ala-l-judran: risa`il ash-shabab bi-
lubnan” (Drawings on Walls: Messages of the Youth in Lebanon),
alJazeera, May 17, 2012. Available at
www.aljazeera.net/news/cultureandart/2012/5/17/-الرسم-على .accessed July 29, 2015 ,الجدران-رسائل-الشباب-بلبنان
ompson, Barney. “Why Cartoons and Comics are Flourishing in
the Middle East” in Financial Times, July 25, 2015. Available at
www..com/cms/s/0/26a80334-31fa-11e5-91ac-a5e17d9b4cff.html,
accessed August 2, 2015.
176
Section III
A political framework: intersecting
human rights and governance crises
in the Middle East and North Africa
177
5
Genocide in the contemporary
Middle East
A historical and comparative regional
perspective
Martin Shaw
178
Introduction
e targeted atrocities of the Islamic State of Iraq and the Levant
aer its emergence in 20141 drew widespread accusations of
genocide. Adama Dieng, Special Advisor of the United Nations
Secretary-General on the Prevention of Genocide, and Jennifer
Welsh, Special Advisor on the Responsibility to Protect, issued a
statement on the situation in Iraq in whi they pointed to a ‘risk of
genocide.’2 e same month an ‘Open Leer from Concerned
Genocide Solars Regarding the Situation in Syria and Iraq’ also
warned of genocide commied by Islamic State and the Al-Nusra
Front.3 Although both statements apparently concerned the
situations in Iraq and Syria generally, accusations of genocide were
directed only at Islamists. However, in Iraq the army and Shi`ite
militia were also accused of grave atrocities against particular
groups of civilians, and in Syria the Assad regime was then
responsible for far more targeted killings of civilians. Yet the
advisors’ and solars’ reminders to states of the ‘responsibility to
protect’ populations from Islamic State, including in the laer case
an explicit call for ‘military force’, by implication endorsed the move
towards U.S.-led bombing in conjunction with the Iranian-baed
ground counter-offensives of the Iraqi and Syrian governments.
ese offensives predictably entailed more atrocities on their parts,
but with Islamists labelled the genocidal actors, scrutiny of others’
acts within the scope of genocide was bloed.
is selectivity, both in applying the term ‘genocide’ and in
demanding intervention to protect civilians, illustrates the difficulties
of the political uses of ‘genocide’ whi critics have noted in other
contexts.4 We might be tempted to conclude that ‘genocide’ is an
impossibly contested concept whi it would be beer to replace.5
179
Yet there is a considerable literature,6 building on Raphael Lemkin’s
original work (1944) as well as the United Nations’ Convention
(1948),7 whi has developed the idea as a coherent sociological
concept whi can be applied impartially across cases. Since violence
targeted to destroy particular population groups—the core of the
genocide idea in most definitions—has been a feature of both
historical and contemporary conflict in the Middle East, it is
appropriate to ask how far the idea can illuminate the extensive
violations of human rights whi have recurred in the region over
the last century and what kind of analytical explanation can be
proposed for the paerns of genocide whi we can identify.
ese are the questions of this apter. e author is a
theoretically-oriented historical sociologist and comparative solar
of genocide, rather than a specialist in the Middle East. I aim, using
secondary literature, first to examine how analyses of genocide have
been and could be made concerning Middle Eastern situations, and
second to consider the Middle Eastern paerns so identified in a
comparative perspective on genocide in world-regions during the
twentieth and early twenty-first centuries. I propose this analysis as
a preliminary exploration of the scope of genocide in the Middle
East and the extent to whi genocide theory (developed principally
in relation to other world-regions) can help us to explain issues in
this region.
180
e scope of the genocide concept
Since the genocide idea is theoretically as well as politically
contested, I begin with a brief exploration of its scope. e
mainstream of thinking about genocide has never restricted this to
the physical extermination of whole ethnic or national groups, as it
is oen popularly understood. When Lemkin invented the word,8 he
defined its modalities in terms of group ‘destruction,’ understood as
the crippling of culture, ways of life and social relations as well as
physical and biological harm. e core of his idea was maintained, if
more narrowly, in the U.N. definition whi listed five types of
genocidal act (not just killing),9 and has been upheld by later
academic definers, even if some have narrowed the phenomenon to
mass murder. However, the U.N. draers deliberately excluded
specific mention of the prime means through whi groups are
destroyed, the forcible removal of populations, whi has come to be
known by the euphemism ‘ethnic cleansing.’10
e U.N. expanded the list of group types, the destruction of
whi was considered genocide, to include racial and religious as
well as ethnic and national groups. However, solars have widely
argued that the destruction of other types, su as ‘political
groups’—excluded from the Convention for political reasons—and
also class and gender groups, should also be included. Moreover they
have pointed out that group types are not stable; that the content of
‘group’ destruction is similar regardless of how groups are defined;
that what counts is the oen arbitrary subjective definition of the
perpetrators;11 and that what the targets of genocide have in
common objectively is that they are predominantly civilian
populations, not armed actors.12
181
e U.N. definition also introduced the idea that action could
constitute genocide whether a group was targeted ‘in whole or in
part.’ is idea was amplified by Leo Kuper,13 who introduced the
idea of localized ‘genocidal massacres,’ an approa whi can be
generalized to consider other forms of ‘genocidal violence’ su as
expulsions and mass rape.14 While some definitions consider
genocide only in terms of the action of the perpetrators, so that their
targets are assumed to be pure (passive) victims, others emphasize
the possibilities of resistance, the involvement of third parties and
the interactive, conflictual nature of the phenomenon. Hence, in this
paper I will define genocide as ‘a form of violent social conflict or
war between armed power organizations that aim to destroy civilian
social groups, and those groups and other actors who resist this
destruction,’ and genocidal action as ‘action in whi armed power
organizations treat civilian social groups as enemies and aim to
destroy their real or putative social power by means of killing,
violence and coercion against individuals whom they regard as
members of the groups.’15
Sco Straus argues that there is a consensus in some recent work,
resting on a narrow definition whi models genocide in general on
the exceptional physical extermination of episodes like the Holocaust
and Rwanda, that genocide is a ‘rare’ phenomenon.16 However, this
is rather as though war was equated with its maximum cases, the
world wars, and therefore regarded as rare, excluding most lesser
wars from the scope of the phenomenon. e aims of destroying
societies and groups are mu more common than maximal cases
like the Holocaust suggest, and so it makes sense to analyze genocide
as a more extensive phenomenon. A broad concept recognizes
variation in the methods and targets of genocide, and leads to
recognizing genocide as a more widespread phenomenon than if we
define it narrowly as the physical extermination of whole groups. I
aim to show that this approa enables us to illuminate the paerns
182
of targeted anti-civilian violence in world-regions like the Middle
East.
183
A historical and international/regional
approa
Genocide is widely regarded as a ‘domestic’ phenomenon, in whi
states, particularly those controlled by totalitarian regimes, target
population groups within their territories. However, few genocides
fit this model, and cases typically occur through international
processes like colonization, war and occupation, whether totalitarian
or other types of regime are involved. Several solars have
theorized this aspect: Mark Levene argues that the ‘international
system’ generates genocide, Magnus Midlarsky that ‘international
context’ is crucial, and Donald Bloxham that regional paerns of
international conflict generated paerns of genocide in Europe in the
first half of the twentieth century.17
In recent work, I have generalized the laer case to examine the
role of regional paerns more generally in the ‘international
relations of genocide.’ I argue that different kinds of regional
paerns have developed: post-Cold War genocide in the African
Great Lakes region, for example, differs radically from genocide in
East Asia in the period of the Cold War.18 Both specific regional
social/political relations and anging global structures of
international power impact on paerns of genocide. ‘Regions’ are
not, moreover, given structures within the international system, but
are constructed and reconstructed in anging international politics,
including practices of genocide. For example, Timothy Snyder
identifies an eastern European region whi he calls ‘the bloodlands,’
between Nazi Germany and Stalinist Russia, as the crucible of
genocide in the Second World War.19 Yet this is not ‘Eastern Europe’
as it was known during the Cold War, nor the ‘eastern’ Europe,
184
within and between the European Union and Russia, whi we
know today.
e Middle East exemplifies this dynamic aracter of
regionalism. A century ago, when the Oomans still held sway over
most of the area and oil was not yet a central economic reality, the
region as we understand it did not exist. e decay of the old empire,
the arrival of European powers and new economic dynamics,
creating opportunities for state-building and the emergence of
nationalism, created new regional realities. However, as elsewhere,
the Middle East ‘region’ has indeterminate boundaries, whi shi
in our imaginations as political realities and connections with
neighboring ‘regions’ ange.
185
e regional history of genocide
One of the seminal modern genocides, the destruction of Armenian
society in 1915, occurred in this ‘region,’ not only in eastern Anatolia
where most of the estimated million victims lived but also in the
deserts of modern Syria and Iraq where many were taken to die.
ere is now an extensive literature on this case.20 While mu treats
it as an internal maer of the Ooman Empire, it is also understood
in a larger global and regional context. It is widely anowledged
that First World War rivalries, especially between the Ooman and
Tsarist Empires, were catalysts. However, Bloxham analyzes the
Armenian genocide as part of a regional paern conditioned by the
larger system of imperial rivalries—a ‘great game of genocide.’21 e
regional context is of course the decline of the Ooman Empire and
the rise of what he calls ‘subject Christian nationalisms,’ primarily in
the Empire’s European provinces, accompanied by systematic great-
power involvement, whi stimulated Muslim flight into the Turkish
heartland and the nationalism of the Turkish core. He notes that ‘the
quintessentially Western ideology of nationalism was the import
that drove the genocide.’22
Bloxham’s account stands out in depicting genocide as a product
of interactions, not only between empires, between Christian and
Turkish nationalisms, and between Christian and Muslim migrants
and refugees, but also between multi-authored episodes of violence.
e Armenian genocide was not only accompanied by genocides of
other Christians, particularly Assyrians and Greeks, in the later
stages of the empire, as Hannibal Travis describes.23 It was, Bloxham
suggests, the outcome of extensive conflicts within both the Ooman
and Russian empires in the late nineteenth and early twentieth
centuries, involving forced population movements of Muslims as
186
well as Christians, provoked by the violence of insurgent nationalists
as well as imperial authorities. It was followed, not only by the
establishment of a Turkish nation-state whi consolidated the
outcomes of Ooman genocide (and still denies it a century later)
but also by episodes like the Greco-Turkish ‘war of extermination’ of
1921–2 in whi, Bloxham contends, ‘both sides far surpassed’ their
earlier atrocities.24
e Armenian genocide was not, therefore, a stand-alone major
genocide, but the nadir of extensive genocidal processes, in contexts
of both local and world wars, whi destroyed many local
communities of different ethnicities and religions. Bloxham sees
these as part of a ‘European history of violence,’ whi continued far
beyond the denouement of the Balkan wars in the early 1920s, and
culminated in Stalinism, Nazism and the ‘final solution.’25 Its major
sites were not only in Snyder’s ‘bloodlands’ of north-eastern Europe,
but once more in the Balkans.
is literature gives mu less aention to today’s ‘Middle East,’
the Arab world and North Africa, although clearly the conflicts of
the late Ooman period ramified into these zones, and not only in
the siting of Armenian murder. e national claims of the empire’s
Christian nationalities were eoed by emergent claims su as those
of the Kurds, notoriously recognized in the Treaty of Sèvres in 1920
but never realized in practice. Generally, however, nationalist
movements developed later than in eastern Europe, the
homogenization of populations did not develop so far, and genocide
was not a comparable issue in the first half of the twentieth century.
e question that arises, however, is whether the genocidal
experiences of eastern Europe in the early twentieth century, in
whi the destruction of the Armenians was su a defining
moment, can be seen as a precedent for recent and contemporary
developments in the wider Middle East.
187
Genocide in the Middle East during the Cold
War period
In Europe, the 1940s were the culmination, Bloxham suggests, of
three-quarters of a century of genocide.26 However, the Second
World War not only saw the greatest atrocities but also produced a
resolution of the combined inter-imperial and nationalist conflicts
that had produced genocide over the longer period. e Soviet Union
was able, with the acquiescence of the Western powers, to suppress
nationalism across eastern Europe and impose a new population and
border disposition whi the subsequent Cold War froze in place.
However, as genocide ended in Europe, five types of situations
generated new genocidal conflicts outside Europe during the Cold
War period.27 First, Cold War polarization (soon piing China
against the USSR, as well as the West) saw class-targeted violence,
both by the Mao Zedong and Pol Pot regimes and by anti-
Communist dictatorships in Indonesia and later in Latin America.
Second, wars of decolonization in the former European empires saw
genocidal episodes in insurgency and counterinsurgency. ird,
conflicts over control of the post-colonial state saw genocidal
massacres, for example in Rwanda and Burundi. Fourth, secessionist
wars from larger post-colonial states saw genocidal violence in
places su as Bangladesh, Biafra, Indonesia, and Sudan. Finally,
seler colonization continued to lead to the destruction of
indigenous peoples in Latin America.
e Middle East was not prominent in this new history of
genocide, and only some of these types of situation occurred in the
region in the second half of the twentieth century. e genocide
literature has mainly considered Iraq, whi therefore appears as
exceptional to the main paern of politics in the region. Aer the
188
rise to full power of Saddam Hussein in 1979 and his aa on Iran
in 1980, the Ba`athist regime carried out massacres of Kurds and
other minority groups in 1983, and in the Anfal campaign of 1986–
9,28 thousands of Kurdish villages were razed, tens of thousands of
civilians killed—most notoriously in the emical bombing of
Halabja—and hundreds of thousands displaced.29 Violence was also
directed at Shi`a, Assyrians and Yezidis. However, these policies
represented a radicalization of earlier Ba`athist policies aimed at
Arabizing the Kurdish-dominated north, partly because of security
concerns related to regional conflicts as Human Rights Wat
summarizes:
In the 1970s, 80s, and 90s, Iraqi central governments aempted to ange the ethnic
composition of northern Iraq by expelling hundreds of thousands of Kurds and other
minorities from their homes, and repopulating the areas with Arabs transferred from
central and southern Iraq. e government policy, known as “arabization” (ta`rib),
intensified in the second half of the 1970s with the aim of reducing minority
populations whom authorities considered to be of questionable loyalty in this strategic
area. e government responded to Kurdish insurgencies by mounting a concerted
campaign to alter the demographic makeup of northern Iraq, especially in areas
bordering Turkey and Iran. e government used military force and intimidation as the
primary methods. ese policies completely depopulated entire non-Arab villages that
authorities then bulldozed. By the late 1970s the Iraqi government had forcibly
evacuated as least a quarter of a million Kurds and other non-Arabs.30
Nor were the extensive Iraqi population forced removals the only
su developments. e emergence of the Israeli state had seen the
removal and flight of over 700,000 Palestinian Arabs during the war
of 1948, and the resulting societal destruction has also begun to be
discussed within a genocide frame.31 However, since the violent
‘ethnic cleansing’ involved a relatively small ratio of killed (about
5,000) to the population removed, some do not regard it as
genocide.32 Pappé presents compelling evidence that the Zionist
leadership pre-planned the emptying of Palestinian towns and
villages, and in any case Israel consolidated the destruction of most
of Palestinian society in its territory by refusing to allow refugees to
189
return.33 In this sense the erasure of Palestinian society was clearly
intentional. Yet Palestine can also appear as an outlier: an
exceptionally late case of seler colonization, an atypical projection
of a European nationalist project, and an unusual decolonization in
whi the colonizers succeeded in thwarting indigenous nationalist
claims.
erefore, Middle Eastern regimes have not been seen as widely
genocidal in this period. In an influential study, Miael Mann
explores the impact of regime type on what he calls ‘murderous
ethnic cleansing’ (whi I consider here within the scope of
genocide).34 He argues that neither established democracies nor
stable authoritarian regimes are prone to genocide, but unstable and
democratizing regimes (and also seler democracies) are. It could be
argued that the Middle East’s relative insulation from global
democratizing processes during the Cold War, when many regimes
approximated to stable authoritarianism, helped ensure that the
genocidal processes whi affected some parts of Asia, Africa, and
Latin America in this period were less evident.
e key analytical issue in exploring the role of genocide is the
relationship between the generally repressive aracter of Middle
Eastern regimes and specifically genocidal tendencies. e region’s
regimes, monarical and republican, Islamist and Zionist,
proclaimed ‘national’ values while resting on the support of specific
communal groups and discriminating against and repressing others.
Excluded population groups suffered more everywhere, amidst
general repression, especially of political opponents, whi was oen
brutal and violent. e question is why this paern of rule
radicalized in some countries, at specific moments, into aempts to
partially destroy out-groups, either in the sense of removing them
from specific locales and/or through physical violence against large
numbers of members of these groups.
It would be easy to link genocide to the exceptionally brutal
aracter of regimes like Saddam Hussein’s, Hafez al-Assad’s in
190
Syria (responsible for the Hama massacre of 1982) and Muammar
Ghadaffi’s in Libya (the Abu Salim prison massacre of 1996).
However, population displacement and mass violence continued
under other types of regime. In Turkey, under both military and
democratic rule, three thousand Kurdish villages were wiped off the
map and hundreds of thousands displaced; Turkey also expelled the
Greek population from the areas of Cyprus whi it occupied in
1974. Israel gradually extended its removal of Palestinian habitants
aer it occupied the West Bank in 1967, and Lebanese militia allied
to it carried out the 1982 massacre in the Sabra and Shatila refugee
camps.
us, explanations based on regime type are not sufficient. Clearly
counterinsurgency motives were oen important: massacres were
extreme forms of repression, oen in response to resistance. Forced
population movements showed the role of nationalist ideology and
(in the case of some Iraqi Arabization) economic security interests.
International conflict was also crucial: Saddam’s more radical
policies were conditioned by the conflicts resulting from his
aggressive international policies (the invasions of Iran and Kuwait)
as well as by his despotic type of rule.
Following the regional-international approa, we also need to
consider the role of the rival U.S. and Soviet hegemonies in
maintaining regime stability. Another widely accepted
generalization is that war is the harbinger of genocide, and the
Middle East was hardly without wars.35 Yet the wars between the
Arab states and Israel, for example, were brief and did not
fundamentally threaten regional or regime stability. Even the Iran-
Iraq war, whi was long and brutal, was regionally contained: the
revolutionary Iranian regime was isolated, since both superpowers
and most Arab states baed Iraq. Iraq’s atrocities against the Kurds
might then be seen as exceptions conditioned both by a uniquely
‘totalitarian’ regime and the international indulgence towards it,
because of its role in containing Iran.
191
From the end of the Cold War to genocidal
civil war in Iraq
If instability conditions genocide, then (geo)political upheavals may
be expected to create conflict and violence. Globally, the end of the
Cold War saw huge international and domestic political anges, not
just in Europe, but across Asia, Africa and Latin America in the
1980s and 1990s. In central Europe, ‘velvet’ revolutions accompanied
the transition, but elsewhere this was far from the case: in some
post-Soviet areas (Georgia, Armenia-Azerbaijan) as well as in
Yugoslavia, wars involving widespread genocidal violence and
expulsions took place. Democracy was generally associated with
national assertiveness, and where conflict developed, genocidal
violence was oen directed against out-groups, whose presence was
regarded as incompatible with the new nation-states.
For a quarter of a century, the Middle East appeared remarkably
immune to these democratic upheavals and the conflicts they
precipitated. However, another effect of the end of the Cold War, the
emboldening of U.S. military power–projection whi accompanied
first the marginalization and then the disintegration of Soviet power,
had major consequences in the region. e U.S.–led war to reverse
Saddam Hussein’s invasion of Kuwait, in 1991, provoked Shi`a and
Kurdish rebellions whi the regime brutally repressed with
extended violence against civilian populations. e consequent U.S.–
U.K.–Fren intervention in Kurdistan was not only a notable
precedent for 1990s ‘humanitarian’ responses to genocide. It also
began a decade of containment of the Saddam regime, with U.N.
sanctions also seen as raising questions of genocide against the Iraqi
population.36
192
e U.S.–led war over Kuwait had another fateful consequence:
the turning of armed Sunni Islamism, whi had allied with U.S.
power against the USSR in Afghanistan in the 1980s, against the
United States with the formation of al-Qaeda and the series of
aas that culminated in the terrorist massacres in New York and
Washington in 2001. ese in turn would embolden the George W.
Bush administration to its 2003 invasion to overthrow Saddam
Hussein. Hyped as promoting a democratic Middle East, the formal
democratization of Iraq passed power to parties of the Shi`a majority
and allowed al-Qaeda to organize among the Sunni minority. e
‘resistance’, especially al-Qaeda in Iraq, found it easier to aa so
civilian targets among the Shi`a, Kurds, Yezidis and others than to
frontally confront U.S. forces.37 Shi`ite militia, newly linked into
state power, responded in what became a low-level civil war by
2005.38 However, this was not merely a war between two sets of
militia: both sides targeted the ‘other’ population in the areas of
Baghdad and other centers whi they controlled, in order to render
them homogeneous, carrying out extensive executions, spreading
terror and forcing large numbers to leave. e civil war added
hugely to the numbers of displaced people and refugees in
neighboring countries, already swollen aer the Iran war, sanctions,
and the U.S. invasion.
A new genocide advocacy whi emerged in North America aer
the 1994 Rwandan genocide had found, at this point, a major focus
in the Darfur crisis. Mahmood Mandani pointed out at the time:
e similarities between Iraq and Darfur are remarkable. e estimate of the number of
civilians killed … is roughly similar. e killers are mostly paramilitaries, closely linked
to the official military, whi is said to be their main source of arms. e victims too are
by and large identified as members of groups, rather than targeted as individuals. But
the violence in the two places is named differently. In Iraq, it is said to be a cycle of
insurgency and counterinsurgency; in Darfur, it is called genocide. Why the difference?
Who does the naming? Who is being named? What difference does it make?39
193
Mamdani raised these questions in order to question the ‘genocide’
appropriation of Darfur, but the refusal of a genocide frame for the
Iraqi war is equally striking. Clearly, linkage with the U.S. invasion
that provoked the violence aer 2003 had bloed genocide
recognition by solars and activists who take for granted the
essentially anti-genocidal aracter of the U.S. world role. A decade
later, however, those who make these assumptions are recognizing
genocide in Iraq and Syria, but only, we have seen, on the part of
Islamic State.
194
From the Arab Spring to wider genocide in
the Middle East
If it was anaronistic that authoritarian rule survived across the
Middle East aer the end of the Cold War, it could not last forever.
With the democratic movements of 2009–12 (the Green movement in
Iran followed by the Arab Spring), the worldwide trend appeared in
the region. Not only is it, therefore, also unsurprising that
democratization led to civil war, extreme repression and genocidal
violence in a number of cases, since similar outcomes followed
previous waves of democratization in the former Soviet and
Yugoslav regions, in Rwanda, and elsewhere in Africa. e
entrened aracter of most Middle Eastern regimes meant that
resistance to ange was particularly likely to be strong. It is
important, however, to distinguish different genocidal dynamics
from the general repressive responses of the authoritarian regimes.
Most existing regimes whi have retained power, including those of
Iran and the Arab monaries, have mainly responded with
repression, even oen brutal, but without aempts to partially
destroy populations, whi we may term genocidal violence.
Genocide appears to have been an issue in four main cases. First,
the Syrian Assad regime has systematically deployed extensive
violence (bombardments and emical aas) against opposition-
supporting populations since 2012, as well as extensive torture
against political prisoners. (Similarly, atrocities have been commied
against Sunni populations in Iraq by government forces and Shi`ite
militia.) Second, the counterrevolutionary Sisi regime in Egypt,
whi came to power through a coup following anti-Muslim
Brotherhood demonstrations, systematically massacred Brotherhood
supporters while repressing their demonstrations in late-2013, and
195
then used the courts to impose mass death sentences on hundreds of
its supporters. ese forms of extreme violence went far beyond the
measures adopted by the existing dictatorships. ird, the Israeli
government launed widespread aas on Gaza in 2009 and 2014,
in the laer case killing two thousand Palestinians in the systematic
destruction of neighborhoods. Finally, Islamic State has massacred,
expelled, enslaved and forcibly assimilated large numbers of non-
Sunnis from the areas of Syria and Iraq that it controls, and its
affiliates have carried out similar acts in other areas.
As noted at the beginning of this apter, mu commentary has
seen only Islamic State’s policies as genocidal. Clearly it openly
projects a genocidal ideology, proclaiming its intentional destruction
of non-Sunni groups. In contrast, the other actors do not formally
identify specific communities as enemies: indeed they deny this, and
claim to be fighting only political enemies. Whereas Islamic State
specifically identifies individuals by their religious identities, the
Syrian and Israeli governments target populations en masse by
virtue of their presence in areas controlled by their armed enemies,
and like the Egyptian regime target those involved in enemy
political, administrative and communal organizations. Yet similar
tactics can be seen in apparently divergent campaigns: for example,
al-Qaeda in Iraq, forerunner of Islamic State, concentrated many of
its suicide bombings on the new Iraqi police, and Israel, in its 2009
assault on Gaza, also systematically aaed police stations and
their personnel, whi it saw as extensions of Hamas. We can
consider all these policies and actions genocidal, however, to the
extent that they manifest aempts to destroy particular civilian
communities or groups as well as armed opponents.
196
Conclusion
is apter has explored the extent and implications of genocidal
tendencies in Middle Eastern politics, especially in the period since
the Second World War, in the light of a global perspective on
regional paerns of genocide. It has argued that the problem of
genocide has been more widespread in Middle Eastern history than
sometimes recognized, and has been exacerbated by the new
conflicts of the twenty-first century arising from the emergence of
democratic allenges to authoritarianism, in the radicalization of
regime repression as well as the policies of insurgents like Islamic
State.
In a global perspective, we need to ask whether these recent
developments represent longer-term historical dynamics as well a
specific region-wide crisis of rule. e comparative literature
suggests the importance of linkages between two sets of processes:
nationalist homogenization of populations and geopolitical rivalries.
Heather Rae sees genocide as a ‘pathological’ form of a general
homogenization of populations within nation-state boundaries.40
Mann argues that ‘murderous cleansing’ arises with democratization
because the ‘demos’ becomes identified with a particular ethnic or
religious identity.41 Bloxham argues that twentieth-century Europe
saw a ‘great unweaving’ of formerly ethnically mixed populations in
the context of the two world wars and other conflicts.42 While these
authors all consider ‘homogenization’ at the national level, Gerard
Toal and Carl Dahlmann show how in Bosnia in the early 1990s,
‘ethnopoliticization’ was followed by ‘ethnoterritorialization’ at a
municipal level, through a stalemated genocidal civil war.43 A
corresponding local homogenization of populations was reinforced,
197
despite the strongest U.N.-sponsored ‘return’ process for refugees yet
seen.
In the Middle East, the period aer the Second World War saw the
establishment of formal nation-states and the rise of secular
nationalism, although states like Saudi Arabia, Israel and (aer 1979)
Iran were based on a dominant religious ideology. Yet despite
nation-state formation, populations remained mostly mixed and
there was only limited population ‘unweaving.’ ere were some
significant movements in addition to those in Iraq and Palestine
noted above: Jewish populations were expelled or migrated to Israel,
non-Sunnis were forced out of key oil areas in Iraq, populations on
both sides concentrated aer Lebanon’s civil wars. However states
mostly repressed rather than expelled or massacred their ‘other’
communal groups. Meanwhile, although geopolitical rivalries
between regional states were manifest—Gulf Arab states feared
Iranian dominance even before the Islamic Revolution—they were
largely contained by Cold War alliances.44
e civil wars in Iraq, since 2003, and Syria, since 2011, have seen
huge population flows whi, like those in former Yugoslavia, have
seen local minorities forced out of territories controlled by all sides.
e genocidal sectarian agenda of Islamic State is exceptional only in
its explicitness: as actors controlling the various areas are
increasingly identified with particular communal identities, non-
members have widely been compelled to move. e result may be,
historian Joshua Landis has speculated, a ‘great sorting out’ of
Middle Eastern populations similar to that whi occurred earlier in
Europe.45 e centrality to the Syrian conflict of the open
geopolitical polarization between the Gulf Arab states and Iran only
deepens the sense of a historic turning-point. In this context, Israel’s
expansion into the occupied West Bank and the increasing assertion
of its right to undivided control of ‘the land of Israel’ appear as part
of a wider process whi is homogenizing populations and removing
the unwanted. Some regimes whi profess to protect some
198
minorities, as Assad does Syria’s Shi`as and Sisi Egypt’s Coptic
Christians, do so in order to create alliances against more important
out-groups, and so the security whi they provide may well prove
temporary.
Events in the Middle East are moving fast and the trends
discussed in this apter will undoubtedly be modified by new
developments. However, the analysis suggests that genocide is a
significant factor in contemporary Middle Eastern politics whi
may be contributing to profound social anges. Comparisons with
other world regions and periods suggest that the crisis will not end
soon or without further genocide.
199
Notes
1 Amnesty International. Ethnic cleansing on a historic scale: Islamic State’s systematic
targeting of minorities in Northern Iraq, 2014.
www.es.amnesty.org/uploads/media/Iraq_ethnic_cleansing_final_formaed.pdf;
Amnesty International. Escape from Hell: Torture and sexual slavery in Islamic State
captivity in Iraq, 2014. www.amnesty.org.uk/sites/default/files/escape_from_hell_-
_torture_and_sexual_slavery_in_islamic_state_captivity_in_iraq_-_english_2.pdf
(accessed September 4, 2016).
2 “Statement by Adama Dieng, Special Adviser of the Secretary-General on the Prevention
of Genocide, and Jennifer Welsh, Special Adviser of the Secretary-General on the
Responsibility to Protect, on the situation in Iraq,” United Nations, August 12, 2014.
www.un.org/en/preventgenocide/adviser/pdf/2014-08-
12.Statement%20of%20the%20Special%20Advisers%20on%20Iraq.pdf (accessed September
4, 2016).
3 “Open leer from Concerned Genocide Solars regarding the situation in Syria and
Iraq,” Genocide Wat, August 26, 2014. hp://genocidewat.net/2014/08/28/open-
leer-from-concerned-genocide-solars-regarding-the-situation-in-syria-and-iraq/
(accessed September 4, 2016).
4 A. Dirk Moses, “Toward a theory of critical genocide studies,” Online Encyclopedia of
Mass Violence, published on 18 April 2008, www.massviolence.org/Toward-a-eory-of-
Critical-Genocide-Studies (accessed September 4, 2016); A. Dirk Moses, “Paranoia and
partisanship: Genocide studies, holocaust historiography and the ‘apocalyptic
conjuncture,’” The Historical Journal vol. 54, no 2 (2011): 553–83; Martin Shaw, Genocide
and International Relations: Changing Patterns in Upheavals of the Later Modern World
(Cambridge: Cambridge University Press, 2013), 15–27.
5 Christian Gerla, Extremely Violent Societies: Mass Violence in the Twentieth Century
World. (Cambridge: Cambridge University Press, 2010).
200
6 Leo Kuper, Genocide: Its Political Use in the Twentieth Century (Harmondsworth:
Penguin, 1981); Helen Fein, “Genocide: A sociological perspective,” Current Sociology
vol. 38, no. 1 (1990): 1–126; Frank Chalk and Kurt Jonassohn, The History and Sociology
of Genocide: Analyses and Case Studies (New Haven: Yale University Press, 1991);
Martin Shaw, What is Genocide, 2nd Ed. (Cambridge: Polity, 2015).
7 Raphael Lemkin, Axis Rule in Occupied Europe (New York: Carnegie, 1944); United
Nations. Convention on the Prevention and Punishment of the Crime of Genocide, 1948.
hps://treaties.un.org/doc/Publication/U.N.TS/Volume%2078/volume-78-I-1021-
English.pdf (accessed September 4, 2016).
8 Lemkin, Axis Rule in Occupied Europe.
9 United Nations, Convention on the Prevention and Punishment of the Crime of Genocide.
10 Shaw, What is Genocide? 66–83.
11 Chalk and Jonassohn, (1991), The History and Sociology of Genocide: Analyses and Case
Studies, 23.
12 Shaw, What is Genocide?
13 Kuper, Genocide, 32.
14 Martin Shaw, Genocide and International Relations: Changing Patterns in Upheavals of
the Later Modern World (Cambridge: Cambridge University Press, 2013) 6.
15 Shaw, What is Genocide? 193.
16 Sco Straus, “Second-generation comparative resear on genocide,” World Politics vol.
59 (2007): 476–501.
17 Mark Levene, The Meaning of Genocide. Volume 1 of Genocide in the Age of the Nation
State (London: IB Tauris, 2005) 156–9; Manus Midlarsky, The Killing Trap (Cambridge:
Cambridge University Press, 2005) 18; Donald Bloxham, The Great Game of Genocide
(Oxford: Oxford University Press, 2005); Donald Bloxham, The Final Solution: A
Genocide (Oxford: Oxford University Press, 2009); Donald Bloxham, “e great
unweaving: e removal of peoples in Europe, 1875–1949”, in Removing Peoples: Forced
Removal in the Modern World, Riard Bessell and Claudia Haake eds., (Oxford: Oxford
University Press, 2009) 167–208.
201
18 Shaw, Genocide and International Relations.
19 Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin (New York: Basic Books,
2010).
20 Riard Hovanissian, ed., The Armenian Genocide in Historical Perspective (New
Brunswi: Transaction, 1987); Robert Melson, Revolution and Genocide: On the Origins
of the Armenian Genocide and the Holocaust (Chicago: University of Chicago Press,
1996); Taner Akçam, The Young Turks’ Crime Against Humanity: The Armenian
Genocide and Ethnic Cleansing in the Ottoman Empire (Princeton: Princeton University
Press, 2012); Hannibal Travis, Genocide in the Middle East: The Ottoman Empire, Iraq
and Sudan (Durham: Carolina Academic Press, 2010) 173–226.
21 Bloxham, The Great Game of Genocide.
22 Bloxham, The Great Game of Genocide, 59.
23 Travis, Genocide in the Middle East, 237–92.
24 Bloxham, The Great Game of Genocide, 164.
25 Bloxham, The Final Solution: A Genocide.
26 Bloxham, “e great unweaving: e removal of peoples in Europe, 1875–1949.”
27 Shaw, Genocide and International Relations, 124–44.
28 Travis, Genocide in the Middle East, 389–416.
29 Joost R. Hiltermann, A Poisonous Affair: America, Iraq, and the Gassing of Halabja
(Cambridge: Cambridge University Press, 2007).
30 Human Rights Wat, On Vulnerable Ground: Violence against Minority Communities
in Nineveh Province’s Disputed Territories (New York: HRW, 2009).
31 Martin Shaw, “Palestine in an international historical perspective on genocide,” Holy
Land Studies 9, No. 1 (2010): 1–24.
32 Martin Shaw and Omer Bartov, “e question of genocide in Palestine, 1948: An
exange between Martin Shaw and Omer Bartov,” Journal of Genocide Research vol. 12
(2010): 3–4, 243–59. Bartov’s opinion.
202
33 Ilan Pappé, The Ethnic Cleansing of Palestine (New York: Oneworld, 2006); Mark Levene,
“Review of I. Pappé; e ethnic cleansing of Palestine,” Journal of Genocide Research
vol. 9, no.4 (2007): 675–81.
34 Miael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge:
Cambridge University Press, 2005).
35 Shaw, Genocide and International Relations; Levene, The Meaning of Genocide; Mann,
The Dark Side of Democracy, 32.
36 Joy Gordon, Invisible War: The United States and the Iraq Sanctions (Cambridge:
Harvard University Press, 2010).
37 M.J. Kirdar, AQAM Futures Project Case Study Series. Al Qaeda in Iraq, 2011.
hp://csis.org/files/publication/110614_Kirdar_AlQaedaIraq_Web.pdf (accessed
September 4, 2016).
38 J.D. Fearon, “Iraq’s Civil War,” Foreign Affairs vol. 86, no. 2 (2007): 2–15; Anthony
Cordesman and Emma Davies, Iraq’s Insurgency and the Road to Civil Conflict
(Washington, D.C.: Center for Strategic and International Studies, 2008).
39 Mahmood Mamdani, “e politics of naming: Genocide, civil war, insurgency,” London
Review of Books vol. 29, no. 5 (2007): 5.
40 Heather Rae, State Identities and the Homogenisation of Peoples (Cambridge: Cambridge
University Press, 2002).
41 Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing.
42 Bloxham, “e great unweaving: e removal of peoples in Europe, 1875–1949”.
43 Gerard Toal and Carl Dahlman, Bosnia Remade: Ethnic Cleansing and its Reversal
(Oxford: Oxford University Press, 2011).
44 Fred Halliday, Iran: Dictatorship and Development (Harmondsworth: Penguin, 1978).
45 “e great sorting out: Ethnicity and the future of the Levant,” Joshua Landis, December
18, 2013, hp://qifanabki.com/2013/12/18/landis-ethnicity/ (accessed September 4, 2016).
203
Selected Bibliography
Akçam, T. The Young Turks’ Crime Against Humanity: The
Armenian Genocide and Ethnic Cleansing in the Ottoman
Empire. Princeton, NJ: Princeton University Press, 2012.
Amnesty International. (2014). Ethnic Cleansing on a historic scale:
Islamic State’s systematic targeting of minorities in Northern
Iraq. Available at:
www.es.amnesty.org/uploads/media/Iraq_ethnic_cleansing_final
_formaed.pdf (accessed July 7, 2016).
Bloxham, D. The Great Game of Genocide. Oxford: Oxford
University Press, 2005.
Bloxham, D. “e great unweaving: the removal of peoples in
Europe, 1875–1949” in Bessell, R. and Haake, C., eds. Removing
Peoples: Forced Removal in the Modern World. Oxford: Oxford
University Press, 2009.
Gordon, J. Invisible War: The United States and the Iraq Sanctions.
Cambridge, MA: Harvard University Press, 2010.
Hiltermann, J. R. A Poisonous Affair: America, Iraq, and the Gassing
of Halabja. Cambridge: Cambridge University Press, 2007.
Hovanissian, R., ed. The Armenian Genocide in Historical
Perspective. New Brunswi, NJ: Transaction, 2007.
Mamdani, M. “e politics of naming: genocide, civil war,
insurgency” in London Review of Books, (2007) 29(5): 5–8.
Pappé, I. The Ethnic Cleansing of Palestine. New York: Oneworld,
2006.
Shaw, M. What is Genocide? Cambridge: Polity, 2007/15.
Shaw, Martin. “Palestine in an international historical perspective on
genocide” in Holy Land Studies, (2007) 9(1): 1–24.
204
Shaw, Martin. Genocide and International Relations: Changing
Patterns in Upheavals of the Later Modern World. Cambridge:
Cambridge University Press, 2013.
Straus, S. “Second-generation comparative resear on genocide”.
World Politics, (2007) 59: 476–501.
Travis, H. Genocide in the Middle East: The Ottoman Empire, Iraq
and Sudan. Durham, NC: Carolina Academic Press, 2010.
205
6
e ISIS Crisis and the Broken
Politics of the Arab World
A framework for understanding Radical
Islamism
Nader Hashemi
206
Introduction
When future historians of the Middle East look ba on the early
twenty-first century, the rise of the Islamic State in Iraq and Syria
(ISIS) will be discussed as a key turning point in the politics of the
region.1 As a result of the expansion of ISIS in 2014, the boundary
between Iraq and Syria has effectively dissolved. e one-hundred-
year-old colonial borders of the Middle East have not faced su a
radical restructuring since Gamal Abdel Nasser aempted to unify
Egypt and Syria (1958–61), and Saddam Hussein’s aempt at
annexing Kuwait (1990).2 While these prior aempts to re-fashion
borders were short-lived, the phenomenon of the Islamic State will
not disappear as quily. In part, this is because the forces that have
produced ISIS are driven not from above, as in the aforementioned
cases, but are a result of social conditions that have emerged from
below and whi have been brewing in the region for some time.3
us, ISIS can be understood as a product of these dire social
conditions whi has produced a broken politics for the Middle East.
One of the defining features of ISIS is its brutality. Rarely has the
world been exposed to su sadistic violence from an armed
insurgency: its tactics include mass executions, public beheadings,
the immolation of prisoners and sexual slavery, mu of whi is
videotaped and publicized on social media as a recruiting tool. A
New York Times investigation revealed the “systematic rape of women and girls from the Yazidi religious minority has become
deeply enmeshed in the organization” in the form of a “theology of
rape.” As a consequence, the U.N. High Commissioner for Human
Rights has arged ISIS with genocide, specifically with respect to its
persecution of Iraq’s Yazidi minority.4
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e ISIS crisis, however, is not merely a regional problem: it has
quily morphed into a global security allenge as well. Aer the
capture of Mosul (Iraq’s second largest city) and its expansion to the
outskirts of Baghdad, ISIS at its height controlled an area roughly
the size of Great Britain, ruling over five to eight million people. In
response, an international coalition of 65 countries, led by the United
States, was assembled to “degrade, and ultimately to destroy, ISIL,”
according to President Obama, “through a comprehensive and
sustained counterterrorism strategy.”5 As the war against ISIS
entered its second year, and aer approximately 8,000 airstrikes at a
cost of 5.36 billion US dollars, US General Martin Dempsey, the
Chairman of the Joint Chiefs of Staff, observed that the conflict was
“tactically stalemated.”6
During this time ISIS was able to recruit 1,000 new fighters per
month. e overall number of foreign recruits from 100 different
countries doubled from 15,000 to 30,000 in one year, including
approximately 4,500 fighters from the West. ISIS-related aas also
took place during this period in 26 countries, while loyalist groups in
ten countries proclaimed their allegiance and announced the
creation of ISIS wilayats or provinces.7 It was perhaps for these reasons that the Director of the FBI proclaimed ISIS a bigger threat
to the US than Al Qaeda.8
Prominent Western military and political leaders now speak of a
long-term struggle against ISIS. Upon his retirement, General Ray
Odierno, the US Army ief of staff, observed that in “my mind, ISIS
is a ten to twenty year problem, it’s not a two years problem.” Leon
Panea, who headed both the CIA and the Pentagon, noted that “I
think we’re looking at kind of a 30-year war,” while British Prime
Minister David Cameron described the war against ISIS as “the
struggle of our generation.”9 All of this suggests that ISIS will remain
a global security problem for the foreseeable future.
e critical question that emerges from this picture is: what is the
best framework of analysis to explain the rise and expansion of ISIS?
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Is the problem with ISIS fundamentally due to something inherent in
Islam or in Arab culture? Riard Haass, the President of the Council
on Foreign Relations, hinted at this when he observed that the
Middle East “is a deeply flawed part of the world that never came to
terms with modernity.”10 Similarly, President Obama on several
occasions has spoken about “ancient sectarian differences” between
Sunnis and Shias, observing that the turmoil in the region is “rooted
in conflict that date ba millennia.”11 His implication is that today
we are witnessing a Muslim version of Europe’s wars of religion in
the sixteenth century, and there is lile the international community
can do to ameliorate the problems facing the region; these conflicts
must burn themselves out. Or is the problem with ISIS
fundamentally connected to the legacy of US intervention in Iraq in
2003? Did a failed US policy toward the Middle East inadvertently
create ISIS, as some have argued?12 What is the best entry point or
point of departure to understand this problem?
is apter argues that the twin themes of human rights and
democracy, or rather, their general absence in the Arab–Islamic
world, can best explain the rise and expansion of ISIS. High levels of
state-sanctioned human rights violations and political
authoritarianism have been core features of the politics of the region
for several decades, and it is the consequences of these policies that
have fomented the growth of radical Islamist militancy. e political
vacuum that these crises have produced—engendered by war, state
collapse, and breakdown—has provided a fertile soil for the
emergence and expansion of salafi-jihadi Islam for whi ISIS is the
most recent iteration. Until these social conditions are anged, there
is no reasonable expectation that the ISIS crisis can be ameliorated.
209
e destructive legacy of political tyranny
and war
ere are many dimensions to the ISIS crisis. Structurally speaking,
the roots of this problem can be situated at the intersection of two
sets of political developments that have been brewing in the region
for decades. ese developments have quietly corroded the societies
and politics of the Middle East, and have converged at the present
moment to produce a set of social conditions conducive to the rise of
the Islamic State. e first development, whi has a longer history,
is a direct byproduct of political authoritarianism. e second
development, whi is more recent, is the destabilizing effects that
flow from war and state breakdown.
For most of its modern history, political authoritarianism has been
a key feature of the politics of the Middle East. Survey data has
consistently revealed that among the regions of the world that are
least democratic, the Arab Middle East has repeatedly topped the
list.13 e roots of this go ba to the colonial era and the rise of
modern states: an institutional legacy of colonialism was bequeathed
to the region, where the military, the police, and the bureaucracy
emerged as the strongest state institutions during the post-
independence period.14 An explanation on the persistence of
authoritarianism in the Middle East is a vast topic beyond the scope
of this apter. One thing, however, can be asserted with certainty:
the weakness of democratization and liberalization in the Arab-
Islamic world cannot be explained by Orientalist theories about the
sui generis nature of the Islamic world and its alleged problem with
modernity.15
Authoritarian regimes are not monolithic. ere is considerable
variation in terms of the nature of state–society relations and the
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extent of political tyranny. At the extreme end of the spectrum, there
are those regimes that Eqbal Ahmad has called ‘neofascist.’ e
survival of these regimes is dependent on
widespread repression of political opposition and social institutions outside of state
control (religious, educational, and professional associations, labor and peasant
organizations). e 1960s and 1970s witnessed a hardening of the authoritarian arteries
of these states, the systematization of terror, the ‘modernization’ and ‘rationalization’ of
their repressive institutions.16
As a result, one of the enduring aracteristics of these neofascist
regimes is that they are “the most blatant contemporary violators of
human rights in both [a] substantive and procedural manner.”17
Eqbal Ahmad’s analysis of these political systems was in the
context of the early 1980s with a view toward the entire global
south. By the late twentieth century, however, these paerns of
repressive rule further intensified in some countries and several of
the worst forms of neofascist regimes could be found in the Arab
world. ey were effectively “national security state[s]” where the
ruling elites viewed the “state as absolute, the individual as
unimportant.” e armed forces were the most important institution
in the country, and were viewed by ruling elites as a “major force for
constructive social ange.” Beyond the armed forces, there exists a
vast network of “secret political organizations … [that] permeate
society. eir highest officials rank among the countries’ most
powerful men.”18 Iraq and Syria under their respective Ba`ath parties
most closely approximate this description.19
Saddam Hussein’s Iraq was a human rights catastrophe. Upon
seizing power, Hussein expanded the institutions of violence and
ruled the country through a combination of lies, fear, show trials,
and a vast network of secret police and intelligence organizations.
e Shia population suffered persecution, and minorities like the
Kurds were harshly repressed. When they resisted these forms of
oppression, they were subjected to what Human Rights Wat called
“a campaign of extermination” that amounted to the “crime of
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genocide.”20 In 1990, Iraq ranked number one in the world for the
number of disappeared people. e U.N. aracterized the human
rights situation in the 1990s as being “of an exceptionally grave
aracter—so grave that it has few parallels in the years that have
passed since the Second World War.”21 Syria has suffered the same
fate under the rule of the House of Assad.
In his novella, The Silence and the Roar, the Syrian writer Nihad Sirees paints a vivid portrait of life under the Assad regime. “You
beer be careful,” the lead protagonist, Fathi Sheen, tell his mother.
“A joke about the Leader costs whoever cras it six months hard
time.” Parallels with North Korea abound: political life revolves
around the cult of personality of the noble Leader.
If ever it became necessary to play a song about love, it would have to be a song about
love of the Leader. All feelings must be oriented toward the Leader. Love, ardor and
rapture, infatuation and affection, passion and ecstasy: they must all be reserved for the
Leader. Wasting su emotion on a worthless young woman is nothing less than moral
decay itself.22
A comparison of the human rights records of Arab League
member states places Syria at the extreme end of a spectrum of
repression. Arguably, only Saddam Hussein’s Iraq was worse. e
1982 massacre in Hama killed roughly 20,000 people in one week and
is frequently mentioned to highlight the depredations of the Assad
regime. Less well known are the horrors of Syria’s vast prison
system. Tens of thousands have passed through its doors. Untold
numbers have disappeared. A 1996 Human Rights Wat report on
the notorious Tadmor prison describes “deaths under torture” and
“summary executions on a massive scale.” One former inmate
described the place as a “kingdom of death and madness” and
emaciated prisoners were compared to “survivors of Nazi
concentration camps.”23
But this was just one jail in a veritable torture aripelago. e
full story of Syria’s prison system and internal human rights
nightmare under the Assads has yet to be told. e horrors of Syria’s
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prison system have grown exponentially since the Arab Spring
revolt of 2011. e 55,000 photographs of torture victims smuggled
out of Syria by a military defector code-named Caesar, authenticated
by Human Rights Wat, have given us a glimpse. When the full
truth emerges, it may well rival the horrors of the Soviet Union’s
prison system ronicled in Alexander Solzhenitsyn’s Gulag
Archipelago.24
e key point that has a bearing on the rise of ISIS is that this
legacy of despotism and tyranny has destroyed the social fabric of
Iraq and Syria. is process was set in motion long before the
American invasion of Iraq in 2003 and the 2011 Syrian uprising, both
of whi exacerbated a process of social decay. e concept of social
cohesion is relevant here. Social scientists have long recognized that
stable polities are rooted in a dense network of voluntary citizen
associations that help to sustain civil society and community
relations. is generates social capital and social trust, and produces
cooperation between citizens of diverse bagrounds. Over time
conditions are created that enhance social integration, cultivating
ties that bind society together, thus promoting peace and internal
stability.25
e legacy of political authoritarianism in the Arab world has
produced the opposite of these trends. Instead of social cohesion,
there has been social disintegration, instead of social trust there is
widespread fear and distrust of others. Suspicion of paid informants
of the state’s intelligence services is a normal part of life. ‘e walls
have ears’ phenomenon is a common feature of police states. e net
result of the habituation of these paerns of social and political life
over the course of decades is the creation of a culture of fear,
paranoia, and deceit replete with conspiracy theories and the desire
to exact revenge. When society is subjected to a calamitous sho,
via war or state collapse, collective disorientation sets in and the
doors to radicalization are opened.26
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Consider the case of Iraq. For the last thirty-six years, Iraq has
been deeply traumatized by ongoing war. e Iran–Iraq War (1980–
8) killed and wounded approximately one million people on both
sides. It destroyed Iraq’s main oil terminals, refineries, and
petroemical plants and cost Iraq approximately US$452 billion.
ere was a short respite before the onset of the Iraq–Kuwait war
(1990–1). During this second war, most of Iraq’s remaining economic
infrastructure was destroyed, and severe economic sanctions were
imposed by the United Nations, under the infamous “Oil for Food”
program. Shortly thereaer, there was a sharp increase in
malnutrition, infant mortality, and disease that devastated Iraqi
society during the 1990s. is was followed by the 2003 Anglo-
American invasion and occupation of Iraq whi quily produced
an armed insurgency, a partial collapse of the state, a sectarian civil
war, and the fragmentation of the country. Several hundred
thousands of Iraqis were killed and wounded.27 A January 2016 U.N.
Report noted that violence suffered by civilians “remains staggering,”
with at least 18,800 killed between January 1, 2014 and October 31,
2015. More than 3.2 million people were displaced during the same
period.28
Syria’s story is similar with two critical differences: the war has
been of shorter duration, but its social effects have been more
devastating. Since Mar 2011, an expanding war has engulfed the
entire country producing a mass exodus whi the U.N. has called
the “worst refugee crisis since World War II.”29 e war has included
an extreme human rights crisis that is near genocidal in its
dimensions (more on this later). As the conflict entered its fih year,
two reports established that 2014 was the deadliest year of the Syrian
conflict, with 250,000 deaths and close to a million wounded, a figure
that reflects six percent of Syria’s population. During this period, life
expectancy dropped by 27 years and more than half of Syria’s 23
million population became internally displaced or fled the country as
refugees. 82 percent of Syrians now live in poverty.30
214
One comprehensive U.N. report noted that the “future growth of
the Syrian economy has been compromised by the systematic
collapse and destruction of its economic foundations as its
infrastructure and institutions, human and physical capital, as well
as the wealth of the nation [have] been obliterated.”31 e future
viability of Syria as a cohesive nation-state is now in question.
e Internal Displacement Monitoring Center noted that as of
2015, Syria and Iraq have the largest number of displaced people in
the world. Collectively, 14 million people have been forced to flee
their homes. “One thing is clear: the situation in the region has
become uerly unsustainable,” observed António Guterres, the
United Nations High Commissioner for Refugees. He called this
crisis “a cancer that risks spreading and metastasizing.”32
It is precisely for these reasons of state breakdown and collapse,
that ISIS has been able to establish its state in parts of Syria and Iraq
and not in other parts of the Islamic world. Iraq and Syria are unique
in the sense that these states have been most adversely affected by
the twin legacies of political authoritarianism and the consequences
that flow from war and state collapse, thus creating a vacuum that
has been filled by radical Islamism.
e political illegitimacy of the state in Iraq and Syria has also
exacerbated these trends. e sectarian policies of the ruling regimes
in Baghdad and Damascus have alienated Sunni communities,
allowing ISIS to exploit their grievances to generate support and
claim the mantle of leadership among persecuted Sunni populations.
In the case of Iraq, Nuri al-Maliki’s government exploited a de-
Ba`athification law to marginalize and discriminate against Sunni
politicians. His majoritarian and authoritarian style of rule as prime
minister (2006–14) exacerbated communal tensions and bred Sunni
alienation whi ISIS successfully exploited. Peaceful protests by
Iraqi Sunnis were repressed. One example was the Al-Hawija
massacre on April 23, 2013 that killed 50 people and injured over 100,
enflaming Sunni public opinion across Iraq.33
215
In the case of Syria, the problem is measurably mu worse. e
House of Assad has been in power for more than 45 years. In
contrast to Iraq, no elections are held, and there is neither a free
press nor a functioning civil society. e key positions of power and
the senior officer corps are staffed by Assad loyalists, many of them
from the same Alawite minority as Bashar al-Assad. Aer the 2011
Syrian uprising, the base of support of the Syrian regime narrowed
to a core Alawite constituency, enhancing the perception among 70
percent of Syrians who are Sunni that Assad’s minority-led regime is
willing to retain power at all costs. Strong regional support from Iran
and Hezbollah to sustain the Assad regime has only deepened this
conviction.
Summarizing the connection between Sunni alienation and an
affinity for ISIS, the New York Times astutely observed that by “employing a mix of persuasion and violence” ISIS has expanded its
influence in the Arab world. It has been able to
present itself as the sole guardian of Sunni interests in a vast territory cuing across
Iraq and Syria. Ideologically unified, the Islamic State is emerging as a social and
political movement in many Sunni areas, filling a void in the absence of solid national
identity and security.
In the face of highly sectarian regimes, “some Sunnis [are] willing to
tolerate the Islamic State in areas where they la another defender,
especially in conservative communities like the ones in western Iraq
and eastern Syria, where the group is strongest.” According to one
analyst, as a result of the spread of sectarianism in the region,
“under the skin of every single Sunni there is a tiny Daesh [ISIS
supporter].”34
216
Why all roads lead to Damascus
e conflict in Syria is essential to understanding the rise and
expansion of ISIS. Without it, there would be no global ISIS crisis as
we understand it today. is relationship between Syria and ISIS
highlights a key argument of this apter: the regional turmoil
plaguing the Middle East is the byproduct of a severe human rights
crisis caused by the war in Syria (now into its sixth year). Syria is
like a “geopolitical Chernobyl,” that continues to “spew radioactive
instability and extremist ideology over the entire region.”35 ese
issues are deeply interlinked and cannot be over-emphasized:
resolving the political conflict within Syria is an essential
precondition to solving the ISIS crisis.36
ISIS is connected to Syria in several important ways that are
under-appreciated in the global debate on the topic. e dominant
narrative suggests that ISIS is most deeply linked to Iraq. Most
mainstream accounts locate the origins of ISIS in its parent
organization, Al Qaeda in Iraq (AQI), founded by Abu Musab al-
Zarqawi, whi surfaced aer the 2003 US invasion and
occupation.37 is is undoubtedly true, but to leave the story here
ignores critical subsequent developments.
Aer an impressive start, by 2008, the salafi–jihadi movement in
Iraq, for whi AQI was its most extreme representative, was in
decline. By 2010, AQI was beaten down, reduced to a few hundred
core followers. Its demise was due to a combination of factors: the
indiscriminate violence that AQI unleashed on Iraqi society, an
American troop surge, the creation of the “Sunni Awakening”
(Sahwa) councils that fought against AQI, along with promises of Sunni inclusion in a Shia-dominated Iraq. By the time American
combat troops were withdrawn in 2011, most of AQI’s senior leaders
217
and field operatives were eliminated and both Abu Musab al-
Zarqawi and Obama Bin Laden had been killed.38
ese events overlapped with the Arab Spring. When the Arab
Spring began in Syria in Mar 2011, no ISIS or Al Qaeda presence
existed in Syria. Nonviolent protesters anting nonsectarian slogans
formed the bulk of the opposition to the Syrian regime, who like
their counterparts in other Arab countries, were demanding
democracy, dignity, and social justice. e Assad regime (baed by
Iran and Russia) responded with criminal brutality. As a direct
result, a set of social conditions were created that gradually
militarized a peaceful uprising and then radicalized it.39 As the
cradown continued and the violence increased to near genocidal
levels, a political and ideological vacuum ensued. It was soon filled
by salafi-jihadis, many of whom were supported by regional powers,
who benefited from the ensuing aos and devastation. Many of the
top leaders of these radical Islamists groups were deliberately
released from Assad’s prison as part of a strategy to sectarianize the
uprising and remove the global spotlight on the Assad family’s 41
year rule.40 Radical Salafism rose from the ashes of the internal
conflict in Syria and was given a new lease on life. It continues to
expand to this day.
By the end of the first year of the Syrian uprising, all leading
human rights organizations—Amnesty International, Human Rights
Wat and the U.N. Independent International Commission of
Inquiry on Syria—had arged the regime in Damascus with state-
sanctioned “war crimes” and “crimes against humanity.”41 By a wide
margin, the Assad regime has been responsible for the vast majority
of civilian deaths during the course of this war. According to the
Syrian Network for Human rights, from Mar 2011 to October 2015,
regime forces were responsible for 96 percent of civilian deaths; ISIS
was responsible for approximately one percent.42 As the conflict
continued and deepened, the U.N. High Commissioner for Human
Rights, Navi Pillay, repeatedly called on the U.N. Security Council to
218
refer the Assad regime to the International Criminal Court; a move
bloed by Russia and China. During this time, the U.N. Secretary-
General Ban Ki-moon issued repeated global warnings that “Syria is
now the biggest humanitarian and peace and security crisis facing
the world.”43 e human rights catastrophe that has engulfed Syria
worsens with every passing year. Syria is the primary moral and
humanitarian catastrophe of the twenty-first century.
is conflict has produced the world’s worst refugee crisis since
World War II, a emical weapons crisis, a rape crisis, a health crisis,
a hunger crisis, a torture crisis, a cultural heritage crisis—and, as a
consequence of all the foregoing—an ISIS crisis. ese quasi-
genocidal conditions have created a fertile soil for the rebirth and
expansion of radical Islamist militancy in the heart of the Arab
world.44
ISIS is connected to Syria in other distinct ways that tie their
futures together. According to US intelligence, two-thirds of ISIS’
military assets are located in Syria.45 Were ISIS to be defeated in
Iraq, it could entren itself in eastern Syria where it feeds off local
support and where no local military force or bombing campaign can
easily dislodge it. e Syrian town of Raqqa is the de facto capital of
ISIS. Most executions of foreign hostages have taken place in Syria.
ISIS was reborn in Syria; its future will be determined in Syria.
e argument that the conflict could be ‘contained’ within Syria’s
borders is easily exposed now as a fallacy. From the start, the
question of how the international community should respond to
Syria led to divisive debate. e prominent American international
relations theorist and foreign policy analyst John Mearsheimer,
invoking realpolitik arguments, argued that the conflict in Syria did
not affect core strategic interests of the West and was of “lile
importance for American security.”46 e 2015 ISIS-inspired terror
aas in three NATO countries (in the cities of Paris, San
Bernardino and Ankara), and the wave of ISIS-related aas in
219
early 2016 in Jakarta, Istanbul, Baghdad, Philadelphia, and Burkina
Faso suggest otherwise.
Similarly, Stephen Walt has argued publicly that the quiest way
of ending the conflict would be for the Syrian people to surrender to
the Assad regime.
What may be best for the Syrian people in terms of ending human suffering is to say [to
them] we are not going to drive him from power … but that ultimately if what you
want is fewer people dying … you might have to anowledge that he will remain in
power. … is is at least a possibility we will have to begin to reconcile ourselves to.47
Walt’s proposal is undoubtedly correct, but only in the same sense
that the conflicts in Rwanda and Bosnia twenty years earlier could
have been ended sooner if opposition forces surrendered to the Hutu
and Serbian governments. e Obama Administration, informed by
the legacy of the Iraq invasion, has been persuaded by these
arguments.48
Syria clearly demonstrates, as Bosnia did twenty years earlier, that
wars whi involve massive human rights violations on a near
genocidal scale cannot be contained or ignored. eir destabilizing
affects eventually pose a direct threat to international peace and
security. In an age of globalization, the ripple effects are felt around
the world.
None of this “was inevitable,” observes Rania Abouzeid in her
forensic investigation on the rise and expansion of ISIS.
e Syrian revolution—and the hesitant, confused international reaction to it—paved the
way for the resurrection of a militant Islam that would turn vast regions of Iraq and
Syria into borderless jihadi strongholds and in closer to redrawing the map of the
Middle East.49
e airperson of the U.N. Independent International Commission
of Inquiry on Syria, the distinguished jurist Paulo Sérgio Pinheiro,
similarly observed that the inaction of the international community
“nourished the violence” consuming Syria and “its most recent
beneficiary [has been] ISIS.”50
220
e crushing of the Arab Spring and the rise
of ISIS
ere is a longstanding and widely recognized inverse relationship
between democratic societies and violence. e more that
democracy advances, in the form of political accountability, public
transparency and the peaceful transfer of power, the less the
likelihood of violence. is is a variation of the famous democratic
peace theory that recognizes that democratic societies are more
internally peaceful and less likely to go to war than their non-
democratic counterparts.51 is theory is pertinent to understanding
the rise of ISIS.
Observing the general turmoil in the Middle East today, it is easy
to forget that a few years ago, the region looked quite different. e
2011 Arab Spring brought hope to people of the region. Starting in
North Africa and moving in qui succession across the Middle East,
pro-democracy revolts swept three longstanding dictators from
power and came close to removing another two. e Arab Spring
shook the foundations of Middle Eastern authoritarianism while
capturing the imagination of the entire world.
Al Qaeda’s response to the Arab Spring was revealing. It was
shoed by a turn of events that produced ideological confusion and
organizational incoherency. In an important study, Jihadi Discourse
in the Wake of the Arab Spring,52 the authors note that during the Arab Spring salafi-jihadi groups were both impotent and unpopular.
e reasons for this are self-evident. For a moment it appeared that
political ange could be aieved via peaceful protest rather than
violent revolution. is undermined one of the central ideological
claims of Al Qaeda whi had long argued that dictators could only
be removed via armed struggle; democratic elections and nonviolent
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protests could never work. As Ayman Al-Zawahiri put it: “What is
truly regreable is the rallying of thousands of duped Muslim youth
in voter queues before ballot boxes instead of lining them up to fight
in the cause of Allah.”53 As a result, the ideological appeal of Islamic
militancy during this period fell precipitously throughout the Arab-
Islamic world.
e Arab Spring was rolled ba due to a counter-revolution led
by the previous ruling elites, the deep state, and its regional allies
(primarily Saudi Arabia and the United Arab Emirates).54 e
promise of peaceful political ange and the door to democratization
was slammed shut. As a direct result, there was an increase in
violence and extremism across the region. is demonstrates another
important relationship that is central to the politics of the Middle
East: when democratic openings are closed and moderate forms of
political Islam are crushed, radical Islam thrives as a consequence.
e case of Egypt aer the 2013 military coup demonstrates this
point.
General Abdel Faah El-Sisi came to power by toppling Egypt’s
first democratically elected President, Mohammad Morsi. e
badrop to his seizure of power was an orgy of violence that
Human Rights Wat described as a “likely crime against humanity”
and “what may have been the worst single-day killing of protesters
in modern history.”55 e reference is to the Rab`a al-adawiya
massacre on August 14, 2013 that killed 1000 people in downtown
Cairo in a few hours. ese events unofficially brought an end to the
Egyptian democratization process that began with the ouster of
Hosni Mubarak in February 2011. Since then, there has been a
significant rise in violence and political extremism across the
country.
In the twenty-two month period since Egypt’s July 2013 coup,
there have been more than 700 aas across Egypt compared to 90
aas in the previous twenty-two months. Human Rights Wat
has reported a figure of 41,000 political prisoners (mostly members of
222
the Muslim Brotherhood), many of whom have been tortured.
According to Amnesty International, Egypt issued 509 death
sentences in 2014, the second highest number in the world.56
e number of young people radicalized by these events is
difficult to measure. To the extent that anecdotal evidence, media
reports, and trends on social media are a reflection of this tendency,
it is accurate to state that Egypt has become a breeding ground for
radical Islamism. Marc Lyn has argued that, notwithstanding the
Muslim Brotherhood’s social conservatism and illiberalism,
historically they performed an important role as a “firewall against
extremism.”57 A politically active Egyptian with a religious identity
could find expression in the public sphere by joining the Muslim
Brotherhood and participating in electoral politics. Since the coup
and the aempt to eradicate the Muslim Brotherhood, this option no
longer exists. e two oices that remain for Egyptian youth are: 1)
to remain silent and accept the current neofascist order, or 2) to
contemplate joining a utopian revolutionary political project su as
ISIS. ere is no third alternative.58 Tales from Egypt’s notorious
prison system confirm this argument.
Mohammad Soltan, an Egyptian-American, was twenty-five years
old when he was arrested in the summer of 2013. He spent twenty-
one months in jail; during sixteen of these months, Soltan was on a
hunger strike. He lost 160 pounds, risking organ failure. When he
emerged from prison he could not walk. In a special New York Times profile, he discussed the torture and brutality he faced but also
revealed details of the internal political debates among prisoners;
several of his cellmates were ISIS supporters.59
“ey walked around with a victorious air,” he recalled. ey
would frequently point to supporters of the Muslim Brotherhood
and state: “look, you idiots, your model doesn’t work.” e ISIS
supporters would then proceed to “make very simple arguments
telling us that the world doesn’t care about [democratic] values and
only understands violence.” He also noted that because “of the
223
gravity of the situation [we] were all in, by the time the ISIS guys
were finished speaking, everyone, the liberals, the Brotherhood
people, would be le completely speeless. When you’re in that
type of situation and don’t have many options le, for some people
these kinds of ideas start to make sense.”60
Tunisia, the one Arab Spring country that did undergo a
successful democratic transition, provides an alternative model to
that of Egypt. Raed Ghannoui, the leader of Ennahda, has
observed that the “only way to truly defeat ISIS is to offer a beer
product to the millions of young Muslims in the world.” It is called
“Muslim democracy.” He noted that that most “young people don’t
like ISIS—see how many millions flee from it—but they won’t accept
life under tyrants either.” is “beer product” must be a political
system that is democratic, that respects human rights, and that gives
Islamic values political space.61
It is not a coincidence that ISIS emerged and aracted followers
aer the crushing of the Arab Spring, highlighting the relationship
between democratization and violence. e simplest formulation of
this insight into modern politics was perhaps best articulated by
John F. Kennedy in 1962: “ose who make peaceful revolution
impossible will make violent revolution inevitable.”62
224
e political theology of ISIS
A significant part of the ISIS crisis is related to the development and
mainstreaming of a particular Sunni interpretation of Islam. is
interpretation is deeply sectarian, misogynistic, authoritarian,
intolerant, anti-democratic, puritanical, ultraconservative and most
importantly—it legitimates the use of violence against others,
particularly fellow Muslims. is brand of Islam has a specific
intellectual genealogy and political history, including a history of
collusion with Western powers, whi has not received sufficient
aention in the global debate on ISIS. Any comprehensive
understanding of the ISIS crisis would be incomplete without
examining this dimension of the problem.
Khaled Abou El Fadl has described this phenomenon as the “rise
of the culture of ugliness in modern Islam.” In the context of Islam’s
1400 year history, it is a recent development but it has obtained a
critical mass, sinking deep roots in Muslim societies in the laer half
of the twentieth century. Its spread has had a corrosive effect on
Muslim communities and it “continues to be the single most
important obstacle to articulating reasonable narratives of legitimate
possibilities of Islam’s contribution to human goodness.”63 e
dissemination and proliferation of this intolerant interpretation of
Islam can be traced to the heart of the Arab-Islamic world and is
linked to the internal policies of the Kingdom of Saudi Arabia and
the rise of Wahhabism.
Wahhabism, is a puritanical interpretation of Islam associated
with the teaings of the eighteenth century evangelist Muhammad
bin ‘Abd al-Wahhab (d.1792). Concerned with the decline of Islamic
civilization, he developed a theology that was a reflection of the
austere desert surroundings he came from, the Najd region of central
225
Arabia. e galvanizing power of his message was rooted in an
uncompromising belief that the moral renewal of Islam could only
take place by the cleansing of kufr (unbelief) from the ummah
(Islamic community).64
His analysis of the problem of civilizational decline was that
Muslims have forgoen God and the unity of his message (tawheed) because of the reliance on heretical innovations and the infiltration
of corrupt rituals and beliefs associated with Shiism, Sufism, and
other deviant Sunni practices. His writings rejected mu of the
classic Islamic jurisprudential tradition and the plurality of sools
of thought connected to this tradition. Orthodoxy was narrowly
defined in pursuit of an absolutist and insular reading of Islam.
Ibn ‘Abd al-Wahhab demonstrated hostility toward all forms
rationalism and intellectual thought. He viewed fields of knowledge
related to the humanities, especially philosophy, as a unique
corruption connected to “the sciences of the devil.”65 Most forms of
human creativity and artistic expression su as music were
repudiated. He also preaed hostility toward non-Muslims, who
should never be befriended or taken as allies. Arguably his most
destructive teaing was the promotion of the practice of takfir— accusing another Muslim of apostasy, thereby sanctioning violence
against her or him.
In justifying takfir, Ibn ‘Abd al-Wahhab developed a methodology that was to be emulated by radical Islamist groups in the late
twentieth and early twenty-first centuries. He would scour “the vast
annals of the [Islamic] tradition in sear of cruel anti-humanistic
reports that have long been dead and then rehabilitat[ed], [spread],
and empower[ed] them so that they [could] justify the commission
of acts of ugliness.”66 is would give these acts of violence an aura
of Islamic authenticity and sanctity that ordinary Muslims, unversed
in the details of their religious tradition, would find difficult to
repudiate.
226
Ibn ‘Abd al-Wahhab’s views would have remained marginal were
it not for several critical developments that allowed them to expand
globally. e first issue is the overaring allenge of modernity
facing Muslims in the late nineteenth century in terms of the rise of
the West, especially the intellectual, moral, and political issues
associated with this allenge. is produced a variety of responses
both radical and reformist, and staunly secular or traditionally
conservative.67 Within this context, a Salafist theological orientation
emerged.
At its inception in the late-nineteenth century, Salafism was a
broad reformist intellectual response that sought to negotiate the
tensions between tradition and modernity by going ba to the
origins of Islam for inspiration and answers. Specifically, it elevated
the moral example of the early Muslim community (al-salaf al-salih) as one to be emulated in order to meet modern allenges. In this
sense, all Muslims are Salafists by default, given the central
importance of the life of the Prophet Muhammad and the early
Muslim community for believers. During the mid-twentieth century,
however, Salafism moved in a more conservative direction and
gradually became infused with Wahhabism in part because of the
methodological similarity between these two currents of thought.
Today the two are synonymous terms. e core aracteristics of
Salafism include: (1) an emphasis on the purity of the early Muslim
community and a rejection of anything that came aerward in
Islamic history; (2) an obsession with the problem of shirk (polytheism) that has allegedly infused itself into Muslim societies
due to rituals and practices that are innovations (bid`a) that must be purged; and (3), a sincere belief that the r`an and the traditions of
the Prophet Muhammad (sunnah) are clear in meaning and possess
the answers for every conceivable circumstance.68
e second development that guaranteed the survival of
Wahhabism was its embrace by Muhammad Ibn Saud, a local tribal
ief who lived in the late eighteenth century. is produced a
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religious-political movement that gradually subdued the other tribes
of the Arabian peninsula and formed the foundations of the social
contract that shaped the modern state of Saudi Arabia.69 e House
of Saud supplied the military muscle, while Wahhabism provided the
underlying ideology. In areas where they expanded during the
nineteenth and twentieth centuries, the Wahhabis would engage in
extreme acts of brutality that shoed local Muslims. Public
floggings for crimes su as listening to music, shaving their beards,
wearing silk or gold (for men), smoking, playing ess, bagammon
or cards or failing to uphold strict rules of gender segregation were
common. All shrines and most historical monuments in Arabia were
also destroyed.70 ese practices, justified in the name of a literalist
reading of Islam, would have been limited to the Arabian peninsula
had it not been for another critical development—the discovery of
oil.
e marriage of Saudi petrodollars to Wahhabi Islam gave this
specific ideological orientation a global rea. Muslim societies
around the world were affected through the financing of mosques,
the dissemination of Wahhabist literature, and the provision of
generous solarships for the training of imams in Saudi Arabia.
Billions of dollars were poured into this endeavor. Aer the 1979
Iranian Revolution, more funds were invested to undermine Iran’s
revolutionary appeal. e Wikileaks documents “indicate an
extensive apparatus inside the Saudi government dedicated to
missionary activity that brings in officials from the Foreign, Interior
and Islamic Affairs Ministries, the intelligence service and the office
of the king.” Projects that have been funded include “puing foreign
preaers on the Saudi payroll, building mosques, sools and study
centers, and undermining foreign officials and news media deemed
threatening to the kingdom’s agenda.” 71
e consequences of these policies le their mark on Muslim
societies. As Saudi Arabia emerged as a major regional power and
oil exporter baed by Western powers, the pluralism and relative
228
tolerance that once existed in Muslims societies were gradually
undermined as Saudi funding extended Wahhabi influences across
the Muslim world. Existing tensions related to problems of
development, modernity and identity were exacerbated. A rise in
sectarianism was one result of these policies.
Arguably, the most toxic effect of Wahhabism has been the
mainstreaming of a puritanical interpretation of Islam masquerading
as normative Islam by hijaing the symbols of Islamic authenticity
and legitimacy. Commenting on the global spread of Wahhabism,
Khaled Abou El Fadl observes:
Today nearly all of the issues and problematics that interested and pre-occupied
Wahhabi theology and thought have been injected into the Muslim mainstream, and in
fact, have come to permeate Muslim social interactions and debates. What were at one
time considered imprudent fixations upon minutiae marginal to the faith by an
intemperate group of Bedouins now [have] become at the center of Muslim debates.72
e radicalization of Muslim youth today and the use of violence in
the name of religion also have direct Wahhabi links. Several of the
most dramatic acts of terrorism in the West in recent years illustrate
this point. Consider the 2013 Boston Marathon Bombing. e
perpetrators of this crime were Tamerlane and Dzhokhar Tsarnaev,
young men from the Dagestan/Chenya region of the northern
Caucasus. Aer the breakup of the Soviet Union, religion was freed
from state control and a new Salafist-Wahhabi interpretation of
Islam, baed by Saudi Arabia, moved in to fill the void. On a trip
ba to Dagestan in early 2012, Tamerlane Tsarnaev was reportedly
radicalized. Among his favorite videos on Youtube, for example, was
one that denounced Dagestan’s traditional Sufi interpretation of
Islam in favor of the more hardline Salafist interpretation that had
arrived on the scene.73
e 2015 Paris aas also have drawn aention to the problem of
radicalization in Muslim immigrant communities. Belgium has
featured prominently in this story and according to an investigation
229
by The Independent, some “of the answers may lie in the implanting
of Saudi Salafist preaers in the country from the 1960s.”74
In 1967, keen to secure oil contracts, the Belgian government
hosted the King of Saudi Arabia. Part of the expansion of relations
included the establishment of mosques and the hiring of Gulf-
trained clerics. is coincided with the arrival of North African and
Turkish workers whose main places of worship were these Saudi-
supported mosques. “e Moroccan community … comes from the
Maliki sool of Islam, and are a lot more tolerant and open than the
Muslims from other regions like Saudi Arabia,” noted George
Dallemagne, a Belgian member of parliament. “However, many of
them were re-Islamified by the Salafist clerics and teaers … Some
Moroccans were even given solarships to study in Medina, in
Saudi Arabia.”
Mr. Dallemagne says these Salafist clerics have been a huge
obstacle to the integration of Moroccan immigrants. He observed
that:
We like to think Saudi Arabia is an ally and friend, but the Saudis are always engaged
in double-talk: they want an alliance with the West when it comes to fighting Shias in
Iran, but nonetheless have a conquering ideology when it comes to their religion in the
rest of the world.
A Wikileaks document confirmed this story:
[It] revealed that a staff member of the Saudi embassy in Belgium was expelled years
ago over his active role in spreading the extreme so-called Takfiri dogma. e cable—
between the Saudi King and his Home Minister—referred to Belgian demands that the
… Saudi director, Khalid Alabri, should leave the country, saying that his messages were
far too extreme.75
A similar story can be told about the December 2015 terrorist aa
in San Bernardino, California. e assailants, Syed Rizwan Farook
and Tashfeen Malik, had Saudi connections. Not only did the couple
meet and marry in Saudi Arabia, but press reports reveal that the
Malik family, aer moving to Saudi Arabia when Tashfeen was a
230
toddler, internalized a Wahhabi form of Islam that led to an
estrangement with their family ba in Pakistan. “From what we
heard, they lived differently, their mindset is different. We are from a
land of Sufi saints … this is very shoing for us,” said soolteaer
Hifza Bibi, the step-sister of Malik’s father.76 People who knew the
family claim that, “aer some years in Saudi Arabia, Ms. Malik’s
father, Gulzar, rejected the more tolerant Barelvi sool of Sunni
Islam that his family had traditionally practiced, and turned to the
stricter (neo-Wahhabi) Deobandi sool.” Family ties were broken as
a result. “‘ere was a lot of friction within the whole family as they
adhered to different sects,’ said Zahid Gishkori, a journalist based in
Islamabad who is from the same district as the family.”77 When
Tashfeen Malik returned to Pakistan to study pharmacy, she earned
a reputation as that ‘Saudi girl’ from sool administrators who
noted she had troubling fiing in due to her strict practice of
Wahhabi Islam.78
231
ISIS and Saudi Arabia compared
In the summer of 2014, ISIS caught the aention of the world as they
captured the city of Mosul. Soon aerward, the public beheadings of
five foreign hostages took place in qui succession and were
broadcast on social media. e story dominated headlines for weeks.
Unbeknownst to most people, however, was that during the same
period in Saudi Arabia, nineteen people were beheaded.79 No
Western government issued a protest. According to Amnesty
International, this was part of a trend in Saudi executions that had
reaed a 20-year high by the end of 2015. Saudi Arabia began the
year 2016 with a mass execution of 47 prisoners, including a
prominent Shia cleric, drawing further rebuke from human rights
groups.80 e behavioral similarities between Saudi Arabia and ISIS
run deep.
On December 16, 2014, ISIS issued a communiqué listing
punishments that would now be enforced in Islamic State territory.
It justified these punishments by invoking a traditional
interpretation of hudud provisions stipulated in Islamic law. e crimes and punishment list included: treason (death), homosexuality
(death), the (amputation of hand), adultery (death by stoning),
murder, treason and blasphemy (death), and so on.81 is is nearly
identical to the crime and punishment provisions routinely
implemented in Saudi Arabia.82
When ISIS needed textbooks for its sool curricula, it
downloaded books from the Ministry of Education in Saudi Arabia.
Wahhabi texts were a perfect ideological mat for its theology
given the shared Salafist theological bases between the two political
entities. A study that followed Saudi twier conversations on the
topic reported statements that confirmed that this symmetry was
232
“normal” because as one person noted “all our life we have lived
with [ISIS] and its thoughts, its sools and its curriculum.” Adil al-
Kalbani, a Wahhabi cleric, who had led prayers as an Imam at the
Holy Shrine in Mecca, stated that “[ISIS] is a Salafi [fundamentalist]
offshoot … a reality we should confront with transparency.”
Commenting on this admission, Abu Hamza al-Masa`ary added that
ISIS is the fruit of “the tree of Wah[h]abi preaing.”83
Notwithstanding these shared theological underpinnings, there is
a critical difference that sets ISIS apart from Saudi Arabia. e
Salafist strain of Wahhabism preaed in Saudi Arabia promotes
obedience to the monary while the ISIS’ version rejects this notion
and seeks to topple existing political regimes and replace them with
a Caliphate. is poses a deep political dilemma for the future of
Saudi Arabia. e House of Saud “now has a foe that is so close it its
own religious interpretation of Islam, that Saudi Arabia cannot be
seen to be fighting ISIS very strongly because it would undermine its
authority at home.”84
Proof of this ISIS–Saudi connection has been produced in a
Brookings Institution study. Based on a sample size of 20,000, the
report concluded that ISIS supporters on Twier disproportionately
come from Saudi Arabia.85 Saudi Arabia also tops the list of foreign
fighters who have joined this organization, and Saudi fighters have
undertaken many of the suicide operations in ISIS-controlled
territory as well.86
In summary, reflecting on the impact of Wahhabism on Muslim
societies today, Khaled Abou El Fadl concludes that because of its
“puritanical and idealized, and thoroughly mythologized, view of the
past, the Wahhabi orientation cannot reconcile between its
understanding of this idealized view of the past and the complexity
and diversity of cultures” that constitute our modern world. e
final result is that “Wahhabi influence has added a dimension of
oppressiveness and vehemence to contemporary Muslim life that
frequently borders on the morbid.”87
233
Karen Armstrong reaes a similar conclusion. She notes that a
whole generation of Muslims, therefore, [have] grown up with a maveri form of Islam
that has given them a negative view of other faiths and an intolerantly sectarian
understanding of their own. While not extremist per se, this is an outlook in whi
radicalism can develop.88
And it has. If you are a young Muslim in Karai, Cairo, Toronto, or
London today, keen on connecting with your religious heritage, the
likelihood of exposure to a Wahhabi-influenced version of Islam is
high. Conversely, the possibility of exposure to an ethical and
humanistic interpretation of Islam, a form that dominated most of
Islamic history allowing it to expand and aract new followers, is
low. Part of the allenge of combating ISIS is to reverse this
equation.
234
Conclusion
e ISIS crisis is a manifestation of the broken politics of the Middle
East. ese broken politics are a direct result of an ongoing series of
human rights crises and democracy-deficits that have plagued the
region for decades. ese social and political conditions have
contributed to the rise and expansion of radical Islamist
insurgencies, of whi ISIS is the most recent iteration.
In this context, Iraq and Syria are unique. Among the 22 members
of the Arab League, these two countries have been most adversely
affected by the consequences that flow from political despotism, war,
and state collapse. It is precisely for these reasons that ISIS was able
to set up its “Islamic state” in this specific part of the Islamic world
and not in other regions.
e war in Syria, now into its sixth year, has been a key
contributing factor in the rise of ISIS. Without a resolution of this
war, it is difficult to envision an end to the ISIS crisis. us, it is in
this sense that all roads lead to Damascus. ISIS was reconstituted in
the context of the horrors of the Syrian war, and its ultimate fate will
be determined in Syria.
But ISIS also has intellectual and theological roots that can be
traced ba to a specific part of the Arab-Islamic world—the
Kingdom of Saudi Arabia. e cultivation of a specific puritanical
interpretation of Sunni Islam, known as Wahhabism, by the Saudi
state is a core feature of the ISIS crisis that is oen ignored. We are
witnessing today the consequences of the promulgation and
mainstreaming of Wahhabi Islam on a global scale. Masquerading as
normative Islam, this ultraconservative interpretation of religion has
produced an ethical crisis in Muslim societies that has been
exacerbated by the Middle East’s broken politics. Exposure to more
235
humanistic interpretations of Islam could have could limited ISIS’
rea. Young Muslims frustrated by the dire social conditions of
their societies have anneled their anger and frustration into
Wahhabi Islam, whi claims to provide utopian solutions to the
problems of the modern world. Rising Islamophobia in the West and
the double standards of Western foreign policy, particularly with
regard to the Israel-Palestine conflict, has allowed religious
extremism to flourish.
e crisis now facing the Arab-Islamic world was to be expected.
Sixteen years ago, a series of U.N. Arab Human Development
Reports, wrien by a team of leading Arab social scientists, forecast
and predicted the deep crisis facing the region while hinting at a
coming political explosion.
e Arab Human Development Report 2002: Creating Opportunities for Future Generations observed that the Arab world was at a crossroads. “e region is hampered by three key deficits
that can be considered defining features: the freedom deficit; the
women’s empowerment deficit [and] the human
capabilities/knowledge deficit relative to income.” Compared with
the rest of the world,
e Arab Countries had the lowest freedom score in the 1990s and when measured by
indicators su as political process, civil liberties, political rights and a free media the
Arab region … [had] the lowest value of all regions of the world for voice and
accountability.89
In terms of the status of women, “applying the UNDP gender
empowerment measure (GEM) to Arab countries [revealed] that the
laer suffer[ed] a glaring deficit in women’s empowerment. Among
the regions of the world, the Arab region ranks next to last as
measured by GEM; only sub-Saharan Africa has a lower score.”90
e Arab Human Development Report 2004: Towards Freedom in the Arab World, focused on the themes of good governance, political reform, and civil liberties. It concluded that political and civil rights,
236
popular participation, representative institutions, the political
accountability of leadership, the rule of law, the equal treatment of
citizens and the existence of an independent judiciary, were all in
short supply. As a result, the “Arab development crisis has widened,
deepened and grown more complex.”91 Its main beneficiary has been
religious extremism.
One day ISIS might be defeated militarily. But as long as the social
conditions that gave rise to ISIS remain in place, future instability
and violence can be expected. As the journalist and public
intellectual Rami Khouri has presciently observed:
ere is only one antidote in the long run to eliminating the Islamic State and all it
represents. at is to stop pursuing the abusive and criminal policies that have
demeaned millions of decent Arab men and women and shaped Arab countries for the
past half a century. Bombing Iraq and Syria will gain some time and probably must
happen in combination with serious military action by local Arab and Kurdish forces.
However, if the ways of the corrupt modern Arab security state is not radically
reversed, the mass desperation and hysteria that the Islamic State represents will only
re-emerge again in more extreme forms, in the years to come.92
237
Notes
1 For a succinct baground see Charles Lister, The Islamic State: A Brief Introduction
(Washington DC: Brookings Institution, 2015); William McCants, The ISIS Apocalypse:
The History, Strategy, and Doomsday Vision of the Islamic State (New York: St. Martin’s
Press, 2015); and Fawaz Gerges, ISIS: A History (Princeton: Princeton University Press,
2016).
2 Malcolm Kerr, The Arab Cold War: Gamal ‘Abd al-Nasir and His Rivals, 1958–1970
(London: Oxford University Press, 1971) and Majid Khadurri and Edmund Ghareeb,
War in the Gulf, 1990–1991: The Iraq-Kuwait Conflict and its Implications (New York:
Oxford University Press, 2001).
3 Yezid Sayigh (2014) “Are the Sykes-Picot Borders Being Redrawn?” Carnegie Middle East
Center, June 26, 2014, hp://carnegie-mec.org/publications/?fa=56007 (accessed
September 4, 2016).
4 Rukmini Callimai, “ISIS Enshrines a eology of Rape,” New York Times, August 13,
2015; Ni Cumming-Bruce, “United Nations Investigators Accuse ISIS of Genocide over
Aas on Yazidis,” New York Times, Mar 19, 2015; United Nation Human Rights
Council, “Report of the Office of the United Nations High Commissioner for Human
Rights on the human rights situation in Iraq in the light of abuses commied by the so-
called Islamic State in Iraq and the Levant and associated groups,” Mar 13, 2015,
A/HCR/28/18.
5 U.S. State Department, “e Global Coalition to Counter ISIL,” www.state.gov/s/seci/
(accessed September 4, 2016).
6 Eric Smi and Miael R. Gordon, “U.S. Aims to Put More Pressure on ISIS in Syria,”
New York Times, October 4, 2015. Military figures from August 8, 2014 to November 30,
2015 from U.S. Department of Defense, “Operation Inherent Resolve,”
www.defense.gov/News/Special-Reports/0814_Inherent-Resolve (accessed September 4,
2016).
238
7 Karen Yourish, Derek Watkins, Tom Giratikanon, “Where ISIS Has Directed and Inspired
Aas Around the World,” New York Times, August 20, 2015,
www.nytimes.com/interactive/2015/06/17/world/middleeast/map-isis-aas-around-
the-world.html and Ash Gallagher, “IS Growing in numbers, money,” Al Monitor, June
8, 2015, www.al-monitor.com/pulse/originals/2015/06/islamic-state-expand-influence-
africa-iraq-syria.html?utm_source=Al- and e Soufan Group, Foreign Fighters: An
Update Assessment of the Flow of Foreign Fighters into Iraq and Syria, December 2015,
hp://soufangroup.com/wp-content/uploads/2015/12/TSG_ForeignFightersUpdate1.pdf
(accessed September 4, 2016).
8 Gretel Kauffman, “FBI Director: Why ISIS is a Bigger reat to the US than Al Qaeda,”
Christian Science Monitor, July 23, 2015, www.csmonitor.com/USA/USA-
Update/2015/0723/FBI-Director-Why-ISIS-is-a-bigger-threat-to-the-US-than-Al-Qaeda-
video (accessed September 4, 2016).
9 Aaron Mehta, “Odierno: ISIS Fight Will Last ‘10 to 20 Years’,”
www.defensenews.com/story/defense/2015/07/17/odierno-isis-fight-last-10-20-
years/30295949/ (accessed September 4, 2016); Susan Page, “Panea: ‘30-Year War’ and
Leadership Test for Obama,” USA Today, October 6, 2014,
www.usatoday.com/story/news/politics/2014/10/06/leon-panea-memoir-worthy-
fights/16737615/ (accessed September 4, 2016) and Stephen Castle, “Tunisia Aa Will
Get ‘Full Spectrum’ Response, British Leader Vows,” New York Times, June 29, 2015
(accessed September 4, 2016).
10 CNN Documentary, The Long Road to Hell: America in Iraq, October 26, 2015,
www.cnn.com/TRANSCRIPTS/1510/26/csr.01.html. He also observed that: “Islam never
experienced something akin to the Reformation in Europe; the lines between the sacred
and the secular are unclear and contested.” See Riard Haass, “e Next irty Years
War,” Project Syndicate, July 21, 2014, www.project-syndicate.org/commentary/riard-
n–haass-argues-that-the-middleeast-is-less-a-problem-to-be-solved-than-a-condition-
to-be-managed#YctL2boFJBv61EjZ.99 (accessed September 4, 2016).
11 “Statement by the President on Syria,” August 31, 2013 and “Remarks of President Bara
Obama – State of the Union Address,” January 12, 2016. Both are available at:
www.whitehouse.gov (accessed September 4, 2016).
239
12 Ezi Basaran, “Former CIA officer says US policies helped create IS,” Al Monitor,
September 2, 2014, www.al-monitor.com/pulse/politics/2014/09/turkey-usa-iraq-syria-
isis-fuller.html#ixzz3wrjQVDyG (accessed September 4, 2016).
13 See the annual reports by Freedom House, hps://freedomhouse.org/reports (accessed
September 4, 2016).
14 S.V.R. Nasr, “European Colonialism and the Emergence of Modern Muslim States,” in
John Esposito ed., The Oxford History of Islam (New York: Oxford University Press,
1999), 549–600.
15 Rex Brynen, Bahgat Korany and Paul Noble, “eoretical Perspectives on Arab
Liberalization and Democratization,” in Rex Brynen, Bahgat Korany and Paul Noble eds,
Political Liberalization & Democratization in the Arab World, Volume 1 (Boulder:
Lynne Rienner, 1995), 3–27; Alfred Stepan and Graeme B. Robertson, “An ‘Arab’ More
an a ‘Muslim’ Democracy Gap,” Journal of Democracy 14 (2003), 30–44; Eva Bellin,
“e Robustness of Authoritarianism in the Middle East: Exceptionalism in
Comparative Perspective,” Comparative Politics 36 (January 2004), 139–157; Larry
Diamond, “Why Are ere No Arab Democracies?” Journal of Democracy 21 (January
2010), 93–104.
16 Eqbal Ahmad, “e Neofascist State: Notes on the Pathology of Power in the ird
World,” in Carollee Bengelsdorf, Margaret Cerullo, and Yogesh Chandrani eds, The
Selected Writings of Eqbal Ahmad (New York: Columbia University Press, 2006), 142.
17 Ibid., 143.
18 Ibid., 146.
19 Libya under Qaddafi and Tunisia under Ben Ali would also fit this description. For more
on the general theme of authoritarian regimes in the Arab World, see Roger Owen,
State, Power and Politics in the Making of the Modern Middle East, 3rd edition (New
York: Routledge, 2004), 22–78.
20 Human Rights Wat, Genocide in Iraq: The Anfal Campaign against the Kurd, July
1993, www.hrw.org/reports/1993/iraqanfal/ANFALINT.htm.
21 Statement by Max van der Stoel, Special Rapporteur for the United Nations on Iraq
before the U.N. Human Rights Commission on Mar 2, 1993. Cited by Kanan Makiya,
240
Republic of Fear: The Politics of Modern Iraq, updated edition (Berkeley, CA: University
of California Press, 1998), xiii. Also see Kevin M. Woods, David D. Palkki and Mark E.
Stout eds, The Saddam Tapes: The Inner Workings of a Tyrant’s Regime 1978–2001
(Cambridge: Cambridge University Press, 2011) and Aaron Faust, The Ba`athification of
Iraq: Saddam Hussein’s Totalitarianism (Austin, TX: University of Texas Press, 2015).
22 Nihad Sirees, The Silence and the Roar, translated by Max Weiss (New York: Other Press,
2013), 32, 53.
23 Human Rights Wat, Syria’s Tadmor Prison, April 1, 1996,
www.hrw.org/reports/1996/04/01/syrias-tadmor-prison. For baground see Miel
Seurat, Syrie: l’ É`tat de Barbarie (Paris: Presses Universitaires de France, 2012), Alan
George, Syria: Neither Bread nor Freedom (London: Zed Books, 2003) and Yassin al Haj
Saleh, Récrits d`une Syrie Oubliée: Sortir la mémoire des prisons (Paris: Les Prairies
Ordinaires, 2015).
24 Human Rights Wat, If the Dead Could Speak: Mass Deaths and Torture in Syria’s
Detention Facilities, December 16, 2015, www.hrw.org/reports/1996/04/01/syrias-
tadmor-prison and Amnesty International, “Between Prison and the Grave: Enforced
Disappearance in Syria,” November 5, 2015,
www.amnesty.org/en/documents/mde24/2579/2015/en/ (accessed September 4, 2016).
25 Robert Putnam, Making Democracy Work: Civic Traditions in Italy (Princeton: Princeton
University Press, 1994), 121–85 and Sonja Zmerli and Ken Newton, “Social Trust and
Aitudes Toward Democracy,” The Public Opinion Quarterly 72 (Winter, 2008), 706–24.
26 On the nature of the Arab state and its fundamental weakness, see Nazih Ayubi, Over-
stating the Arab State: Politics and Society in the Middle East (New York: I.B. Tauris,
2009), 447–59.
27 Pierre Razoux, The Iran-Iraq War, trans. Niolas Ellio (Cambridge, MA: Harvard
University Press, 2015), 569, 573; Joy Gordon, Invisible War: The United States and Iraq
Sanction (Cambridge, MA: Harvard University Press, 2012), 86–102 and John Tirman,
The Deaths of Others: The Fate of Civilians in America’s War (New York: Oxford
University Press, 2012), 192–267.
28 United Nations Human Rights Office of the High Commissioner, Report on the
Protection of Civilians in the Armed Conflict in Iraq, 1 May–31 October 2015,
241
www.ohr.org/Documents/Countries/IQ/UNAMIReport1May31October2015.pdf
(accessed September 4, 2016).
29 Griff Wie, “New U.N. Report says World’s Refugee Crisis is Worse than Anyone
Suspected,” Washington Post, June 18, 2015.
30 Failing Syria: Assessing the Impact of UN Security Council Resolutions in Protecting and
Assisting Civilians in Syria (2015),
www.oxfam.org/sites/www.oxfam.org/files/file_aaments/bp-failing-syria-unsc-
resolution-120315-en1.pdf and United National Development Report, Alienation and
Violence: Impact of Syria Crisis Report 2014 (UNDP/Syria Center for Policy Resear,
Mar 2015),
www.unrwa.org/sites/default/files/alienation_and_violence_impact_of_the_syria_crisis
_in_2014_eng.pdf (accessed September 4, 2016).
31 United National Development Report, Alienation and Violence: Impact of Syria Crisis
Report 2014 (UNDP/Syria Center for Policy Resear, Mar 2015), 6 and Strategic
Needs Analysis Project, Regional Analysis: Syria, www.acaps.org/img/reports/p-
regional-analysis-for-syria—part-a-overview-and-sectoral-analysis-oct-dec-2014.pdf
(accessed September 4, 2016).
32 Ri Gladstone, “U.N. Refugee Official Calls Situation in Syria and Iraq ‘Unsustainable’,”
New York Times, April 24, 2015 and Internal Displacement Monitor, Global Overview
2015, www.internal-displacement.org/global-overview (accessed September 4, 2016).
33 Hasan Abu Hanieh and Mohammad Abu Rumman, The “Islamic State” Organization:
The Sunni Crisis and the Struggle for Global Jihadism (Amman: Friedri Ebert Stiung,
2015), 164; Sarah Leah Whitson, “Why ISIS is Winning,” February 18, 2015,
www.hrw.org/news/2015/02/18/why-fight-against-isis-failing; William McCants, The
ISIS Apocalypse: The History, Strategy, and Doomsday Vision of the Islamic State (New
York: St. Martin’s Press, 2015), 125. For baground see Fanar Haddad, “Shia-Centric
State Building and Sunni Rejection in Post-2003 Iraq,” Carnegie Endowment for
International Peace, January 7, 2016 (accessed September 4, 2016).
34 Ann Barnard and Tim Arango, “Using Violence and Persuasion, ISIS Makes Political
Gains,” New York Times, June 3, 2015.
242
35 Liz Sly, “Petraeus: e Islamic State Isn’t Our Biggest Problem in Iraq,” Washington Post,
Mar 20, 2015.
36 is point has been belatedly anowledged by President Obama, “Goal is to Shrink
Islamic State Operations: Obama,” Reuters, November 15, 2015.
37 e Editors, “On ISIS,” Middle East Report, no. 276 (Fall 2015),
www.merip.org/mer/mer276/isis (accessed September 4, 2016).
38 William McCants, The ISIS Apocalypse: The History, Strategy and Doomsday Vision of
The Islamic State (New York: St. Martin’s Press, 2015), 42–5 and Fawaz Gerges, ISIS: A
History (Princeton: Princeton University Press, forthcoming, 2016), apters two and
three. Aas on civilians were at their lowest levels during this time period.
39 Robin Yassin-Kassab and Leila Al-Shami, Burning Country: Syrians in Revolution and
War (London: Pluto Books, 2016), 35–76; Samer Abboud, Syria (London: Polity Books,
2015), 48–82 and Paolo Gabriel Hilo Pinto, “Syria,” in Paul Amar and Vijay Prashad eds,
Dispatches from the Arab Spring: Understanding the New Middle East (Minneapolis,
MN: University of Minnesota Press, 2013), 204–42.
40 William McCants, The ISIS Apocalypse: The History, Strategy and Doomsday Vision of
The Islamic State, 85–86 and Peter Neumann, “Suspects into Collaborators,” London
Review of Books, April 3, 2014, www.lrb.co.uk/v36/n07/peter-neumann/suspects-into-
collaborators (accessed September 4, 2016).
41 ese reports, covering the first three years, can be found here:
www.du.edu/korbel/middleeast/syria.html (accessed September 4, 2016).
42 Syria Network for Human Rights, “e Main Conflict Parties Who are Killing Civilians
in Syria: Civilian Death Toll up to End of October 2015,” November 19, 2015,
hp://sn4hr.org/wp-content/pdf/english/Who_Are_Killing_Civilians_in_Syria_en.pdf
(accessed September 4, 2016).
43 U.N. Secretary-General, “Statement on Syria,” Mar 12, 2014, www.un.org/sg/
statements/?nid=7520 (accessed September 4, 2016).
44 On Syria’s under reported Rape Crisis see Lauren Wolfe, “Syria Has a Massive Rape
Crisis,” e Atlantic, April 3, 2013,
243
www.theatlantic.com/international/arive/2013/04/syria-has-a-massive-rape-
crisis/274583/ (accessed September 4, 2016).
45 U.S. Department of Defense, “Secretary of Defense Testimony: Statement on Iraq, Syria,
and ISIL Before the Senate Armed Services Commiee,” September 16, 2014,
www.defense.gov/News/Speees/Spee-View/Article/605607/statement-on-iraq-syria-
and-isil-before-the-senate-armed-services-commiee (accessed September 4, 2016).
46 John Mearsheimer, “America Unhinged,” The National Interest, no. 129 (January–
February 2014), 10.
47 Interview on Radio Open Source with Christopher Lydon, February 28, 2014. For a more
detailed critique of realism and Syria see Roger Cohen, “e Limits of American
Realism,” New York Times, January 11, 2016 and Muhammad Idrees Ahmad, “Syria and
Surrealism,” Los Angeles Review of Books, December 22, 2015.
48 Mark Lander, “Rice Offers a More Modest Strategy for Mideast,” New York Times,
October 26, 2013 and Marc Lyn, “Obama and the Middle East: Rightsizing the U.S.
Role,” Foreign Affairs 94 (September/October 2015), 18–27.
49 Rania Abouzeid, “e Jihad Next Door: e Syrian Roots of Iraq’s Newest Civil War,”
Politico Magazine, June 23, 2014, www.politico.com/magazine/story/2014/06/al-qaeda-
iraq-syria-108214.html#.VPpI5fnF9qV (accessed September 4, 2016).
50 Ni Cumming-Bruce, “U.N. Investigators Cite Atrocities in Syria,” New York Times,
September 16, 2014.
51 is draws upon a long tradition going ba to the Enlightenment where thinkers su
as Immanuel Kant, Jean-Jacques Rousseau, omas Paine and Alexis de Tocqueville
have advanced variations of this argument. According to George Kateb, the goal of
Rousseau’s democratic project is justice. “Rousseau’s Political ought,” Political Science
Quarterly 76 (December 1964), 519–43.
52 Nelly Lahoud with Muhammad al-`Ubaydi, Jihadi Discourse in the Wake of the Arab
Spring (Combaing Terrorism Center at West Point, 2013).
53 Cited by Mona El-Ghobashy, “e Metamorphosis of the Egyptian Muslim Brothers,”
International Journal of Middle East Studies 37 (August 2005), 390–1.
244
54 Jean-Pierre Filiu, From Deep State to Islamic State: The Arab Counter-Revolution and its
Jihadi Legacy (New York: Oxford University Press, 2015), 177–83 and Guido Steinberg,
Leading the Counter-Revolution: Saudi Arabia and the Arab Spring (Berlin: SWP
Resear Paper, German Institute for International and Security Affairs, June 2014).
55 Human Rights Wat, “Egypt: Establish International Inquiry into Rab`a Massacre,”
August 14, 2015, www.hrw.org/news/2015/08/14/egypt-establish-international-inquiry-
raba-massacre and “Egypt: Rab`a Killings Likely Crimes against Humanity,” August 12,
2014, www.hrw.org/news/2014/08/12/egypt-raba-killings-likely-crimes-against-
humanity (accessed September 4, 2016).
56 Robert Kagan and Mielle Dunne, “Obama embraces the Nixon Doctrine in Egypt,”
Washington Post, April 3, 2015; Human Rights Wat, “Egypt: Human Rights in Sharp
Decline,” January 29, 2015, www.hrw.org/news/2015/01/29/egypt-human-rights-sharp-
decline; Amnesty International, “Death Sentences and Executions 2014,” Mar 31, 2015,
www.amnestyusa.org/resear/reports/death-sentences-and-executions-2014 (accessed
September 4, 2016).
57 Marc Lyn, “e Endless Recurrence of the Clash of Civilizations,” The Monkey Cage
(Washington Post blog) November 20, 2015, www.washingtonpost.com/news/monkey-
cage/wp/2015/11/20/the-endless-recurrence-of-the-clash-of-civilizations/ (accessed
September 4, 2016).
58 Borzou Daragahi, “e Arab Idealist who dies for ISIS,” Financial Times, December 2,
2014; Emad Shahin, “Four Traits, Sisi, Hitler and Mussolini Have in Common,” Middle
East Eye, June 6, 2015, hp://emadshahin.com/?p=1916 (accessed September 4, 2016).
59 David Kirkpatri, “U.S. Citizen, Once Held in Egypt’s Cradown, Becomes Voices for
Inmates,” New York Times, August 28, 2015.
60 Samira Shale, “Mohammad Soltan, the Egyptian Activist who spent 400 Days on
Hunger Strike in Prison,” The New Statesman, October 28, 2015,
www.newstatesman.com/world/middleeast/2015/10/mohamed-soltan-egyptian-activist-
who-spent-400-days-hunger-strike-prison and Murtaza Hussain, “ISIS Recruitment
rives in Brutal Prisons Run by U.S.-baed Egypt,” The Intercept, November 24, 2015,
hps://theintercept.com/2015/11/24/isis-recruitment-thrives-in-brutal-prisons-run-by-u-
s-baed-egypt/ (accessed September 4, 2016).
245
61 Fareed Zakaria, “From Tunisia, a Voice of Hope from the Muslim World,” Washington
Post, October 29, 2015. Also see Raed Ghannoui, “Fight ISIS with Democracy,” The
Atlantic, February 1, 2016, www.theatlantic.com/international/arive/2016/02/tunisia-
democracy-ennahdha-isis/458703/ (accessed September 4, 2016).
62 John F. Kennedy, “Address on the First Anniversary of the Alliance for Progress,” Mar
13, 1962.
63 Khaled Abou El Fadl, Reasoning with God: Reclaiming Shari`ah in the Modern World
(Lanham, MD: Rowman & Lilefield, 2014), 115.
64 Miael Crawford, Ibn ‘Abd al-Wahhab (Oxford: Oneworld Publications, 2014), 47–71
and Khaled Abou El Fadl, Reasoning with God, 227–51.
65 Khaled Abou El Fadl, Reasoning with God, 229.
66 Ibid., 232.
67 Muhammad Masud, Armando Salvatore, Martin van Bruinessen eds, Islam and
Modernity: Key Issues and Debates (Edinburgh: Edinburgh University Press, 2009).
68 Bernard Haykel, “On the Nature of Salafi ought and Action,” in Global Salafism:
Islam’s New Religious Movement in Roel Meijer (London: Hurst, 2009), 38–9; Khaled
Abou El Fadl, Reasoning with God, 251–70.
69 Madawi Al-Rasheed, A History of Saudi Arabia, 2nd edition (Cambridge: Cambridge
University Press, 2010), 13–68 and Ben Hubbard, “Saudis Turn Birthplace of Wahhabism
Ideology into Tourist Spot,” New York Times, May 31, 2015.
70 Khaled Abou El Fadl, Reasoning with God, 237.
71 Ben Hubbard and Mayy El Sheikh, “Wikileaks Shows Saudi Obsession with Iran,” New
York Times, July 16, 2015. Also see David Commins, The Wahhabi Mission and Saudi
Arabia (New York: I.B. Tauris, 2009), 158–78.
72 Khaled Abou El Fadl, Reasoning with God, 243.
73 Masha Gessen, The Brothers: The Road to An American Tragedy (New York: Riverhead
Books, 2015), 48–50 and her interview on National Public Radio, “Tracing the Roots of
‘e Brothers’ and the Roots of the Boston Marathon Bombing,” April 7, 2015. Also see
246
Alissa de Carbonnel and Stephanie Simon, “Special Report: e radicalization of
Tamerlane Tsarnaev,” Reuters, April 23, 2013.
74 Leo Cendrowicz, “Paris Aas: How the Influence of Saudi Arabia Sowed the Seeds of
Radicalism in Belgium,” The Independent, November 23, 2015.
75 Ibid. Also see Odile Leherte, “Dossier Alabri: la Belgique a fait pression sur l`Arabie
Saoudite,” August 12, 2015, www.rtbf.be/info/societe/detail_mosquee-du-
cinquantenaire-la-belgique-a-fait-pression-sur-l-arabie-saoudite?id=9052178.
76 Mehree Zahra-Malik, “Pakistan in California Shooting became hardline in Saudi Arabia:
relations,” Reuters, December 5, 2015.
77 Declan Walsh, “Tashfeen Malik Was a ‘Saudi Girl’ Who Stood Out at a Pakistani
University,” New York Times, December 6, 2015.
78 Ibid.
79 Human Rights Wat, “Saudi Arabia: Surge in Executions,” August 21, 2014.
80 “Executions in Saudi Arabia at a 20-year high, says Amnesty International,” The
Guardian, November 9, 2015 and Human Rights Wat, “Saudi Arabia: Mass Execution
Largest since 1980,” January 4, 2016.
81 A translation of the document can be found at:
hps://pietervanostaeyen.wordpress.com/2014/12/16/an-official-islamic-state-statement-
on-shari-punishments/ (accessed September 4, 2016).
82 Rori Donaghy and Mary Atkinson, “Crime and Punishment: e Islamic State vs Saudi
Arabia,” January 20, 2015, www.middleeasteye.net/news/crime-and-punishment-
islamic-state-vs-saudi-arabia-1588245666 (accessed September 4, 2016).
83 Patri Coburn, “Isis Militants: Twier Provides one of the Few Forums in whi
Saudis can Discuss What ey Really Feel - and it says they Blame the Clergy for Isis,”
The Independent, October 4, 2014 and Karen Armstrong, “Wahhabism to ISIS: How
Saudi Arabia Exported the Main Source of Global Terrorism,” New Statesman,
November 27, 2014. Also see Madawi Al-Rasheed, “e Shared History of Saudi Arabia
and ISIS,” November 28, 2014, www.hurstpublishers.com/the-shared-history-of-saudi-
arabia-and-isis/ (accessed September 4, 2016).
247
84 Toby Mahieusen, “e West’s Alliance with Saudi Arabia Fuels Islamism,” New York
Times, December 8, 2015 and William McCants, The ISIS Apocalypse, 151.
85 J.M. Berger and J. Morgan, “e ISIS Twier Consensus: Defining and Describing the
Population of ISIS Supporters on Twier,” Brookings Institution, Mar 2015,
www.brookings.edu/resear/papers/2015/03/isis-twier-census-berger-morgan
(accessed September 4, 2016).
86 “Saudis Most Likely to Join ISIS, 10 Percent of Group’s Fighters are Women,” Middle East
Monitor, October 20, 2014 and Munira Ahudab, “Saudis Carried Out 60 Percent of
Suicide Aas for ISIS in Iraq,” Al Hayat, October 16, 2014.
87 Khaled Abou El Fadl, Reasoning with God, 217.
88 Karen Armstrong, “Wahhabism to ISIS: How Saudi Arabia Exported the Main Source of
Global Terrorism,” New Statesman, November 27, 2014.
89 United Nations Development Program, Arab Development Report 2002: Creating
Opportunities for Future Generations (New York: United Nations Development
Program, 2002), 27.
90 Ibid., 28.
91 United Nations Development Program, Arab Development Report 2004: Towards
Freedom in the Arab World (New York: United Nations Development Program, 2004), 5.
92 Rami Khouri, “Antidote to the Islamic State reat,” August 27, 2014,
www.agenceglobal.com/index.php?show=article&Tid=2763 (accessed September 4,
2016).
248
Selected Bibliography
Abou El Fadl, Khaled. Reasoning with God: Reclaiming Shari`ah in the Modern World. Lanham, MD: Rowman and Lilefield, 2014.
Al Haj Saleh, Yassin. Récrits d`une Syrie Oubliée: Sortir la mémoire des prisons. Paris: Les Prairies Ordinaires, 2015.
Al-Rasheed, Madawi. A History of Saudi Arabia, 2nd edition. Cambridge: Cambridge University Press, 2010.
Armstrong, Karen. “Wahhabism to ISIS: How Saudi Arabia Exported
the Main Source of Global Terrorism.” New Statesman, November 27, 2014.
Filiu, Jean-Pierre. From Deep State to Islamic State: The Arab Counter-Revolution and its Jihadi Legacy. New York: Oxford University Press, 2015.
Gerges, Fawaz. ISIS: A History. Princeton, NJ: Princeton University Press, 2016.
Khouri, Rami. “Antidote to the Islamic State reat.” Agence Global, August 27, 2014. Available at www.agenceglobal.com/index.php?
show=article&Tid=2763 (accessed February 3, 2016).
Lister, Charles. The Islamic State: A Brief Introduction. Washington DC: Brookings Institution, 2015.
McCants, William. The ISIS Apocalypse: The History, Strategy, and Doomsday Vision of the Islamic State. New York: St. Martin’s Press, 2015.
Makiya, Kanan. Republic of Fear: The Politics of Modern Iraq, updated edition. Berkeley, CA: University of California Press,
1998.
Nasr, S.V.R. “European Colonialism and the Emergence of Modern
Muslim States.” In The Oxford History of Islam. John Esposito, ed., 549–600. New York: Oxford University Press, 1999.
249
Owen, Roger. State, Power and Politics in the Making of the Modern Middle East, 3rd edition. New York: Routledge, 2004.
United Nations Development Program. Arab Development Report 2004: Towards Freedom in the Arab World. New York: United Nations Development Program, 2004.
Yassin-Kassab, Robin and Leila Al-Shami. Burning Country: Syrians in Revolution and War. London: Pluto Books, 2016.
250
7 e Impact of the AKP on Human Rights in Turkey
One step forward, two steps ba
Turan Kayaoglu1
251
Introduction
e Justice and Development Party (Adalet ve Kalkınma Partisi, AKP), a moderate Islamist party, has ruled Turkey since 2002. e party emerged as a splinter party from the (Islamist) Virtue Party in 2001, whi was dissolved by the Turkish Constitutional Court for alleged anti-secular activities and some of its leaders were banned from politics. Frustrated with the old guard, the Virtue’s Young Turks established the AKP. e new party won three subsequent elections and ruled Turkey from 2002 to 2015 – the period focused on in this apter – in a single-party government. In 2015, the party lost its majority, but still remained the biggest party in parliament.
From economy to ideology and from foreign policy to civil- military relations, AKP rule has transformed Turkey; a ange that is comparable to the Kemalist transformation of the country in the early decades of the republic. e Kemalist top-down revolution
created resentment and caused a reaction from below, especially among the pious and Kurds. Turning the tables against Kemalists, these groups brought the AKP into power and set the stage for a
revolution from below.2 e impact of this revolution on human
rights has received surprisingly lile aention.3
is apter examines the impact of AKP rule on human rights in Turkey in order to assess whether the AKP has fostered or hindered human rights and democracy in Turkey. e apter investigates this issue in several ways. First, it describes the human rights framework and situation in Turkey in the decade before the AKP. Second, it assesses the AKP’s reforms with a particular focus on Kurdish rights and religious freedom during the AKP’s 2002–7 rule, linking these reforms to Turkey’s human rights and democracy problems in the decade previous to AKP rule. ird, it discusses how the AKP lost its
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appetite for reform in its second term but still managed to limit the influence of the military in Turkish politics and combat military impunity. Finally, the apter examines the AKP’s third and most controversial term when the party diminished protections for human rights and democracy. All this presaged and made unsurprising the more explicit authoritarianism that emerged in the wake of 2016’s unsuccessful coup.
is apter will show that the AKP’s human rights record has been on a downward spiral even before 2016: in its first term, it was progressive; in the second, stagnant; in the third, repressive. On some issues, su as minority rights, Sunni Muslims’ religious rights, and economic and social rights, the party was progressive; on other broader issues, su as women’s rights, freedom of spee, and the rule of law, it was regressive. As many political scientists might have predicted, the AKP’s aitude towards human rights and democracy was motivated more by political interest rather than by a genuine commitment to human rights or democracy. Its human rights reforms mostly helped its constituencies; when the reforms were not in the interest of the party, the AKP quily jeisoned its human rights agenda.
e ups and downs of human rights in Turkey under the AKP show the selective acceptance and tactical use of human rights by Islamist parties. e AKP’s authoritarian turn questions the inclusion-moderation thesis for whi AKP once was a poster-ild. is theory suggested that the inclusion of Islamist political parties in the political process would moderate them. Electoral pressures would lead them to avoid extremes and push them to embrace basic rights and pluralism. Moreover, the need to solve everyday problems —fixing the potholes—would force them to shi their focus away from radical social and political agendas. While many solars stopped short of predicting long-term ideological transformation, the implication of the inclusion-moderation literature was clear: learning from their experience of exclusion and repression and
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playing with the rules of electoral politics, these Muslim democrats would take positions to expand freedom and human rights for everyone.
e AKP experience, however, shows that Islamist parties’ electoral success may lead to tactical and selective gains for human
rights but without institutional meanisms and internalization of human rights by party elites these human rights gains are easily reversible. As Shadi Hamid argues, while electoral success can lead to a majoritarian rule, it does not necessarily lead to liberal democracy, especially when the rights of minorities are unpopular
among the majority.4 In the case of the AKP, populism combined with Islamism trumped human rights concerns, whi were priorities for liberal elites, minorities, and international actors. e AKP has used the rhetoric of human rights when it needed to rea liberal elites, minorities, and international actors not only to win elections but also to strengthen its position vis-à-vis other domestic actors, su as the military whi has been anti-Islamist and has significant formal and informal influence over state institutions and part of civil society. Once the AKP and its allies effectively curtailed the influence of the military, the party jeisoned its human rights agenda, reversed some of its own reforms, and introduced policies limiting human rights. Apart from the interests of its core constituencies—Islamists—the AKP was not interested in human rights in general and merely adopted the language of human rights and democracy tactically to win the elections and to gain the support of liberal domestic and international actors and thus gain the upper hand over unelected but powerful groups, su as the military.
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e rights framework in Turkey
Turkey has a strong rights framework grounded in internal and external protections. Internally, aer the basic principles, the Turkish constitution specifies rights in three lengthy sections, protecting fundamental rights (Articles 12–40), social and economic rights
(Articles 41–65) and political rights (Articles 66–74),5 seing an expansive understanding of rights. e constitution also recognizes the authority of international human rights treaties over domestic jurisdiction (Article 90). Additionally, Turkey has ratified all of the
major international treaties on human rights.6 By recognizing the legitimacy of the international human rights framework the constitution strengthens Turkey’s rights protections.
Turkey has a strong civil society in whi several human rights organizations have played major roles in advancing human rights discourse and practices. e Human Rights Association (İnsan Hakları Derneği, IHD), whi focuses on le-wing political prisoners and Kurdish rights, is the most influential human rights NGO in
Turkey; it has 29 branes and over 10,000 members and activists.7
Among other important NGOs are the Association for Human Rights and the Oppressed (İnsan Hakları ve Mazlumlarla Dayanışma
Derneği, Mazlumder),8 whose 28 branes focus on right-wing political prisoners and the religious rights of Sunni Muslims, and the Human Rights Foundation of Turkey (Türkiye İnsan Hakları Vakfı, TIHV), whi focuses on combating torture and helping torture
victims.9 Unlike similar NGOs in the West, these organizations work closely with social movements rather than relying on litigation. For example, IHD works in tandem with Kurds and Mazlumder cooperates with Islamists; the organizations also rely on media affiliated with these social movements. e extent to whi these
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groups and social movements are able to make ange oen depends
on finding support among politicians and officials.10
It is not Turkey’s internal meanisms for human rights, however, that set it apart in the Middle East and North Africa (MENA), but, rather, its external ones. Turkey is party to the European Convention on Human Rights and is thus under the jurisdiction of the European Court of Human Rights (ECtHR). Hoping to burnish the country’s Western image on the eve of the Cold War and to secure the country’s secular aracter, Turkish leaders participated in the
discussions that led to the creation of the Council of Europe.11 In 1987, Turkey assented to the right of individuals to petition the ECtHR when their complaints exhausted the remedies available in the Turkish domestic legal system. Turkey has consistently had a high number of cases in the court’s doet although its effect remained limited until 1989 when Turkey accepted the compulsory
jurisdiction of the ECtHR.12
Turkey’s membership application to the European Union provides a second European dimension for human rights protections in Turkey. While the Turkish membership process has been uneven— alternating between periods of excitement and activity and periods of skepticism and stalemate—the European Union’s demands have triggered or facilitated the advancement of human rights in Turkey. is was especially true in the years following 1999, when Turkey was officially named an EU candidate country. Concerns about human rights and democracy have played a significant role in advance of membership negotiations and the EU asked Turkey to fulfill a set of prerequisites known as the Copenhagen Criteria, whi include expectations about democracy and human rights, before these negotiations could begin. e EU is particularly sensitive to minority rights, especially as concerns the Kurds’ freedom of thought, expression, assembly, and due process rights. However, the EU’s influence on economic and social rights has been
256
limited—in fact, when the EU pushes for economic liberalization, its
effect may be harmful to labor rights.13
e U.S. is another external actor with influence on human rights in Turkey. Turkey became a NATO member in 1952. is close alliance has allowed the U.S. to have leverage, albeit limited, over Turkey on issues related to democracy and human rights although paradoxically, it has also meant U.S. administrations are hesitant to criticize Turkey’s human rights publicly. Nevertheless, this alliance has been instrumental in seing the expectation that the military will transfer authority to civilian governments aer military coups
in Turkey. Unlike the hesitancy of U.S. presidents, the U.S. Congressional reports and the State Department’s International Religious Freedom Reports and Human Rights Reports have been more critical in assessing Turkey’s human rights record.
Despite these supportive internal and external conditions for the protection of human rights, human rights violations have been rampant in Turkey and Turkey’s modern history has been punctuated by four military interventions during whi human rights protections were sidelined. As discussed below, the military’s ‘February 28 Dictates’ shaped the second half of the 1990s. Weak coalition governments and a culture of impunity concerning the military gave the military free rein to pursue what it saw as two
existential threats to the Republic: Kurds and Islamists.14
Regarding the Kurds, the military engaged in an aggressive counterinsurgency campaign against the Kurdistan Workers’ Party (Partiya Karkerên Kurdistanê, PKK) in southeast Turkey, resulting in significant and wide spread human rights abuses, including the burning of villages, the torture of PKK militants and sympathizers, the disappearance of Kurdish activists, the jailing of Kurdish intellectuals, the suppression of Kurdish media, and extrajudicial killings aributed to the Gendarmerie Intelligence and Counter- Terrorism Unit (Jandarma İstihbarat ve Terörle Mücadele Teşkilatı, JITEM). Although the capture of PKK leader Abdullah Öcalan in
257
Kenya in 1999 temporally diminished the violence in the region, tension and occasional clashes between the security forces and PKK militants—as well as between the PKK and Hizbullah (of Turkey; not to be confused with Hezbollah in Lebanon) militants—continued into the early 2000s and flared up again in 2015.
Regarding the Islamists, the military issued a series of demands to the civilian government to eliminate the Islamist ‘threat,’ resulting in widespread discrimination against pious Muslims. e military has always been suspicious of religious activism, but its concerns reaed new heights when the 1995 election returns made the Islamist Welfare Party the largest party in parliament. e party then established a coalition government. e military used the National Security Council, whi included civilian and military members, to impose the ‘February 28 Dictates’ in 1997. Labeling the Islamists, including the Welfare Party, as the biggest threat to national security, the Dictates required the government to impose wide-ranging measures in education, the economy, and the bureaucracy to combat Islamist influences. Under pressure from the military, the Welfare Party government collapsed and a new three- party coalition government was established to implement the Dictates. During this period, the Welfare Party was closed by the Turkish Constitutional Court for its alleged anti-secular activities, women with headscarves were dismissed from universities, the middle sools of the religious Imam Hatip organization were closed, and bureaucrats suspected of having Islamist sympathies were fired from their jobs.
In sum, despite some elements of a strong rights framework, Turkey’s weak coalition governments, the military’s tutelage over civilian authorities, and the militarization of political conflicts with Kurds and Islamic groups worsened the human rights record of Turkey in the 1990s. ese tensions and the 2001 economic crisis created the conditions for the rise of the AKP. Distancing itself from the Milli Görüş (National Outlook) of earlier Islamist parties, the
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AKP tactically and successfully expanded the traditional Islamist base and won support from apolitical Sufi movements, Kurds, liberals, and those hurt by the economic crisis.
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2002–7: democratic reforms and the
expansion of rights
From 2002 to 2005, the AKP appeared to emerge as a force for democracy and human rights, prompting Zehra F. K. Arat and her collaborators to expect a ‘brighter future’ for human rights in
Turkey.15 Although a religious cadre formed the AKP babone, the party enjoyed wide support, particularly among those who felt it represented the aspirations of groups whi had also experienced state repression since the early years of the Republic for not fiing
Kemalist ideas of the nation-state.16 A significant portion of Kurds, who comprise 18 percent of the Turkish population and who have faced either assimilation or repression for the majority of modern Turkish history, supported the AKP. e party also garnered support from other ethnicities, including Arabs, Lazs, Circassians and even, to a limited extent, Turkey’s dwindling religious minorities, su as Jews, Greeks, and Armenians. Most liberal intellectuals, long critical of the Turkish state and military, supported the party due to the
AKP’s rhetoric of pluralism, human rights, and democracy.17 e reaction against the politics of the Kemalist-dominated earlier eras was a revolution from below, and the AKP was able to annel these sentiments, capitalizing on the appeal of human rights, democracy, development, and EU membership.
Despite its strong mandate from the electorate, the AKP refrained from directly allenging administrative tutelage—the formal and informal limitations imposed by the bureaucracy, especially the military, on civilian government. e February 28 Dictates continued, even if the balash they created was partly responsible for the rise of AKP. Facing this restrictive political environment, the AKP relied on a strong rights, democracy, and economic
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development discourse, legitimized as part of the EU membership criteria, and thereby sidestepped potentially polarizing cultural and social agendas. is strategy also appealed to liberals and others concerned about economic welfare, rather than ideology. Essentially, the AKP seemed to present a new identity for and vision of Muslim democracy, blending political and economic liberalism with social conservativism, akin to European Christian democrat parties.
e AKP, empowered and led by a boom-up coalition, strategically used the EU membership process to open Turkish
political space to the marginalized segments of society.18 Joost Lagendijk, former air of the EU–Turkey Joint Parliamentary Commiee, called 2003 and 2004 the “golden years” in Turkey–EU
relations.19 In 2004, the EU anowledged that Turkey had sufficiently fulfilled the Copenhagen Criteria for EU membership, standards whi include the “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and
protection of minorities.”20 e EU then allowed the formal membership negotiations to start.
At this point, pleasing liberals and assuaging the fears of the secularists, the AKP pushed a series of impressive political and economic liberalization reforms. Rather than imposing sharia, the AKP sought to align the Turkish legal system with the Copenhagen criteria. Four areas of reform are especially noteworthy:
Kurdish Rights:e Kurdish problem has plagued most of Turkey’s modern history. When in the 1980s the military took the lead in addressing the situation, the issue became a law and order problem. e military’s counterinsurgency tactics in the 1990s resulted in the alienation of most of Turkey’s Kurds. Asserting its authority on the issue and by extension asserting its right over the military to deal with the Kurds, the AKP recognized the Kurdish problem as a political and cultural problem, and offered a democratic solution. e government recognized the Kurds’ right to speak, publish, and
broadcast in Kurdish21 and removed the prohibition on Kurdish
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names. Kurdish names can now appear on birth certificates as legal names. e ban on the use of the leers q, w, and x, whi are part of the Kurdish alphabet but not the Turkish alphabet was lied with the ‘democratization paage’ of September 2013. Moving beyond civil and political rights, AKP initiatives expanded to include cultural rights. Although the government stopped short of making Kurdish an official language, private sools and universities were allowed to tea Kurdish language, whi is also available as elective
in some public sools.22
Religious Freedom:e AKP’s core constituency has been Islamic groups, appealing not only to the former Welfare Party’s Nakshibendi-based and political Islamists but also to others, su as followers of the Gülen movement, whi had previously supported central-right parties rather than Islamists. e AKP expanded its appeal by allowing greater flexibility in religious education and also by permiing female students to wear headscarves to universities. e laer policy was established through new regulations rather than through a constitutional amendment, reflecting the party’s deference to administrative tutelage in this period.
Non-Muslim Minorities:Unlike Kurds and other Muslim minorities, non-Muslim groups—Greeks, Armenians, and Jews—were afforded official minority status in Turkey, whi was recognized in the Lausanne Treaty (1924) between Turkey and the WWI Allied Powers following the Turkish War of Independence (1920–3). Despite their official status however, these minorities have suffered widespread discrimination throughout Turkish history. Under the AKP, some grievances of non-Muslim minorities remain, su as the unrealized desire to re-open the Greek Orthodox eological Sool of Halki, the la of government action to combat pervasive anti- Semitic discourse in media and politics, and the failure to recognize the Armenian genocide. e AKP did, however, seek to address some of the entrened problems, motivated in particular by three factors: its perception that some of the problems of religious minorities were
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due to the Kemalist legacy, its desire to show a commitment to EU principles, and its aempt to signal a commitment to pluralism in order to woo liberal domestic allies. Among the AKP reforms enacted to address non-Muslim minority grievances, for example, was a removal of the ban on minority foundations acquiring, disposing of, or transferring property and the ban on opening places
of worship.23
Economic rights:e Turkish economy has expanded significantly since the 2001 economic crisis, growing an impressive 6.8 percent
annually between 2002 and 2007.24 e government funneled new revenue into expanding the social safety net, supporting the poor and middle class through affordable housing, universal healthcare, and other social spending. ese social reforms proceeded in tandem with a program of economic liberalization. is economic liberalization had a darker side however, as it undermined the rights of labor and resulted in decreased protections for labor (resulting in a decline in real wages and increasing economic inequalities—and
increased negative environmental impacts).25
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2007–2011: taking on administrative tutelage
and the culture of impunity
Increasing its share of the vote to 47 percent, the AKP won a second term in office in 2007. As the party became more powerful, reform efforts diminished. During this period, the AKP and its allies, most significantly the Gülen movement, fought administrative tutelage and the culture of impunity enshrined in key parts of the state bureaucracy. In particular, state officials who saw themselves as the guardians of the Kemalist regime had directly or indirectly crippled the earlier aempts to open the political system to Kurds, leist, and
Islamists.26 Seeing these groups as threats to national security, the police, military, and intelligentsia formed a ‘deep state’ and engaged in gross violations of human rights. For example, concerning the Kurds, the operatives of the deep state are suspected of torture, extrajudicial killings, and disappearances in the 1990s. ese operatives acted with impunity, confident they would never be held accountable in a court of law and secure in the knowledge that their human rights violations would not be met with retribution or punishment. As a result, “Due process rights have been frequently violated in Turkey, and abuse in detention or prison, including
torture, have been endemic.”27 A 2010 Human Rights Wat report stated that “Turkish courts are notoriously lenient towards the members of the security forces who are arged with abuse or misconduct, contributing to impunity and the persistence of torture
and the resort to lethal force.”28
Combatting the Culture of Impunity:e Ergenekon trials, starting in 2008 and the 2010 Sledgehammer trial targeted not only high- ranking military personnel but also their allies in the civilian bureaucracy and, most controversially, in the media, civil society,
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and the academy. Allegedly, these groups had collaborated to undermine—and possibly to overthrow—the AKP government in the early 2000s. While most AKP allies supported these mass trials, some, especially liberals, questioned whether the police and prosecutors were themselves disregarding the rights of the accused. Many suspected that the police and prosecutors, acting with a similar level of impunity as the behavior they claimed to be fighting, violated due process and used fabricated evidence and secret witnesses in order to keep the accused in jail.
Kurdish Rights:Overtures to Kurds continued throughout this period. In an effort to arrive at a long-term solution to Kurdish grievances, the government decided to talk with Kurdish leadership and jailed PKK leader Abdullah Öcalan and also unveiled a ‘Democratic Initiative’ offering a set of major reforms to address Kurdish demands. In January 2009, in an unprecedented move, the state broadcasting agency (TRT) launed TRT 6, a TV annel broadcasting in Kurdish around the clo. ese moves elicited reactions from Turkish nationalists and parliamentary resistance however, and the AKP slowed down and has failed to push these
mu-anticipated reforms.29
Freedom of Expression:During the first two periods, AKP governments expanded freedom of expression on some issues. Compared to pre-AKP days, it became easier to discuss once-taboo subjects su as the Kurdish problem, the Armenian genocide, the military’s place in politics, and Atatürk’s legacy. Freedom of the
press was likewise strengthened.30 Several problematic laws, however, su as Article 301 of the Turkish Penal Code (TCK) whi bans ‘insult to Turkishness,’ remain on the books and prosecutors have used this article alongside existing anti-terror laws to stifle pro- Kurdish and anti-AKP voices.
Alevi Rights:An estimated 15–25 percent of the Turkish population considers themselves Alevi, a variant of Shi`ite Islam. Alevis, who have historically been discriminated against and persecuted by the
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Sunni majority, have been staun supporters of secularism and secular parties and are thus suspicious of the AKP. Alevi demands called for the recognition of cemevis as places of worship; the restructuring—if not abolition—of the Directorate of Religious Affairs to accommodate non-Sunnis; and making religious education, whi emphasizes Sunni Islam, an elective subject in sools. e AKP launed its “Dialogue with Alevis” initiative in 2008 and 2009, but eventually abandoned this initiative having made
lile progress in this area.31
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2011–15: AKP authoritarianism and rolling
ba of rights
e AKP came to power a third time in 2011 with a landslide victory, capturing 50 percent of the vote in parliamentary elections. As AKP’s electoral success increased, its reformist spirit waned and its latent authoritarian tendencies emerged. In this period, human
rights and democracy experienced major setbas.32
What accounts for this ange in the AKP’s appetite for human rights reform? Five factors—three external and two internal—seem significant. First, the momentum for EU membership has slowed. Vetoed by Cyprus, spurned by then Fren President Nicolas Sarkozy, scared by the Greek economic debacle, and having seen the rise of anti-Muslim parties across the EU, the Turkish public and government have lost hope for EU membership. is apathy, or Euro-fatigue, has made the human rights agenda, an EU-inspired project, a hard sell.
Second, the tumultuous events of the Arab Spring and the AKP’s desire for regional leadership moved the government’s focus away from mu-needed domestic reforms. With the regional rise of groups affiliated with the Muslim Brotherhood, AKP leaders have become more concerned with polishing their religious—rather than human rights—credentials. e Arab Spring, in particular, ignited the AKP’s pro-Muslim Brotherhood orientation and empowered the Islamists in the AKP coalition at the expense of centrists and liberals. As a result, the AKP shied its foreign policy vision toward the MENA region as opposed to Europe. e government’s activism in keeping the border open for Syrian refugees, providing protection to these refugees, and loudly demanding that the Assad regime end its
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brutal cradown is arguably mu more related to its foreign policy goals than to its commitment to human rights.
ird, mistrust between the U.S. and the AKP has grown. In shiing its focus on the MENA region, the AKP took a mu harsher rhetorical stand against Israel—a position crystalized when Prime Minister Erdoğan interrupted Israeli President Shimon Peres in Davos in 2009, calling out: “Killers.” Likewise, tensions increased with the 2010 Israeli Defense Forces interception of the Turkish ship, Mavi Marmara, while carrying humanitarian aid to Gaza. e Obama administration’s reluctance to further engage with the MENA region has also allowed the AKP to art a new foreign and domestic course.
Internal factors also explain the AKP’s move away from reform: economic and electoral success emboldened AKP leaders, making them overconfident. Economically, Turkey was in a growth cycle until 2013. is success is notable in light of the global economic slowdown and the economic problems in Europe, Turkey’s biggest export market. And politically, opposition to the AKP remains weak. e AKP has won the last five major elections, including three parliamentary elections and two municipal elections; its victory in 2011 garnered a historic 50 percent of the vote. ese successes have turned the AKP into the party of the status quo rather than reform. In June 2015 elections, the party lost some support but still won 40 percent of the votes. e parliamentary configuration resulted in a hung parliament led to a snap election sedule in November 2015.
Finally, the AKP has anged its approa to the Kurdish issue, Turkey’s thorniest human rights problem. In its first term, Party leaders saw the Kurdish issue from the perspective of civil, political, and cultural rights. However, since 2007, the party has viewed the Kurdish issue from the perspective of PKK-violence and political competition with the pro-Kurdish Peace and Democracy Party (Barış
ve Demokrasi Partisi, BDP).33 With this shi in perspective, the AKP no longer promotes human rights or democratic reforms as a
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solution to the Kurdish problem, replacing this approa with a proposed political deal with the PKK and initiated direct talks with the imprisoned Kurdish leaders, Öcalan, rather than elected Kurdish officials. is is unfortunate: A major breakthrough in human rights in Turkey will not come without the government directly addressing the Kurdish problem. Treating the PKK, an armed group that the Turkish state considers terrorist, as the sole representative of Kurds in Turkey will be a dangerous and risky path, as flaring up violence between PKK and Turkish security forces in the Summer of 2015 has shown.
During this period, human rights in Turkey suffered major setbas and the AKP has faced increasing criticism regarding its human rights record. e 2012 Report of the U.S. Commission on International Religious Freedom recommended that the U.S. State Department categorize Turkey as a ‘Country of Particular Concern,’ a category reserved for countries su as Iran, China, and Saudi
Arabia.34 In its 2013 report, Freedom House downgraded Turkey’s civil liberties rating from three to four (one is the most free; seven the least free) for the “detention of thousands of individuals— including Kurdish activists, journalists, union leaders, students and military officers—in campaigns that many believe to be politically
motivated.”35
Policy Brutality in Gezi Protests:e AKP clearly demonstrated its new authoritarian face and its movement away from liberals and urban, educated youth in the government’s handling of the Gezi protests. Popular reaction against the government’s plan to allow construction of a shopping mall in Gezi park, one of the few remaining green spaces in the city center, erupted in protest in Istabul’s Taksim Square in May, 2013. Regarding this as another AKP move to privatize public areas, a wide range of liberal, leist, and anti-AKP groups joined environmentalists to occupy Gezi park and prevent the removal of the park’s trees. Protests grew as some saw an opportunity to force Erdoğan from office, even if that was
269
unlikely to happen. Erdoğan’s harsh reaction against any allenge to his authority and his vitriolic denunciation of the protesters gave the green light to a violent police cradown on the largely peaceful protest and ignited protest elsewhere in Istanbul and the country.
Eight people were killed and many were injured in the clashes.36
Gülen Movement:Among all the alliances the AKP abandoned in this period, its falling away with the Gülen movement was the most acrimonious. In its first two terms, the AKP and Gülen movement were close collaborators. Most speculate that the Gülen movement likely engineered the Ergenekon and Sledgehammer cases that AKP used to rein in the military. But ideological allenges (the Gülen movement’s pro-West orientation put it at odds with political Islamists), material concerns (competition over staffing positions in the state bureaucracy), and distrust between Gülen and Erdoğan made it clear that the alliance was faltering. e relationship was further soured by the corruption arges—known as the December 17 and December 25 cases—whi named ministers’ ildren as well as businessmen close to the AKP’s inner circle. Although denied by followers of Gülen, Erdoğan and his allies accused the Gülen movement of being behind these arges. In response, Erdoğan has used state authorities to unleash a war on the Gülen movement, both domestically and internationally, using courts, tax agencies, and formal and informal coercion to place pro-AKP individuals in important positions within the movement. When that failed, the AKP moved to cripple the movement so it would pose no further
danger to Erdoğan and the AKP government.37
Freedom of Speech:Prosecutors still arge people for offenses that would likely be protected by free spee provisions in other countries. e AKP government has increasingly targeted social media and the internet, denying access to websites critical of the government and has even imposed temporary restrictions to YouTube and Twier access in retaliation for the sites allowing users to post leaked phone conversations suggesting corruption on the part
270
of AKP government members and Prime Minister Erdoğan’s inner
circle.38 In 2015, Reporters Without Borders ranked Turkey 149 out of
180 countries in its World Press Freedom Index.39
Women’s Rights:ere have been some hopeful signs regarding women’s rights. e 2011 elections increased women’s representation in parliament from 50 to 78 seats (out of 550). Turkey also became the first country to sign the Council of Europe’s 2014 Convention on preventing and combating violence against women and domestic violence. But the government has taken few tangible measures to advance the lives of women and gender inequality and violence against women remain endemic. Women’s economic participation is a low 27 percent. Police and courts oen fail women who apply for help under the Family Protection Law and domestic violence and the murder of women by family members continue to
be major issues.40 President Erdoğan’s own anti-female aitudes—as exemplified his 2014 comment that “Women shouldn’t be considered as equals”—for example, have further legitimized discrimination against women in areas su as education, work, and reproductive
rights.41
Failure to Combat Impunity:Police continue to beat and to use excessive force against protestors and have even used firearms against unarmed suspects. Too oen, prosecutors do not pursue these cases; rather than prosecuting the police for the abuse, they blame the protestors. Police, members of National Intelligence Agency, and the military remain unaccountable for their actions—unless these actions conflict with AKP interests. e security paage the Parliament passed in Mar 2015 provided additional powers to
police in detaining people and quelling protests.42
Kurdish Rights:Turkey’s principal human rights problem remains the Kurdish situation. While the government advanced Kurdish rights on several fronts in its first two terms, during its third term the government ignored further Kurdish demands. e Kurdish minority wants constitutional recognition, public sools’ teaing
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in Kurdish language in predominantly Kurdish regions, the acceptance of Kurdish as an official language, and the removal of the 10 percent nationwide electoral threshold that the parties need in order to gain a seat in parliament. In 2012, thousands of Kurdish activists were arrested for alleged links to the KCK. Prosecutors have used anti-terrorism laws to suppress non-violent pro-Kurdish and leist political activity and activist members, party officials, and politicians from the pro-Kurdish Peace and Democracy Party (BDP)
have all been imprisoned.43 In June 2015 parliamentary elections, the main pro-Kurdish party, e Peoples’ Democratic Party (Halkların Demokratik Partisi, HDP), surpassed the electoral threshold by geing 13 percent of nationwide votes, ushering a new page for Kurdish politics in Turkey.
Syria:ite possibly, the only bright spot in the AKP’s human rights record in its third term is foreign policy, particularly as related to Syria. e AKP government emerged as an early and strong supporter of anti-Assad efforts in Syria. By June 2015, the ensuing civil war had killed nearly a quarter million people and created about four million refugees. Turkey stepped in to provide shelter to Syrian refugees, hosting about 1.8 million refugees—almost half the total—as of July 2015. ese efforts, however—AKP’s entanglement in Syrian civil war and support of wide-ranging Islamist, anti-Assad forces—have poisoned AKP’s relations with Turkish Kurds in Turkey who support Syrian Kurdish efforts to create their own areas of control in Syria rather than fight Assad.
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Conclusion
e AKP’s impact on human rights in Turkey between 2002–2015 was mixed. e government initiated and implemented some major reforms in its first term, slowed the pace of reform during its second term and has now seemingly abandoned human rights reforms altogether in its third term. Four areas saw improvement under AKP rule: Kurdish rights, the religious freedoms of Sunni Muslims, the enlargement of the social welfare system, and the expansion of healthcare. In the process, the government broke down the bureaucracy’s resistance to government initiatives and sent the military ba to the barras.
Yet, the government did lile to improve the rights of women and Alevis and economic liberalization undermined labor rights and environmental protections. Especially in its third term, the AKP began to suppress its opposition, using formal and informal means to squel opposing viewpoints in print or on social media. Human rights gains aieved in its first term were thus eroded. While beyond the scope of this apter, these “two steps ba aer one step forward” presaged the government’s harsher cradown against human rights that was to take place in 2016.
Although it slowed down, the EU membership process had been critical for the advancement of rights in Turkey. e AKP’s introduction of policies protecting human rights oen came as a response to EU demands. Skeptics might ask to what extent was the AKP genuinely motivated by EU membership or was the EU membership process merely a platform that allowed the AKP to push for reforms that were in the party’s political interest? For example, despite longstanding EU requests for ange, the AKP took lile action on issues su as gender equality, rights for LGBT
273
individuals, and rights for Alevis—all issue areas that are unpopular among the AKP’s core constituencies.
e AKP between 2002–2015 effectively used the language of human rights and democracy to keep its broad coalition, including liberals, intact until it consolidated power. Once the party came to dominate the political space and control state bureaucracy, particularly the military, it tried to assert itself as a hegemonic power akin to the Kemalists, but with an Islamist orientation. As su, it became an obstacle for human rights and democracy. Most of the AKP long-term reforms can be directly linked to its political and ideological interest; when an issue was not in the party’s interest, it did not work to advance human rights on this issue. Worse still, as AKP policies in the third term show, it rolled ba its own progress on human rights and democracy in order to advance the party’s interests and protect its leader, Erdoğan.
274
Notes
1 I thank Hannah Coae, Edel Hughes, Brandon Green, Ramazan Kılınç, and Kate
Marshall for their comments on earlier versions of this apter.
2 Baskin Oran, “e minority concept and rights in Turkey”, in Zehra F. K. Arat (ed.),
Human Rights in Turkey (Philadelphia: University of Pennsylvania Press, 2007).
3 e major exception is Zehra F. K. Arat (ed.), Human Rights in Turkey (Philadelphia:
University of Pennsylvania Press, 2007) whi covers the first term of AKP’s
government.
4 Shadi Hamid, Temptations of Power: Islamists and New Illiberal Democracy in the
Middle East (Oxford, Oxford University Press, 2014).
5 Constitution of the Republic of Turkey,
hps://global.tbmm.gov.tr/docs/constitution_en.pdf (accessed on June 25, 2015).
6 e International Covenant on Civil and Political Rights (r. 2003), the International
Covenant on Economic, Social, and Cultural Rights (r. 2003), the Convention on the
Elimination of All Forms of Discrimination against Women (r.1985), the Convention on
the Elimination of All Forms of Racial Discrimination (r. 2002), the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (r. 1988), and
e Convention on the Rights of the Child (r. 1995). See Füsun Türkmen, “Turkey’s
participation in global and regional human rights regimes,” in Zehra F. K. Arat (ed.),
Human Rights in Turkey (Philadelphia, University of Pennsylvania Press, 2007).
7 IHD provides the most comprehensive human rights violations in Turkey in its annual
reports, www.ihd.org.tr/ (accessed on September 4, 2016).
8 www.mazlumder.org/tr/ (accessed on September 4, 2016).
9 hp://tihv.org.tr/ (accessed on September 4, 2016).
10 Margaret E. Ke and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in
International Politics (Ithaca, Cornell University Press, 2014); Zehra F. K. Arat,
275
“Conclusion: Turkey’s prospects and broader implications,” in Zehra F. K. Arat (ed.),
Human Rights in Turkey (Philadelphia, University of Pennsylvania Press, 2007).
11 Turan Kayaoglu, “Trying Islam: Muslims before the European Court of Human Rights,”
Journal of Muslim Minority Affairs vol. 34 (2014), 345–64.
12 Füsun Türkmen, “Turkey’s participation in global and regional human rights regimes;”
omas W. Smith, “Leveraging Norms: e ECHR and Turkey’s human rights reforms,”
in Zehra F. K. Arat (ed.), Human Rights in Turkey (Philadelphia: University of
Pennsylvania Press, 2007).
13 Zehra F. K. Arat, “Conclusion: Turkey’s prospects and broader implications.”
14 Ahmet T. Kuru, “e rise and fall of military tutelage in Turkey: Fears of Islamism,
Kurdism, and Communism,” Insight Turkey vol. 14 (2012), 37–57.
15 Zehra F. K. Arat (ed.), Human Rights in Turkey (Philadelphia: University of
Pennsylvania Press, 2007), 15.
16 Ilter Turan, Turkey’s Difficult Journey to Democracy: Two Steps Forward, One Step Back
(Oxford: Oxford University Press, 2015).
17 Ihsan Dagi, “Islamist parties: Turkey’s AKP in power,” Journal of Democracy vol. 19
(2008), 25–30.
18 Ramazan Kılınç, “International pressure, domestic politics, and the dynamics of religious
freedom: evidence from Turkey,” Comparative Politics vol. 46 (2014), 127–45.
19 Joost Legendijk, “Turkey’s accession to the European Union and the role of Justice and
Development Party,” in Ahmet T. Kuru and Alfred Stepan (eds) Democracy, Islam, and
Secularism (New York: Columbia University Press, 2012). Also, see Demet Y. Mousseau,
“Is Turkey democratizing with EU reforms?: an assessment of human rights, corruption
and socio-economic conditions,” Southeast European and Black Sea Studies vol. 12
(2012), 63–80.
20 hp://europa.eu/legislation_summaries/glossary/accession_criteria_copenhague_en.htm
(accessed on September 4, 2016).
21 Mary L. O’Neill, “Linguistic human rights and the rights of Kurds,” in Zehra F. K. Arat
(ed.), Human Rights in Turkey (Philadelphia: University of Pennsylvania Press, 2007).
276
22 Ibid.
23 Ramazan Kılınç, “International pressure, domestic politics, and the dynamics of religious
freedom: evidence from Turkey;” Ali Soner, “e Justice and Development Party’s
policies towards non-Muslim minorities in Turkey,” Journal of Balkan and Near Eastern
Studies vol. 12 (2010), 23–40.
24 hp://data.worldbank.org/country/turkey (accessed on September 4, 2016).
25 Edward Weisband and Sera Öner, “So near, yet so far: freedom of association and
workers’ rights,” in Zehra F. K. Arat (ed.), Human Rights in Turkey (Philadelphia:
University of Pennsylvania Press, 2007).
26 Ahmet T. Kuru, “e rise and fall of military tutelage in Turkey: Fears of Islamism,
Kurdism, and Communism.”
27 Zehra F. K. Arat, “Conclusion: Turkey’s prospects and broader implications,” 281.
28 www.hrw.org/world-report-2010/turkey (accessed on September 4, 2016).
29 Kathleen Cavanaugh and Edel Hughes, “A democratic opening? e AKP and the
Kurdish le,” Muslim World Journal of Human Rights vol. 12 (2015), 53–74.
30 Dilruba Çatalbaş, “Freedom of press and broadcasting” in Zehra F. K. Arat (ed.), Human
Rights in Turkey (Philadelphia: University of Pennsylvania Press, 2007).
31 Melih U. Erol, “estioning non-discrimination, equality, and human rights in
contemporary Turkey from the perspective of the Alevi religious community,” Muslim
World Journal of Human Rights vol. 12 (2015), 75–97.
32 Hugh Pope, “Erdogan’s decade” (2012) The Cairo Review of Global Affairs.
www.aucegypt.edu/gapp/cairoreview/Pages/articleDetails.aspx?aid=149 (accessed on
September 4, 2016).
33 Kathleen Cavanaugh and Edel Hughes, “A democratic opening? e AKP and the
Kurdish le.”
34 Access the report at www.uscirf.gov/reports-briefs/annual-report.
35 hps://freedomhouse.org/report/freedom-world/2013/turkey#.VZlTbhtViko (accessed on
September 4, 2016).
277
36 Henri Barkey, “Turkish democracy: two steps forward, two steps baward,” Harvard
International Review vol. 34 (2014), 75–8.
37 Fait Muedini, “e politics between the Justice and Development Party (AKP) and the
Gülen movement: issues of democratization, human rights abuses and rising
authoritarianism,” Muslim World Journal of Human Rights vol. 12 (2015), 99–122.
38 Batu Kinikoglu, “Evaluating the regulation of access to online content in Turkey in the
context of freedom of spee,” Journal of International Law and Technology vol. 9
(2014), 36–55.
39 hp://index.rsf.org/#!/; Also see Oray Egin, “Silence of surrender: Erdogan’s war on
independent Media,” World Affairs vol. 176 (2013), 47–56.
40 www.hrw.org/world-report/2012/country-apters/turkey (accessed on September 4,
2016).
41 Sebnem Arsu, “Turkish President says women shouldn’t be considered equals,” (2014)
The New York Times. www.nytimes.com/2014/11/25/world/europe/turkish-president-
says-women-shouldnt-be-considered-equals.html (accessed on September 4, 2016).
42 www.amnesty.org/en/latest/news/2015/03/turkey-gives-police-broad-powers-to-repress-
dissent/ (accessed on September 4, 2016).
43 Aliza Marcus, “e Kurds’ evolving strategy,” World Affairs vol. 175 (2012), 15–22.
278
Selected Bibliography
Arat, Zehra F. K. (ed.). Human Rights in Turkey. Philadelphia: University of Pennsylvania Press, 2007.
Cavanaugh, Kathleen and Hughes, Edel. “A democratic opening? e AKP and the Kurdish le” in Muslim World Journal of Human Rights vol. 12, no. 1 (2015), 53–74.
Erol, Melih U. “estioning non-discrimination, equality, and human rights in contemporary Turkey from the perspective of the Alevi religious community,” Muslim World Journal of Human Rights vol. 12, no. 1 (2015), 75–97.
Hamid, Shadi. Temptations of Power: Islamists and New Illiberal Democracy in the Middle East. Oxford: Oxford University Press, 2014.
Kılınç, Ramazan. “International pressure, domestic politics, and the dynamics of religious freedom: evidence from Turkey” in Comparative Politics vol. 46 (2014), 127–45.
Kuru, Ahmet T. “e rise and fall of military tutelage in Turkey: fears of Islamism, Kurdism, and Communism,” Insight Turkey vol. 14 (2012), 37–57.
Kuru, Ahmet T. and Stepan, Alfred eds. Democracy, Islam, and Secularism. New York: Columbia University Press, 2012.
Mousseau Demet Y. “Is Turkey democratizing with EU reforms? An assessment of human rights, corruption and socio-economic conditions” in Southeast European and Black Sea Studies vol. 12 (2012), 63–80.
Muedini, Fait. “e politics between the Justice and Development Party (AKP) and the Gülen movement: issues of democratization, human rights abuses and rising authoritarianism” in Muslim World Journal of Human Rights vol. 12 (2015), 99–122.
279
Turan, Ilter. Turkey’s Difficult Journey to Democracy: Two Steps Forward, One Step Back. Oxford: Oxford University Press, 2015.
280
8
e Politics of Human Rights in Iran
Since the Green Movement
Shadi Mokhtari and Neda Nazmi
281
Introduction
e popular aspirations of the historic 1979 Islamic revolution, and
the arges of rights violations from both within and abroad ever
since, have given rise to a spectrum of rights-based debates and
discourses in and in relation to Iran. Mass protests spurred by
accusations of election fraud in the 2009 presidential elections, and
the subsequent cradown on the so-called ‘Green Movement,’
represented a watershed moment in the rights contests of post-
revolutionary Iran. is dramatic episode in Iranian history
encompassed both heightened repression by the regime—including
detentions, systematic torture and rape of detainees, and severe
restrictions on the media—and substantial resistance—including
political contestation, mobilization, and heightened rights
consciousness by popular, opposition and civil society forces.
is apter considers the state of human rights politics and
contestation within Iran and in the Iranian diaspora since the
unraveling of the Green Movement in early 2010. It puts forth two
conclusions. First, it finds that, while the human rights paradigm has
become highly present in opposition and particularly exiled and
diaspora-based allenges to the regime, its immediate impact on the
Islamic Republic’s politics and policies since the Green Movement
has been modest. is indicates that conservatives in power have
been relatively successful in managing arges of human rights
violations deployed against the state. Second, there are clear
indications that the 2009–10 cradown and on-going repression
continue to occupy public consciousness, while simultaneously
public appetite for engaging in rights contestation has diminished
relative to the time of the Green Movement and the Khatami reform
era whi preceded it.
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Before proceeding, it is important to note that, although Iran is no
longer in the midst of a concerted cradown on an active popular
protest movement, political repression has remained at some of the
highest levels experienced since the 1980s. Even aer the election of
moderate Hassan Rouhani as president in 2013, hundreds of political
and civil society activists have been arrested or remain in detention.
Additionally, space for even limited allenges to the regime via the
formerly vibrant reformist media and activist sphere has shrunk
considerably compared to the 1997–2003 Khatami reform era and
even the first Ahmadinejad presidency. During this period, Iran has
also set dismal global records for the number of executions carried
out and the number of journalists jailed. Even the mu celebrated
women’s movement is largely in disarray with prominent activists
silenced through prison sentences, and key publications and
advocacy groups shut down.
283
e trajectory of human rights dynamics in
post-revolutionary Iran
In the lead up to Iran’s historic 1979 revolution, the Shah’s
repression—including torture and restrictions on political expression
and participation—constituted a major grievance for virtually all of
the ideologically disparate groups participating in the revolution. A
leading slogan of the revolution was “esteghlal, azadi, jomhuri-e
Islami” (independence, freedom, Islamic Republic). is slogan,
along with the inclusion of a host of civil and political rights in the
Islamic Republic’s constitution (though encumbered by many
qualifications, limitations, and contradictions), spoke to the
significance of aspirations for increased liberties and rights at that
time. Following just a few months of relative political openness, the
1980s were a decade of high levels of repression, including mass
executions of thousands of supporters of the mujahedin-e khalq and
leist groups. At this time, any significant criticism of the regime’s
repression could only be waged from abroad and it was oen done
so through the language of human rights violations, making it easy
for the regime to associate the paradigm with ‘enemies of the
revolution,’ in addition to labeling human rights a Western,
imperialist and un-Islamic framework. is le virtually no space for
explicit allenges to the regime’s repression from within the
country, mu less for the deployment of human rights discourses
internally.
e 1990s saw the emergence of ideas whi allenged the key
tenets underpinning the state’s conservative brand of Islamist
ideology. e decade saw the prominence of Islamic intellectual
Abdulkarim Soroush’s theories of diversity, tolerance, and pluralism
in Islam.1 is decade also witnessed the emergence of “Islamic
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feminism,” spearheaded from above by women related to the Islamic
Republic’s male elite and from below by activists, women’s circles,
and a general heightening of gender consciousness among women
from all social strata, religious and secular. Su currents set the
stage for the surprise landslide election of reformist Mohammad
Khatami, who campaigned and aempted to govern using a
discourse largely centered on the compatibility of Islam with notions
of rights, tolerance, citizenship and improving conditions for
women. While ‘people’s rights,’ ‘the nation’s rights,’ and ‘citizen’s
rights’ were frequently invoked, reformists in Khatami’s camp
largely steered clear of using the term ‘human rights’ for fear of the
consequences of hardliners’ arges they were furthering Western
agendas. e Khatami era was also aracterized by rising civil
society activity. Reformist publications tested the established
boundaries of tolerated criticism and women’s rights activists
undertook advocacy campaigns, including initiatives promoting
Iran’s accession to CEDAW (the U.N. Women’s Rights Convention),
and reform of the Islamic Republic’s family laws derived from Shi`i
jurisprudence. At this time, rights claims were predominately
coued in Islamic discourses. us the accomplishment of the 1990s
and early 2000s was the creation of an expanded space to redefine
rights as rooted in Islam, and the ability to talk about ‘rights
violations’ within that medium.
e government’s apparent election fraud and subsequent
cradown on public protests and opposition mobilizations following
the 2009 elections constituted a significant rollba of the space
created during the Khatami years. At the same time however, the
regime faced an unprecedented allenge to its legitimacy from four
sources: the de facto leaders of the Green Movement, including
Mehdi Karroubi and Mir Hossein Moussavi, and Islamist political
allies in the reformist camp; a handful of clerics sympathetic to their
cause; jailed political and civil society activists; and a politicized
public for large segments of whom the brutal cradown became a
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major societal grievance, prompting a new round of rights discourses
and heightened rights consciousness.2 Rights allenges were
frequently put forth by ea of these groups coued in Islamic or
revolutionary discourses, but increasingly also in a self-standing
secular way. Mir Hossein Moussavi invoked human rights directly
on several occasions and even allenged the state’s association of
the human rights paradigm with Western political agendas and
culture, writing in his statement #15:
Don’t you claim that expressions su as human rights, women’s rights, minority rights
and the like are excuses world powers hypocritically use to beautify themselves. Why
are they who are supposedly the original and primary proprietors of these values then
far from [realizing] them? Is it that they seek to taint their sool [of thought]? Why do
you curse these concepts and render them the standard for heresy? A religion that has
gied a bushel of flowers for humanity with its mild teaings whi are compatible
with human nature. God forbid, we turn it in a bushel of thorns so that anyone who has
contact with any corner of it is wounded—wounds like those our youth see in the
streets.3
Concurrently, despite hardliner’s rhetoric to the contrary, at the
popular level notions of Islam and human rights being competing
frameworks, or of human rights being nothing more than a tool of
Western power politics, were increasingly rejected. In short, the
human rights paradigm’s resonance, legitimacy, and indigenous
credentials seemed to grow. us, while the Khatami reform era
expanded the space for invoking rights but for the most part only
through Islamic discourses, the Green Movement inaugurated both
more secular formulations of human rights claims being put forth,
and more prominent use of the human rights idea by former Islamic
Republic insiders.4
286
Human rights politics since the Green
Movement
By February 2010 it was clear that security forces and regime
supporters had devised effective ways of physically preventing
people from accessing major squares, a common seing for protests.
In addition, potential organizers were either arrested or under su
strict surveillance as to render them fully paralyzed. A few months
into the Arab uprisings of 2011, Mir Hossein Moussavi, his wife
Zahra Rahnevard and Medhi Karroubi were placed under house
arrest. Fearing similar fates, dozens of prominent Islamist political
figures allied with the former candidates and reformist camp, as well
as journalists and civil society activists, le Iran for exile during the
cradown. e combination of shrinking space for domestic
allenges, and the departure of a significant number of political and
civil society activists, many of them reform-minded Islamists, moved
a new wave of political dissent coued in human rights language
abroad. While internally, human rights once again became a
discourse most political and social activists felt compelled to keep
some distance from, it became a ubiquitous feature of political and
social justice activism abroad. During this period, conservatives
continued to simultaneously co-opt and discredit the international
human rights framework. At the popular level, while the violence
and victims of the 2009–10 cradown had not been forgoen, the
impetus for rights contestation, seen at the height of the Green
Movement, had dimmed. With the passage of time, public interest
shied to everyday life, new political contests (su as the 2013
elections), and the nuclear standoff with the West.
287
Human Rights and the reform camp inside Iran
In the wake of the 2013 presidential election, the reformist camp
within Iran slowly began to regroup and, ultimately, to support the
presidential candidacy of Hassan Rouhani, with hopes of reigniting
the interrupted project of political reform. ere was a heated debate
over whether Iranians should participate or boyco the elections,
waged extensively on social media and among diaspora Iranians.
Boyco proponents pointed to the post-2009 cradown and
continued detentions of political opponents as evidence that the
ruling regime was simply too morally bankrupt to make engagement
worthwhile. Ultimately, however, 72 percent of Iranian citizens
turned out to vote, electing Hassan Rouhani.
In his election campaign Rouhani took up familiar reformist
themes, including: government accountability, strengthening the rule
of law (within the framework of the Islamic Republic’s constitution),
strengthening the voice of the people in politics, and greater
realization of rights. In the realm of rights, he was most comfortable
referring to women’s rights, the rights of Iran’s ethnic and religious
minorities, and the notion of ‘citizenship rights.’ ese were invoked
in mostly general terms, while occasionally freedom of thought,
expression and criticism were mentioned. When pressed in several
instances by audiences anting “political prisoners must be freed,”
Rouhani promised to work to free political prisoners, including the
Green Movement’s de facto leaders remaining under house arrest
whom he referred to explicitly by name. Videos of Election Day
celebrations in the streets included ants of “Rouhani remember,
Moussavi must be [freed]” and “My martyred brother, I reclaimed
your stolen vote.” For many reformers—inside Iran and in exile—the
very fact hardliners allowed Rouhani to run and to win was directly
related to them feeling the weight and potential peril of the popular
discontent produced by the 2009–10 cradown.
288
Despite the hope placed in his presidency, Rouhani’s first two
years were marked by only tentative and token steps towards
improving rights conditions, with few tangible gains. In October
2013, during his first 100 days in office, Rouhani put out a “Dra
Charter of Citizens’ Rights.”5 e arter included some overlap with
conventional human rights documents, namely in its recognition of
certain due process rights, freedom of expression and press, and a
host of social and economic rights. Women’s rights were also
mentioned, but largely in relation to their social and economic rights
and with virtually no mention of legal discrimination stemming
from Shari`a-based laws operating in the country. e Dra Charter
offered lile by way of concrete legal protections, and, aer
presenting a brief opportunity for the embaled reformist media and
civil society to once again safely take up rights issues, it faded from
the political scene.
Beyond the Dra Charter, Rouhani took up human rights-and
women’s rights-related themes from time to time, but rarely in any
sustained way. Soon aer his election some prominent jailed
activists su as Nasrin Sotoudeh were freed. He made statements
contradicting Khamenei’s assertions of traditional fiqh notions of
complementarity of men and women’s duties and rights, by
speaking of gender equality (even using the hashtag #genderequality
in a tweet) in relation to women’s participation in the public sphere
and professional life. When faced with the same ants of “political
prisoners must be freed” at post-election speees, he has urged his
supporters to remain patient, signaling at the very least that he
retained some commitment to the issue. Within his administration,
Shahidokt Molaverdi, who Rouhani appointed his Vice President for
Women’s Affairs, has oen been highly vocal in her allenges to
conservatives, largely in relation to hejab policing and the presence
of women at sporting events. She has also advocated for women’s
social and economic rights, including combating poverty and
homelessness. In the summer of 2015, Rouhani gave a spee to the
289
Judiciary urging it to cooperate with him in pushing for a law to
finally define what constitutes political crimes; a definition whi he
asserted should follow the example of the first Shi`a Imam, Imam
Ali, by tolerating even the most stinging verbal criticism as long as
there was no violence deployed.6 Su stances taken by Rouhani can
be viewed at best as a broad endorsement of the spirit of upholding
certain rights, but fall short of a willingness to invest substantial
political capital to guarantee them.
To date, most reformist allies have given Rouhani the benefit of
the doubt, assuming he has had lile oice but to sideline the
domestic political reform agenda in order to concentrate his political
capital on bringing a deal on the nuclear issue to fruition. Comments
on the international stage by his popular Foreign Minister Javad
Zarif denying the existence of political prisoners and politically-
motivated executions in Iran, and insisting that Iran’s human rights
conditions are not particularly worse than elsewhere7, as well as a
2014 assertion by Rouhani himself that in Iran there are no jailed
journalists, have been viewed by many allies against this badrop.
While giving rise to some criticism, the statements are widely
interpreted by reformist allies as the Rouhani administration’s
strategy to tread lightly on rights issues on the international stage in
order to maintain hardliners reluctant acquiescence to a nuclear
arms deal. Conservative cleric Ayatollah Mokarem Shirazi and even
Khamenei himself have warned that, once nuclear negotiations have
been concluded, Western actors will want to bring forth the issue of
human rights, but that an arms deal will not lead to any opening up
of political space. e reform camp and even many Iranian human
rights activists, however, oose to believe that geing the
distractions and excuses presented by the nuclear energy standoff
out of the way is a prerequisite for again addressing rights issues. A
recent study of Iranian civil society activists reflected overwhelming
support for the conclusion of a deal with the West on the nuclear
issue and the removal of sanctions, whi some viewed as
290
contributing to social and economic rights violations.8 Some exiled
activists belonging to the reformist camp at times even lobbied
Western officials to refrain from inserting human rights into the
negotiations.
A small group of dissident clerics also continued to allenge
hardliners in power, oen going farther than Rouhani, and most
reformists, in this regard. is cohort, led by Ayatollah Bayat
Zanjani, Ayatollah Ali Mohammad Dastgeib and Grand Ayatollah
Mousavi Ardabili, have made stinging critiques of the government
revolving around state repression and denial of rights. A few
examples are instructive of their discourse. Following his bold
indictments of the 2009 cradown, Ayatollah Bayat Zanjani has
spoken out against what he has called the “the political treatment”
and targeting of workers, ruling hardliners’ limiting of “God-given
freedom”, the misguided view that there is a contradiction between
human rights and Islam, and the authorities’ failure to implement
rights provisions laid out in the Islamic Republic’s constitution. In
October 2013, Ayatollah Ali Mohammad Dastgeib targeted not only
the state’s repression, but also Rouhani’s reluctance to take up the
plight of political prisoners:
We say … Dr. Hasan Rouhani …, other people and I, based on the slogans that we use,
conditionally voted for you. Our condition first of all was that you try to free political
prisoners particularly Mr Mousavi and Karrubi. People who were against this view
voted for other candidates. You need to try your best as you see fit. Even if you need to
go to sources of emulation and ask for their views based on shari`a … If you evaluate it
from the standpoint of shari`a … the issue is completely clear.9
In December 2012, Grand Ayatollah Mousavi Ardebili addressed
conservative discourses discrediting the human rights idea:
Today it is a duty of the ulama to incorporate discussion and the realization of human
rights in their solarly undertakings, placing it at the fore of and expanding it through
ijtihad and jurisprudence and in this way supporting modern humanity. It is incumbent
upon speakers, writers and Islamic missionaries with a correct understanding and
expression of human rights issues to not only resolve the misgiving about any conflict
between human rights and Islam but also to highlight the significant role of religion in
291
promoting all aspects of human rights. It is the duty of those at the fore of public
opinion to promote rights issues and human rights until they become common values of
and serious demands in Islamic societies. It is the duty of the rulers and those running
Islamic societies to follow human rights’ laws and accepted standards … to make a
beer world for the Islamic ummah and create a more beautiful face for Islamic
societies and government in the world. Let us believe not only that human rights values
are not imported or imposed but rather it is our own great heritage.10
ough these dissident clerics’ numbers are small, their willingness
to continue to employ rights discourses, and pose relatively bold
rights-based allenges to a self-styled Islamic state built around the
“Rule of the Jurist” thesis, remains a thorn in the side of the
hardliners in power, and lends an air of religious legitimacy to the
rights claims against the regime.
e state of human rights and women’s rights activism
in Iran aer the Green Movement
During the life of the Islamic Republic, organizations whi could be
considered the Iranian corollary to independent domestic human
rights and women’s rights organizations have always been forced to
navigate a precarious terrain traversing domestic and international
politics. Typically, they have been small groups, modestly funded by
members and perpetually faced with the prospects of being shut
down and their leadership subjected to prison sentences. Although
the targeting of these groups began in the first Ahmadinejad
presidency, the cradown on the Green Movement further shrunk
their ability to pursue rights activism beyond safer areas, su as
ildren’s rights and the rights of the disabled. Instead the rights
related work being done has largely gone underground, sometimes
facilitated by foreign funding received through informal annels.
To the extent that they are able to operate, these groups now largely
focus their efforts on regaining the ground lost since the 2009
elections rather than expanding on past gains. is is particularly
292
true of the women’s rights groups, whi had previously made
significant gains in the areas of violence against women, custody
rights for mothers aer divorce, and raising the legal age of
marriage. Now, they limit their activities to arguably less ambitious
fights over hijab patrolling or women’s aendance at sporting
events. It is also evident in the website of the Defenders of Human
Rights Center, an NGO created by now exiled Nobel Peace Prize
winner Shirin Ebadi, whi devotes most of its content to
allenging current repression, including the imprisonment of its
own members. As Ali Fathollah-Nejad has argued, not only have
su advocacy groups been further weakened by the excuse for
securitization presented by American threats of military
confrontation but they have also suffered from the stringent
economic sanctions imposed in recent years.11 Despite also facing
considerable repression, in 2015 the labor movement remained the
most visible and perhaps most active segment of Iranian civil
society, staging protests with relatively sizable numbers of
participants.
In the years preceding the Green Movement, while there were few
domestic civil society organizations with ‘human rights’ in the title
of their organizations, there was a steady rise in the number of
individuals who self-identified as ‘human rights defenders,’
‘women’s rights defenders,’ ‘human rights activists,’ ‘women’s rights
activists,’ or ‘human rights lawyers.’ At the same time, the post-2009
election cradown brought ‘the political prisoner’ to the fore of
public discourse and consciousness. A number of individuals
belonging to these oen overlapping categories came to acquire
considerable status, becoming household names and the subject of
political conversation among disaffected citizens, particularly in the
Middle and educated classes. Members of this group—including
Nasrin Sotoudeh, Bahar Hedayat, Narges Mohammadi and
Abdolfaah Soltani—frequently highlighted the injustices stemming
from the regime’s repression, invoking the language of human rights
293
in numerous public leers from jail and in public statements and
interviews upon their release. For example, in December 2014 Soltani
and four other political prisoners put out a statement to
commemorate Human Rights Day.12 Both the presence of the
dissident ‘human rights activists’ within political discourse, and
societal reverence and concern for the plight of the political prisoner,
have endured beyond the Green Movement.
Press freedom has also declined during the current era, with the
state’s tight grip on journalism and journalists leading to the decline
of a sector whi led the reform movement during the Khatami
presidency. Reformist publications that pushed the limits of tolerated
spee, su as Mardom Emrooz or Zanan-e Emrooz (both a
women’s rights and reformist publication), have been shut down.
Only a few reformist publications, su as Etemad and Sharq,
remain in circulation. e clampdown on su publications has been
particularly devastating because, as Benjamin Staursky has noted,
more than the underdeveloped NGO sector, publications with
women’s rights and reform agendas have served as the springboard
for rights activism in post-revolutionary Iran.13 us, as has been the
case since the early 2000s, in the face of repression, expression of
political dissent and rights demands have largely moved online. To
the extent that they can break barriers of bloed websites and
turtle-paced internet speeds, Iranians have unrestricted opportunities
for expression and access to information online. Beyond the
thousands of political and activist blogs, publications born out of the
Green Movement continue to be available electronically. As
elsewhere, social media including Facebook and Viber serve as an
important medium for transmiing everything from news of the
regime’s human rights violations to jokes with sociological insights
into rights consciousness.
294
Invoking human rights from abroad: exiled activist,
expatriate and diaspora discourses on human rights
Before the Green Movement, human rights had become a language
widely deployed by diaspora Iranians who actively opposed the
Islamic regime in power. Members of the Mujahedin-e Khalq,
monarists and leists all deployed human rights discourses in
highly politicized ways to aa the moral legitimacy of the Islamic
Republic. For many adherents of these ideologies, there was lile
difference between Iran’s Islamists, whether they identified as
hardliner or reformer. us, these groups refused to engage with
Islamic reformers and, at the same time, Islamic reformers (as well as
secular rights activists operating within the country) preferred to
keep their distance from these groups in order to evade arges of
conspiring against the regime. ese dynamics produced a glaring
distinction between the cautious, incremental, and oen religiously-
based rights claims being put forth within Iran and the loud, hyper-
politicized and oen sensationalized human rights discourses being
waged abroad.
With the considerable barriers to activism in place following the
2009 elections, combined with the large number of Islamist
reformers and civil society activists who went into exile in its
aermath, a significant amount of internally-based activism moved
abroad. Tapping into their networks inside the country (and now
abroad), these exiled political and civil society activists aempted to
spearhead initiatives to put pressure on conservatives in power and
aid fellow activists still operating within Iran. ese activists who
regularly identified as ‘human rights defenders’ and/or invoked the
language of human rights in interviews, worked on initiatives su
as compiling and updating information about the numbers, status
and conditions faced by political prisoners in Iranian jails. Exiled
Islamists, many of whom previously enjoyed regime insider status,
began meeting and collaborating with a new generation of secular
295
diaspora Iranians who, having spent formidable years abroad, did
not have the same highly arged ideological commitments of their
parents’ generation.
us, the post-2009 election era produced some fascinating
developments in diaspora-based human rights discourses and
advocacy. Namely, it has given rise to forms of diaspora human
rights activism that are typically less politicized, less polarizing, less
ideological, more inclusive and more closely aligned with what has
come to be known as professional human rights advocacy
internationally. In line with the flurry of rights activism spurred by
the 2009 cradown and the Green Movement,14 these initiatives
tend to bridge longstanding secular–Islamist and internal–diaspora
divides. A notable example of this type of an initiative is the
International Campaign for Human Rights in Iran, directed by
former Human Rights Wat Iran researer Hadi Ghaemi. is
advocacy group with its ties to both Iranian-Americans and recent
reformist exiles, as well as impressive connections with activists and
victims inside Iran, is non-ideological and successfully incorporates
religious and secular actors and issues into its work. Despite these
impressive developments, the degree to whi su foreign-based
human rights initiatives have impacted the behavior of the regime,
though difficult to gauge, appears modest to date.
One area in whi the human rights politics of the Iranian
diaspora has had a more manifest impact has been in the realm of
human rights norm diffusion. Human rights and political activists
living abroad oen diffuse human rights norms and discourses inside
Iran’s borders via foreign-based (and oen Western government
funded) Farsi language media. roughout 2012 and 2013, in its
“Sixty Minutes” newscasts, BBC Persian frequently featured news
and interviews in whi the human rights frame was used,
sometimes on several separate occasions in the same hour-long
broadcast. e frame could appear in news of the findings of a U.N.
or NGO human rights report, BBC correspondents’ own reporting on
296
the plight of political prisoners, restrictions on press freedom or the
state of women’s rights. ese reports are frequently followed by an
interview with an Iranian human rights activist inside Iran or in
exile. e U.S.-funded Radio Farda even broadcasts a weekly
program called “Human Rights” in whi the host largely ronicles
news of recent detentions, releases or summons of political
prisoners, executions and limits on press freedom among other
human rights developments and features interviews with victims’
families. Manoto TV, a London-based satellite TV annel also
includes human rights reporting in its news coverage and regularly
takes up human rights related topics in its social programming. In
light of the severe restrictions and state control of domestic
television annels, su foreign-based television and to a lesser
extent radio programs enjoy large audiences inside Iran. For
example, in Mar 2012, BBC Persian announced that its TV
audience has doubled from three million to six million viewers in
Iran since 2009, noting that the numbers are likely deflated due to
the reluctance of many to admit to a surveyor that they wat
banned coverage, and the fact that the number does not include their
internet audience.15 Another avenue for human rights norm
diffusion has been through diaspora-produced songs addressing the
plights of political prisoners, Iran’s executions, or the Islamic
Republic’s repression more broadly. Due to restrictions on pop music
following the revolution, music produced in the diaspora has always
been widely consumed through underground sales inside Iran.
Hardliner/conservative responses to human rights
allenges
Conservatives in power continue to take a variety of contradictory
positions on the human rights paradigm and arges of human
rights violations waged against them. e most prevalent discourse
297
simultaneously assert both that human rights are being fully
respected and realized in the Islamic Republic and that international
human rights allenges are baseless because they are rooted in
Western political interests. Human rights allenges are labeled
Western political tools (abzarha-ye gharbi) or Western propaganda
(tablighat`e ghrabi). ey also arge human rights allenges with
undermining Islamic values and the foundations of the Islamic
Republic, highlighting, for example, gay rights as demonstrative of
the incompatibility of the framework with Islamic mores.
ey further aempt to delegitimize human rights by pointing to
violence or discrimination in Western countries. For example,
compare Iran’s willingness to close down the Kahrizak prison, where
some of the worst cases of post-2009 election torture and deaths
surfaced, to the U.S.’ unwillingness to close the Guantanamo Bay
detention facility.16 Additionally, they almost exclusively respond to
international human rights critiques, rather than those made by
Iranians within the country or abroad, finding those allenges
easier to dispose of through anti-imperialist discourses and the
highlighting of Western double standards. For example, in reference
to the criticisms put forth by the U.N. Special Rapporteur for Iran,
Mohammad Javad Larijani, the head of the judiciary’s Human
Rights Commiee, puts forth a favorite conservative refrain:
We are not against the Special Rapporteur system. In fact, we support a non-
discriminatory Special Rapporteur system and were among the founders of the system
at the United Nations … We consider the designation of a Special Rapporteur [for Iran]
invalid. Westerners have friends in the region who have not held elections even once, or
in Bahrain, the people protest for fair elections, but no one is concerned about them.17
Internal incidents, whi activists label as human rights violations,
are oen blamed on foreign intelligence and sabotage. For instance,
when a series of acid aas took place in Esfahan in the fall of 2014,
some conservative officials aributed the incidents to British
intelligence or other “foreign hands.”18 ey also defamed human
rights critics abroad through state-run or affiliated media. In one
298
example, state television aired fabricated news that Masih Alinejad
who had spearheaded the “My Stealthy Freedom” Facebook
campaign featuring pictures of women without a hijab in Iran, had
been raped by three men in front of her son. In another case, a
conservative allied newspaper reported that WikiLeaks had revealed
that Ahmad Shaheed, the U.N. Special Rapporteur for Iran, had
received funding from Saudi Arabia—a report that WikiLeaks
quily denied.
roughout the life of the Islamic Republic, while conservatives
and hardliners aempted to delegitimize human rights claims as
foreign and a product of Western political agendas, they felt enough
of the normative force of international human rights criticisms to
create a number of ‘human rights’ institutions with the clear intent
to co-opt the framework. e Islamic Human Rights Commission
created in 1995, the Judiciary’s Human Rights Council created in
2005, and the Parliament’s Human Rights Commiee created in 2008
are institutions closely linked to the state whi have been designed
to manage and co-opt the human rights frame, with occasional signs
of some (mainly the Islamic Human Rights Commission) developing
more independent institutional cultures. e Judiciary’s Human
Rights Council for example was comprised of the Interior Minister,
Intelligence Minister, the Aorney General and the Foreign Minister.
In 2014, it held a series of “Expert Conferences on Human Rights”
with themes whi included “e rights of the accused” and
“promoting human rights.”19 While su window-dressing is typical
of authoritarian regimes’ aempts to co-opt the human rights
framework, these measures are minimalist in nature compared to
other authoritarian contexts. Perhaps this is reflective of the regime’s
sense that the human rights allenges it faces are manageable and
currently pose lile threat.
Popular rights consciousness and contestation
299
In any society, the degree to whi citizens come to view themselves
as rights-bearing, adopt the view that their rights or other
individuals’ rights are being violated, and find the violation of theirs
or others’ rights so unjust that it warrants engaging in public
contention is in constant flux. In the aermath of the 2009 Iranian
presidential elections, rights claims put forth by Green Movement
leaders, victims, and sympathetic clerics all infused Iranian society
with heightened rights consciousness. is gave impetus to
allenges to the state’s excesses. e Green Movement’s
incorporation of women’s rights, religious minority rights, and social
and political rights further expanded the scope of this rights
consciousness.
Ascertaining the precise level of rights consciousness and rights
subjectivities of Iranians since the Green Movement, however, is a
more difficult task. On the one hand, it is natural that, with the
passage of time, the population did not maintain the same intense
politicization and urgency to reclaim lost rights as it had in the
summer of 2009. With months turning into years, the demands of
everyday life and survival (particularly under sanctions), and the
emergence of new political dramas, su as the 2013 elections or the
nuclear standoff with the West, came to dominate the public’s
aention. It became easy to push aside the emotions whi
motivated political contestation and rights claims. Mir Hossein
Mousavi himself seemed to have foreseen the need for the
population to return to the demands of life and survival when he
stated in 2010 that “Resistance is a holy endeavor, but it is not
perpetual. What is perpetual is life.”20 Further, while the widespread
human rights frame in diaspora-based discourses and media likely
results in considerable human rights norm diffusion and helps to
retain the regime’s repression within public consciousness, this, is
not necessarily reflective of popular views inside Iran. It may be that
those who le Iran in 2009 remain immersed in the events that led to
their exile, while Iran’s population has to a greater extent moved on.
300
Finally, given their traumatic experiences with repression, violence,
and war in the 1980s, coupled with the violent turn of many of the
Arab world’s 2011 uprisings, Iranians have signaled a willingness to
coexist with hardliners’ repression while continuing to seek the only
avenue for ange that does not carry with it a substantial risk of
being subject to state violence, namely: pursuing incremental rights
gains through continued support for the Islamist reform project.
At the same time, the fact that protesting populations have
retreated from Tehran’s streets does not mean that a significant—
even if dormant—rights consciousness does not endure. To the
contrary, there are many indications that the 2009 cradown and
ensuing state of repression remains a widespread grievance within
popular political consciousness. is awareness can be seen in the
ants demanding the release of Mousavi, Karroubi and ‘the political
prisoner’ whenever opportunities for mass public gatherings surface.
is was seen in the street celebrations following Rouhani’s 2013
election victory and even the announcement of a nuclear agreement
between Iran and world powers in July 2015, whi led again to
videos of crowds anting “Moussavi, Karroubi, must be freed.”
What cannot be seen may serve as an even beer indication of the
extent to whi grievances continue to be understood as rights
violations. As Asef Bayat’s analysis of street politics and the political
street in the contemporary Middle East makes clear, in authoritarian
seings grievances are expressed, and resistance takes shape, not in
formal public gatherings su as protests or organized meetings, but
in the conduct of everyday life’s interactions. Bayat calls this the
expanding public sphere, including within this site everything from
street vendors, corner grocers, taxicabs, or other places where people
informally interact.21
is analysis sheds important light on segments of the population
whi have not forgoen the 2009–10 cradown and whi
continue to experience the diffusion of human rights norms and
discourses via foreign-based and social media. eir rights
301
consciousness and the willingness to contest rights may simply be
dormant until a safer opening for contention presents itself or a new
incident of repression serves as a spark. e regime’s aempts to
discredit human rights, human rights allenges, and human rights
advocates are staples of authoritarianism in the region. is carries
significant weight mainly with the regime’s ideological support base
while the minimalist state institutions created to co-opt the human
rights framework are largely for foreign consumption. Neither is
likely to detract from the increased acceptance of the notion of
human rights among a sizable segment of the population, whi
holds deep grievances against the government and its repression.
302
Conclusion
As an enduring legacy of the Green Movement, the language of
human rights has become a key fixture of opposition and civil
society discourses allenging a range of policies and actions of the
state in Iran. While being more widely deployed by exiled and
diaspora figures, the human rights framework has also increased its
domestic presence and legitimacy in the Islamic Republic. e fact
that so many highly regarded Iranian political and civil society
figures self-identify as ‘human rights activists’ is reflective of a
normalization of the human rights paradigm. is has come to be
largely unencumbered by questions of Western double-standards,
cultural imposition and Islamic authenticity whi have, in the past
oen produced ambivalence about human rights among significant
segments of the population. Similarly, the continued centrality of
‘the political prisoner’ within public consciousness serves as a
constant reminder of the regime’s repression, while providing
frequent opportunities to invoke human rights, either through
religious analogy or in a more self-standing and secular manner. At
the same time, the dynamics set in motion by the Green movement,
including the wave of exiles produced by the cradown, have
contributed to a significant transformation of diaspora human rights
discourses and activism. Iranian diaspora discourses can be
considered increasingly more inclusive, both in its range of rights
recognized and its ability to traverse religious–secular divides, as
well as being more professional and depoliticized in its tenor. ese
developments may pave the way for potentially more serious human
rights allenges to the regime being waged from abroad in the
future.
303
Despite these gains, the future of human rights contestation in
Iran is uncertain. Organized human rights and women’s rights
activism and social movements inside the country have been forced
to retreat. Additionally, there are limits to the activism that has
moved abroad or online. While a case for relatively high levels of
rights consciousness can be made, there are few indicators that there
is an appetite for mass public contention in the name of claiming
rights in the present moment. Further, other than their acquiescence
to the Rouhani presidency, whi itself has yet to bear any fruit, to
date the human rights allenges posed to the ruling Islamist regime
appear to have had lile tangible impact on the country’s political
practices. Finally, the standoff with the West over the nuclear issue
provided the regime with ample excuse for securitization of the
state, further weakened Iran’s fledgling civil society, and produced
social and economic rights violations. One can only hope that once
that issue is resolved, Iran’s reformers and activists will find
themselves in an expanded space to further their rights agenda.
304
Notes
1 Shadi Mokhtari, “e Sear for Human Rights Within an Islamic Framework in Iran,”
The Muslim World vol. 94, no. 4 (October 1, 2004): 469–79, accessed September 4, 2016,
doi:10.1111/j.1478-1913.2004.00069.x.
2 Shadi Mokhtari, “‘is Government is Neither Islamic nor a Republic’: Response to the
2009 Post-election Cradown,” in Power and Change in Iran: Politics of Contention and
Concilliation (Bloomington, IN: Indiana University Press, 2016), 251–82.
3 Mir Hossein Mousavi, “Statement Number Fieen” (June 16, 2010).
4 For a discussion of the secularization of political discourse spurred by the Green
Movement see Farhad Khosrowkhavar, “e Green Movement: Democratization and
Secularization from Below,” in Civil Society and Democracy in Iran (New York:
Lexington Books, n.d.), 39–77.
5 “Ahmed Shaheed English Translation of Dra Citizenship Rights Charter,” accessed
August 26, 2015, hp://shaheedoniran.org/english/sources/documents/citizenship-
rights-arter/.
6 “Hassan Rouhani Calls for Distinguishing between Political Crimes and Security
Crimes,” BBC Persian, January 28, 2015, accessed September 4, 2016,
www.bbc.com/persian/iran/2015/06/150628_l39_rowhani_political_crimes.
7 “Zarif in the Austrian Parliament: In Iran We Do Not Have Politically Motivated
Executions,” accessed July 16, 2015, www.radiofarda.com/content/f10-iran-austria-zarif-
parliament-human-rights-executions/25303031.html.
8 “High Hopes, Tempered Expectations: Views from Iran on the Nuclear Negotiations”
(International Campaign for Human Rights in Iran, June 2015), accessed September 4,
2016, www.iranhumanrights.org/wp-content/uploads/Briefing-ICHRI-
NuclearNegotiations-June2015.pdf.
9 “Ayatollah Seyed Ali Dasgheib’s Visit with Reformers in Fars Province,” Tribun-E
Zamane, November 5, 2013.
305
10 “e Issue Is Human Dignity and Faith-Based Rights,” December 27, 2012, accessed
September 4, 2016,
www.jamaran.ir/fa/n23361/%D8%B3%D8%B1%D9%88%DB%8C%D8%B3_%D9%87%D8%A
7%DB%8C_%D8%A7%D8%B5%D9%84%DB%8C/%D8%AC%D8%A7%D9%85%D8%B9%D9
%87/%D9%BE%DB%8C%D8%A7%D9%85_%D8%AD%D8%B6%D8%B1%D8%AA_%D8%A2
%DB%8C%D8%AA_%D8%A7%D9%84%D9%84%D9%87_%D8%A7%D9%84%D8%B9%D8%B
8%D9%85%DB%8C_%D9%85%D9%88%D8%B3%D9%88%DB%8C_%D8%A7%D8%B1%D8%
AF%D8%A8%DB%8C%D9%84%DB%8C.
11 Fathollah-Nejad, Ali, “Iran’s Civil Society Grappling with a Triangular Dynamic,” in
Civil Society in Syria and Iran: Activism in Authoritarian Contexts, Paul Aarts and
Francesco Cavatorta eds, (Boulder, CO: Lynne Rienner Publishers, 2013).
12 “Statement of Five Jailed Political Prisoners on the Occasion of International Human
Rights Day,” Saham News, accessed August 27, 2015,
hp://sahamnews.org/2014/12/271783/.
13 Benjamin Staursky, The Promise and Perils of Transnationalization: NGO Activism
and the Socialization of Women’s Human Rights in Egypt and Iran, Routledge Advances
in International Relations and Global Politics 102 (New York: Routledge, 2013) 129.
14 Khosrowkhavar, “e Green Movement: Democratization and Secularization from
Below.”
15 “BBC Persian Audience Doubles to Six Million.” BBC (February 29, 2012) accessed
September 4, 2016, www.bbc.co.uk/news/world-middle-east-17200494.
16 “Mohammad Javad Larijani in the Expert Gathering of the Human Rights Commiee:
We Do Not Have a Problem with a Non-Discriminatory Human Rights Special
Rapparteur,” accessed July 16, 2015, hp://dadiran.ir/Default.aspx?
tabid=2351&articleType=ArticleView&articleId=75636.
17 Ibid.
18 “Maslahi: British Intelligence Is Behind Esfahan’s Acid Aas,” October 30, 2014,
www.bbc.com/persian/iran/2014/10/141030_nm_acid_aa_moslahi_isfahan; “What
Do Iranian Officials Say About Esfahan’s Acid Aas,” accessed August 27, 2015,
www.bbc.com/persian/iran/2014/10/141021_nm_acid_aas_isfahan_authorities.
306
19 “e Sixth Expert Conference on Human Rights Was Held,” accessed July 16, 2015,
www.bibaknews.com/%D8%B5%D9%81%D8%AD%D9%87-%D8%A7%D9%88%D9%84-
%D8%B9%D9%85%D9%88%D9%85%DB%8C/%D9%85%D9%87%D9%85%D8%AA%D8%B1%
DB%8C%D9%86%E2%80%8C%D8%B9%D9%86%D8%A7%D9%88%DB%8C%D9%86/374574-
%D8%B4%D8%B4%D9%85%DB%8C%D9%86-%D9%86%D8%B4%D8%B3%D8%AA-
%D8%AA%D8%AE%D8%B5%D8%B5%DB%8C-%D8%AD%D9%82%D9%88%D9%82-
%D8%A8%D8%B1%DA%AF%D8%B2%D8%A7%D8%B1. “Fih Expert Gathering on
Human Rights with the Topic of ‘Rights of the Accused,’” accessed July 16, 2015,
www.yjc.ir/fa/news/4935775/%D9%BE%D9%86%D8%AC%D9%85%DB%8C%D9%86-
%D9%86%D8%B4%D8%B3%D8%AA-%D8%AA%D8%AE%D8%B5%D8%B5%DB%8C-
%D8%AD%D9%82%D9%88%D9%82-%D8%A8%D8%B4%D8%B1-%D8%A8%D8%A7-
%D9%85%D9%88%D8%B6%D9%88%D8%B9-%D8%AD%D9%82%D9%88%D9%82-
%D9%85%D8%AA%D9%87%D9%85.
20 Mir Hossein Mousavi, “Statement Number irteen.”
21 Asef Bayat, Life as Politics: How Ordinary People Change the Middle East (Redwood
City, CA: Stanford University Press, 2010), 11–14.
307
Selected Bibliography
Aarts, Paul, and Francesco Cavatorta, eds. Civil Society in Syria and
Iran: Activism in Authoritarian Contexts. Boulder, CO.: Lynne
Rienner Publishers, 2013.
Abbasgholizadeh, Mahboubeh. “‘To Do Something We Are Unable to
Do in Iran’: Cyberspace, the Public Sphere, and the Iranian
Women’s Movement.” Signs vol. 39, no. 4 (June 1, 2014): 831–40.
doi: 10.1086/675722.
Ghamari-tabrizi, Behrooz. “Women’s Rights, Shari`a Law, and the
Secularization of Islam in Iran.” International Journal of Politics,
Culture, and Society vol. 26, no. 3 (September 2013): 237–53. doi:
hp://dx.doi.org.proxyau.wrlc.org/10.1007/s10767-013-9143-x.
Hashemi, Nader, and Danny Postel, eds. The People Reloaded: The
Green Movement and the Struggle for Iran’s Future. Brooklyn,
NY: Melville House Pub, 2010.
Hoodfar, Homa, and Fatemeh Sadeghi. “Against All Odds: e
Women’s Movement in the Islamic Republic of Iran.”
Development vol. 52, no. 2 (June 2009): 215–23. doi:
hp://dx.doi.org.proxyau.wrlc.org/10.1057/dev.2009.19.
Jahanbegloo, Ramin, ed. Civil Society and Democracy in Iran. Global
Encounters: Studies in Comparative Political Theory. Lanham,
MD: Lexington Books, 2012.
Khosrowkhavar, Farhad. “e Green Movement: Democratization
and Secularization from Below.” In Civil Society and Democracy
in Iran, 39–77. New York: Lexington Books, n.d.
Kurzman, Charles. “e Arab Spring: Ideals of the Iranian Green
Movement, Methods of the Iranian Revolution.” International
Journal of Middle East Studies vol. 44, no. 1 (February 2012): 162
308
–5. doi:
hp://dx.doi.org.proxyau.wrlc.org/10.1017/S0020743811001346.
Mokhtari, Shadi. “e Sear for Human Rights Within an Islamic
Framework in Iran.” The Muslim World vol. 94, no. 4 (October 1,
2004): 469–79. doi: 10.1111/j.1478-1913.2004.00069.x.
Mokhtari, Shadi. “‘is Government Is Neither Islamic Nor a
Republic’: Response to the 2009 Post-Election Cradown.” In
Power and Change in Iran: Politics of Contention and
Concilliation. Bloomington, IN: Indiana University Press, 2016.
Osanloo, Arzoo. The Politics of Women’s Rights in Iran. Princeton,
NJ: Princeton University Press, 2009.
Staursky, Benjamin. The Promise and Perils of
Transnationalization: NGO Activism and the Socialization of
Women’s Human Rights in Egypt and Iran. Routledge Advances
in International Relations and Global Politics 102. New York:
Routledge, 2013.
309
9
Narrating Law
Israel and the Occupied Territories
Kathleen Cavanaugh
310
Introduction
e case of Israel–Palestine is best aracterized as a ‘metaconflict,’1
enveloping not one, but two conflicts.2 ere is the conflict itself, one
based on a question of territorial control that has, to date, claimed
6,942 Palestinians and 1,127 Israeli victims (whi includes 350
members of the security forces).3 ere is also a conflict about the
nature of the conflict; narratives and counter-narratives wrestling for
the hegemonic control on how the history of the Israeli-Palestinian
conflict is told—a Rashômon effect.4
Explaining the badrop to the conflict in Israel and the Occupied
Territories is to constantly engage in the push and pull of these
distinct and oen conflicting historical narratives that inform (and
underpin) how international law has been enlisted to support (or
deny) competing claims to territory. For Israelis, land claims to
Palestine are based on religious, historical and cultural preservation
arguments,5 and in undertaking military operations, they argue that
they are exercising their right of self-defense. Palestinians argue that
they have territorial entitlement over the land where they have lived
for centuries, and in exercising a right to resist, they are in pursuit of
their legitimate right to self-determination.6
Creating a memory of state has become critical to the state-
building project for both Israelis and Palestinians. As Refaat Alareer
has reflected, “[s]ometimes a homeland becomes a tale. We love the
story because it is about our homeland and we love our homeland
even more because of the story”.7 Within official Israeli state
discourse, one aspect in constructing that story has been to allenge
Palestinian national identity (and therefore the legitimacy of claims
to territory). As I have noted elsewhere, “[e]ndeavors to allenge
the rootedness of the Palestinian national identity have become part
311
of the ‘official history’ of the state. e intent is clear; de-link the
peoples from the territory (and, therefore, their self-determination
claims) by suggesting an imagination of community.”8 Challenging
Palestinian national identity, therefore, serves two purposes. It
reinforces Israel arguments that at the time Israel seized the territory
it was sui generis.9 Arguing an imagination of community also
serves a second critical function: it allows Israel to shed its status as
occupier.
Su historical resurfacing propels certain ‘truths’ whilst
discarding other (and oen conflicting) aspects or accounts that
allenge the official state narrative. e significance of this
resurfacing becomes clear as we turn to the political struggle over
how (and what) international legal regimes apply to the Occupied
Territories. While Israeli state policies and practices give rise to a
number of issues that engage the international legal regimes, it is the
Israeli selement policy that so “dramatically expose[s] the
dissonance between government policies and the formal legal
framework of belligerent occupation.”10 It is also where the religious,
historical and cultural preservation arguments converge.
is apter will, therefore, examine how the historical-legal
contestations over Israel’s occupation of the West Bank and Gaza
shape the official state policies and practices on the issue of
selements. e first section will begin by examining the official
Israeli history-telling of Balfour Agreement, the 1948 and 1967 Arab
–Israeli wars and, more recently, the failed peace initiatives and the
Israeli ‘withdrawal’ in Gaza. e official state view of these
historical events is not just performative but these partial history-
tellings also provide a narrative aritecture from whi the States’
arguments as to its international legal obligations (on selements,
land expropriation, human rights obligation) are built. e second
half of the apter will then examine how the state has used a
broader legal contestation over the meaning of occupation and
contested history-tellings in order to create an occupation/non-
312
occupation indeterminacy that underpins Israel’s selement policy
in the Occupied Territories.
313
History-telling
In creating a memory of state, the official Israeli history-telling of
the British Mandate period recognizes the 1917 ‘Balfour’ agreement,
in whi British Foreign Minister, Arthur Balfour declared British
government support for “a Jewish national home in Palestine.”11
What is not recognized is an earlier agreement made between the
British High Commissioner in Egypt, Sir Henry McMahon, and
Husayn ibn `Ali. In a series of correspondence, dated 1915–16, the
British promised to establish an independent Arab state (in the Arab
provinces of the Ooman Empire, whi included the region of
Palestine) in exange for support in its war effort against the
Ooman Empire. Limiting the historical context to the contents of
Balfour, the State recognizes “only the ‘civil and religious’ rights of
the inhabitants of Palestine are mentioned as rendering protection
[with] no mention of the national rights of the Arab people.” is
plays out, as detailed later in this apter, when turning to the
question of land and law where this partial history telling has
become part of the State’s arguments for a legal ‘right to sele.’12
Central to Israel’s official State narrative of the 1948 Arab–Israeli
war is the reproduction of a “particular way of knowing and a
particular kind of knowledge, one that served certain needs and
furthered certain goals” (including the appropriation of land and
property). 13 e State enlisted political, educational, and cultural
apparatus14 in order to narrate a particular Zionist memory about
the events of 1948 (referred to by Israelis as ‘Milhemet Ha-atzma`ut,’
or ‘War of Independence’) one in whi Palestinians were not
expelled, but rather le what had been British-mandate Palestine,
whi allowed Israel to gain control over significant tracts of land,
including approximately 500 villages.15 is, in turn, “enabled most
314
Israeli Jews to ‘forget’ what they once ‘knew’—that during the 1948
Arab–Israeli war a large number of Palestinian Arabs were
ethnically cleansed from the territories that became the state of
Israel.”16
In contrast, that Palestinian Arabs were the victims of the 1948
war is a central element found in Palestinian narratives around ‘al-
Nakbah’ or ‘the Catastrophe.’ Palestinians draw their historical
memories of 1948 from the oral testimony of those who fled (or were
expelled) as well as the physical remnants of villages destroyed and
Arab homes and neighborhoods now occupied by Jews.17 In the
Palestinian narration of ‘al-Nakbah,’ approximately 900,000–1
million Palestinians either fled or were expelled from their homes,
Palestinian lands were annexed and over 500 Palestinian villages
were destroyed by Israel.18 is narrative was given legal legs
through U.N. resolutions and other texts of international law, whi
recognized Palestinians as victims and stipulated meanisms for
rectification and restitution, most notably a ‘right to return.’
Contrasting narratives also lier accounts of the 1967 Arab–Israeli
war. Israelis refer to this period as the ‘Six Day War’ whi resulted
in a transfer of control over disputed territory and the establishment
of selements in ‘Judea and Samaria,’ considered to be the biblical
lands of the Jewish people. Israeli officials claim that the status of
these areas was sui generis because, at the time of conquest, they
were controlled by, but not sovereign to, Egypt and Jordan,
respectively;19 a point that will resurface as we turn to Israel’s
position on the applicability of international legal regimes in the
Occupied Territories. In contrast, Palestinians argue that in the ‘al-
Naksah’ (or ‘the setba’), Israel seized Egyptian, Syrian and
Jordanian territory and established selements in the West Bank,
Gaza, and the Sinai Peninsula in violation of international law. e
international community response was to pass U.N. Security Council
Resolution 242 that requires,
315
[…] withdrawal of Israeli armed forces from territories20 occupied in the recent conflict;
termination of all claims or states of belligerency and respect for and anowledgement
of the sovereignty, territorial integrity and political independence of every state in the
area and their right to live in peace within secure and recognized boundaries free from
threats or acts of force.21
More contemporaneously, failures to move the interim Oslo Accords
to a final negotiated agreement are either framed as generous
concessions to facilitate peace (official Israeli discourse) or aempts
to permanently disenfranise and fragment Palestinians from
territory (for Palestinians). is is particularly true for Camp David
II, the July 2000 negotiations convened by U.S. President Bill Clinton
and Israeli Prime Minister Ehud Barak. Barak had wanted to bypass
the interim steps outlined under the Wye Agreement22 and push for
a final agreement, whi would result in a two state solution. e
negotiations failed to rea an agreement and a very public
contestation over the reasons for its failure followed. Israel argues
that it was generous in handing over 95 percent of the West Bank
and Gaza to Palestinian control and that in the interest of national
security it had to maintain control over selements and security
zones in the West Bank. In contrast, the Palestinians claim that, if
accepted, the agreement would have le them with only 22 percent
of the territory of what was originally Palestine. ey argue that the
maintenance of selements and security zones within the Occupied
Territories would have divided the Palestinian state into
disconnected regions, a situation that would not free them from
Israeli occupation and would not make for a truly independent
state.23
Finally, in September 2005, Israel evacuated selements and
withdrew military personnel from Gaza but maintained border, sea,
and air control.24 Israel has argued that in removing Israeli military
bases and Jewish selers, Gaza was no longer Occupied Territory, a
point of legal contestation between Israel and the international
community.25 is position sits uneasily with one that Israel had
316
adopted earlier, that Gaza and the West Bank were never occupied.
Israel’s position, as noted earlier, is that as the West Bank and Gaza
were previously controlled by, but not sovereign to Egypt and
Jordan, these territories were sui generis. erefore, Israel has stated
that these are ‘administered,’ but not occupied territories. Had Israel
accepted its status as occupier, rather than administrator, it would
have been constrained from permanently seizing or seling in
territory acquired by force.
What emerges from this brief examination of these historical
markers is that if history has provided the grounding for creating
memories of state, then law has become an essential tool in
providing legitimacy to how it is constructed and protected. is is,
of course, not unique to the Israeli–Palestinian case; trying to de-link
international law from its political roots is, as Koskenniemi has
remarked, “pointless:”
… as international actors routinely allenge ea other by invoking legal rules and
principles on whi they have projected meanings that support their preferences and
counteract those of their opponents. In law, political struggle is waged on what legal
words su as ‘aggression,’ ‘self-determination,’ ‘self-defence,’ ‘terrorist’ or jus cogens
mean, whose policy will they include, whose will they oppose. To think of this struggle
as hegemonic is to understand that the objective of the contestants is to make their
partial view of that meaning appear as the total view, their preference seem like the
universal preference.26
erefore, in examining the approa to international law in the
occupied territories, the first question we must ask is “what or whose
view of international law is meant.”27 Political forces and states’
interests have endeavored to frame how we understand the
underpinning of the conflict, with national security discourse
displacing the language of occupation. e conflict is now narrated
as either an international conflict between two States, ea
employing different tactics to stake a claim over the ‘disputed
territories,’ or as an internal dispute between the State of Israel and
‘terrorist’ groups that seek to undermine the very existence of the
317
State. In examining just how international law has evolved against
this badrop, what emerges is a hegemonic contest, a performance
of sorts where law has become the surface over whi political (and
territorial) struggles are waged. Su public performances are part of
a larger political project where Israel shis its status from
“benevolent occupier”28 to sovereign. Within this political project,
law is best understood as,
[…] a surface over whi political opponents engage in hegemonic practices, trying to
enlist its rules, principles and institutions on their side, making sure they do not support
the adversary. In order to bring that perspective into focus, analysis must be shied
from rules to broad themes of legal argument within whi hegemonic contestation
takes place.29
Yet this refocusing and shiing from the legal to the political arena
has obfuscated the very core of the conflict itself—the military
occupation. In this historical resurfacing, captured so brilliantly in
the Levy Report,30 Israel has endeavored to shed its occupier status
and the international legal obligations aaed to it. Pulling the
discourse ba to the language of occupation poses a second
allenge. As Eyal Benvenisti has argued, until recently, discussions
related to occupation law were confined to Israel in the Palestinian
territories.31 Since the U.S. invasion of Iraq in 2003, however, there
has been an explosion of solarly work, state practice, judicial
opinions, U.N.-sponsored activity, and emerging cognate doctrines
all of whi relate to the laws of occupation. While this body of
work has gone some way to develop international law on
occupation, it is also riddled with inconsistencies. Without a
coherent roadmap, these varying legal arguments have allowed
political opponents in the Israeli–Palestinian conflict to make their
partial reading of a particular meaning appear as the total view.
318
Lawfare32
is political struggle over how (and what) international legal
regimes33 apply to the Occupied Territories34 is complex and
contested. e first point of contestation relates to the question of
occupation itself. Israel’s position with regard to its obligations
under the laws of belligerent occupation in the Occupied Territories
is threefold. First, although Israel had initially accepted the
applicability of the Geneva Conventions, in 1968 Israel adopted the
‘missing reversioner’35 argument, whi states that ‘belligerent
occupation’ presumes the displacement of a ‘High Contracting Party’
within the meaning of common Article 2 of the Geneva
Conventions. Lawful control of contested territory would then
‘revert’ to this party upon cessation of hostilities.36 Israel’s argument
here is that neither Jordan nor Egypt37 had a lawful territorial
entitlement to either the West Bank or Gaza Strip because this
territory was seized in an act of aggression against Israel in the 1948
–9 War of Independence. Accordingly, Israel is not bound by the
rules governing belligerent occupation as expressed in the Fourth
Geneva Convention.38 As Aeyal Gross has noted, despite this official
position that Palestinian territory is not occupied in the sense of
international humanitarian law, Israel did assume aspects of a
military administrator, including assuming some of the duties and
authorities of an occupying power. In short, he argues, “Israel has
been trying to have it both ways.”39
A second position, whi has found support amongst some
academics and advocated by the Israel High Court, is that the laws
of belligerent occupation apply to occupations of a short duration.
e regulations were not conceived for and therefore do not
accurately reflect situations of prolonged occupations, su as the
319
case of the Occupied Territories. In su circumstances, the rules
governing conduct and administration must reflect what has been
termed an evolutive approa. at is, the rules envisioned by the
Hague Regulations must develop to reflect accurately the prolonged
nature of Israeli occupation/administration in the West Bank and
Gaza Strip. is interpretation is found in a number of Israeli High
Court decisions.40
A third position, whi the Israeli government has adopted post-
Oslo, allenges fundamental concepts of belligerent occupation.
Israel has determined that belligerent occupation is based on the
boundaries of areas under Israeli Civil Administration
Administrative control. erefore, post-Oslo, Israel’s position is that
in areas turned over to the Palestinian Authority (whi includes
Gaza, Areas A and H1, and perhaps some of Area B) it is no longer a
belligerent occupier.
With regard to international human rights treaties, Israel has
argued that the laws of war supersede international human rights
law, and that the laer therefore does not apply. e State aributes
this position to a classification by the ICJ, whi describes the laws
of war as lex specialis that takes priority over international human
rights law, whi assumes a general law status.
e Israeli High Court position on application of the Fourth
Geneva Convention in the Occupied Territories is irresolute.
However, it has generally reflected the Israeli Government’s position;
that it is ‘constitutive’ rather than customary. e Court’s general
opinion is that while the Geneva Conventions may be binding on the
State of Israel they have not been adopted by the Israeli Knesset and
could not be considered part of internal Israel law. As a result, the
High Court has considered domestic application of the Conventions
to fall outside of the Court’s authority and refused to allow
individual petitioners to the High Court to rely on the Geneva
Conventions in their arguments.41
320
Narrating law, occupying justice
ese contestations over the nature and applicability of
contemporary occupation law is at the center of some of the most
polarized (and politicized) debates on the human rights violations
associated with Israeli policies and practices in the Occupied
Territories. It is a performance of sorts; violations are routinely
reported and condemned by the international community and Israel
responds, not by ignoring international law, but endeavoring to
shape it. In official state narratives, formulistic interpretations and
partial readings are applied to key legal provisions whi oen la
determinacy or strip the intent of legal provisions (especially with
regard to what constitutes military necessity or what is meant by
absolutely necessary) by streting the interpretations beyond what
they can bare. In the language that emerges, a partial view of what is
required under the laws of belligerent occupation is presented as the
total view.
At the domestic level, the Supreme Court of Israel plays a role in
creating and sustaining the legal and historical aritecture of the
State. As David Kretzmer has argued in his review of Israeli High
Court rulings on the Occupied Territories:
Given [the Court’s] perception of the political context [that of wartime], Israeli judges
will not be neutral in judging the conflicting claims of the government and Palestinians
subject to military rule. In the struggle between government policies and Palestinian
arguments of rights based on justice, international legal standards, or loy legal
principles, the Court has shown a marked preference for “state arguments.” e
dominant narrative holds that the state is being aaed, the authorities are trying to
protect it, and the ultimate duty of the Court is to assist them in this task.42
at international law has become firmly embedded in the wider
political struggle is particularly acute in the issues of land
expropriation and selements. Palestinians argue that Israeli
selement policies in the Occupied Territories is not only in
contravention of humanitarian and human rights law (a point Israel
321
contests) but, moreover, fails to comply with the Oslo agreements.
Fundamental to the debate as to whether Israeli policies in this area
are in contravention of international law are two primary questions.
First, do the rules of international law apply in the Occupied
Territories, or is there merit to the argument proffered by the Israelis,
whi contests that the length of time of occupation and the
uncertain previous tenure of Jordan and Egypt amount to a situation
of sui generis? Second, if we argue that the international law
governing belligerent occupation does apply, then do the current
Israeli practices, as outlined, create ‘facts on the ground’ whi
amount to de facto annexation of land in contested territories?43
e answer to these questions returns us ba to the question of
‘what or whose view’ of international law we accept. e
predominant view taken by the international community is that
under Article 49, paragraph 6 of the Fourth Geneva Convention “the
Israeli selements in the West Bank are unlawful.”44 In this reading,
the laws of belligerent occupation require that until final political
negotiations take place, the status quo of the occupied territories
must be maintained. Israel’s approa to selements has been
twofold. Firstly, within the public domain, it has graed together a
broader legal contestation over the meaning of occupation with
historical narratives that endeavor to uproot their status as occupier.
Secondly, it has created “facts that will predetermine the outcome of
any negotiations by making Israeli withdrawal from the seled parts
of the Territories politically unfeasible.”45
e establishment of Israeli selements in the Occupied
Territories has been the subject of a series of allenges to the Israel
High Court, with mixed results. e Court has, thus far, ruled on the
requisition of private land for selement use (allowing if the State
could demonstrate a military/security necessity46 and finding it
unlawful if the Court found the motivation was political47), but has
refused to rule on the general legality of establishing selements for
nationals of the Occupying Power in occupied territory.
322
While these legal points and counterpoints play out in the legal
and political sphere, what is without question is that,
e existence in the Territories of a large number of selers, who enjoy the full
democratic rights of Israeli citizens and for whose benefit scarce land and water
resources have been harnessed, has made the regime there mu closer to a colonial
regime than one of belligerent occupation.48
Occupying justice: land and law
Despite the terms of the Oslo agreements, it has been during the
‘peace process’ that the rate of selement growth has accelerated.
Whilst the exact number of selers living in contested territories
varies, current statistics provided by the Israeli Information Center
for Human Rights in the Occupied Territories, B`Tselem, indicates
that there are approximately 547,000 selers in the West Bank and
the population of Israeli neighborhoods in East Jerusalem numbered
196,890 people at the end of 2012.49 Most of these selements are
located in and around Jerusalem.
e “territorial and ideological base”50 for what would become a
large scale Israeli selement program in the Occupied Territories can
be traced to the 1967 Allon Plan.51 is plan was underpinned by
two primary principles. First, that Israel should retain direct control
over strategic areas of the Occupied Territories. Second, in addition
to establishing military sites in the Occupied Territories, Israel
should implement a plan of Jewish selement.52 From 1967–74,
under the leadership of Levi Eshkol and Golda Meir, 11 selements
were established. A majority of selements (nine or 82 percent) were
situated in the Jordan Valley and in the Gush Etzion area and
maintained a secular composition. Of the remaining two, one
selement was located next to the Latrun Road, and the other,
Kiryat Arba, was situated near Hebron. At this time, there were no
selements in either Gaza or in the northern part of the West Bank.
323
From 1974–7, under the Labor leadership of Yitzhak Rabin, nine new
selements were constructed. Again, a majority (six) were
established in either the Jordan Valley or the Gush Etzion Bloc. Of
the remaining three, two selements were located in ‘greater’
Jerusalem and one in the south of the West Bank.53
e election of the conservative Likud Party in 1977 would mark a
ange, both in ideology and practice in selement development.
Previously, according to Israeli policy, selements were the result of
state security needs and, in principle at least, were not to be
constructed in areas where there was a significant Arab community.
e Jewish population in these selements was mostly secular.
Under Menaem Begin and then Yitzhak Shamir, this policy, both
stated and applied, anged. e rate of selements increased. e
locations of selements oen brought new developments in close
contact with Arab villages. e composition of the selers would
also ange from one that was largely secular, to an increasingly
politicized Jewish community.54 e 1980 publication of a five-year
selement plan of the Occupied Territories (1980–5) by the
Selement Department of the World Zionist Organization highlights
the selement policy and objectives of this period:
e best and most effective way of removing every shadow of doubt about our intention
to hold on to Judea and Samaria55 forever is by speeding up the selement momentum
in these territories. e purpose of seling the areas between and around the centers
occupied by the minorities [e.g. Palestinians] is to reduce to the minimum the danger of
an additional Arab state being established in these territories. Being cut off by Jewish
selements, the minority population will find it difficult to form a territorial and
political continuity.56
From 1967 to late 2012, 125 Israeli selements were established in the
West Bank and 16 selements in the Gaza Strip and four in the
northern West Bank (both of whi were dismantled in 2005 in the
course of the Disengagement Plan).57 Additionally, 100 ‘outposts’
were built in the West Bank without official authorization but with
support and assistance from government ministries.58 In Hebron,
324
Jewish selements were established and, although these are not
considered ‘official’, they receive government support and military
protection. e government and Jerusalem Municipality have also
supported the establishment of 12 neighborhoods in areas of the
West Bank annexed by Israel in 1967 and has, since, funded a
number of ‘seler enclaves’ in Palestinian neighborhoods in East
Jerusalem.59
As competing claims to territory lie at the heart of the Israeli–
Palestinian conflict, the issue of selements is, at least in part, key to
its resolve. Yet the failure by the international community to hold
Israel accountable for its continued land expropriation for selement
expansion (and new constructions) is anging the facts on the
ground and, as Kretzmer argues, is renovating the legal aritecture
from that of a belligerent occupation to a colonial regime.
e Levy Report
In the wake of an Israeli High Court decision in 2012,60 in whi the
Court ordered the demolition the 30 apartments in a West Bank
selement that was constructed on private Palestinian land, Israeli
Prime Minister Benjamin Netanyahu established the Commiee to
Examine the State of Building in Judea and Samaria, led by retired
Supreme Court of Israel Justice Edmund Levy.61 In its July 2012
report (hereaer the Levy Report), the Commiee both reflects and
contests existing Israeli policies and practices.62 On the one hand, the
arguments of the Levy Commission adopt earlier state narrations of
international law, whi conclude that Israel’s selement policy
conforms to its international legal obligations. On the other, the
report goes mu further than previous Israeli state discourse and
calls upon other states to [re]evaluate their understanding of Israel’s
legal status in the Palestinian territory. Whilst the Netanyahu
government has not formally adopted the report (although there are
325
indications that the government has begun to secretly implement its
findings63), what is important to take away from the report’s
language is how the draers have projected a particular meaning on
to the concept of occupation. It is a view that sits uneasily in law,
but captures a political struggle for the hegemonic control of how
this concept is understood.
In contesting the notion of Israel as an occupier, the draers have
renovated two arguments noted earlier—the ‘missing reversioner
thesis,’ whi argues that the West Bank was never under the
authority of a sovereign state, and the notion that belligerent
occupation only applies to occupations of a short duration.64 e
report also revisits the British Mandate period but limits its reading
to the contents of the 1917 Balfour Declaration and Article 6 of the
British Mandate where it finds that in conferring to the Jewish
people a lawful “right to sele in the Land of Israel,”
… the original legal status of the territory was restored, namely, a territory designated
as a national home for the Jewish people, who had a “right of possession” to it during
Jordanian rule while they were absent from the territory for several years due to a war
imposed on them, and have now returned to it.
e report then concludes that, “from the perspective of
international law” the establishment of Jewish selements in the
West Bank is lawful.
326
Conclusion
Although the Levy report was set up specifically to determine the
legality of Israel’s selement policy, it goes mu further. Its
fractured historical reading excludes both Palestinian self-
determination claims and the 1947 U.N. Partition Plan, whi sought
to create two states for two nations in the territory of Mandatory
Palestine. It also uproots the notion of occupier and adopts,
e designation sui generis [that] literally places the West Bank and Gaza and their
populations into a state of exception, outside the rea of IHL and thus open to any and
all policies Israel may oose to impose, without fear of violating—at least according to
Israel’s interpretations—international human rights and humanitarian norms.65
at the substance of the Levy Commiee’s arguments contradicts
both international and Israeli established legal opinion, as well as the
findings of both the International Court of Justice and Israel’s
Supreme Court, is unlikely to deter proponents of this particular
narration of law. In this ‘zone of occupation’ the State can argue that
the West Bank and Gaza are not occupied territories, whilst at the
same time justify its restriction on the rights of Palestinians actions
in the occupied territories based on the law of occupation. e effect
of this occupation/non-occupation indeterminacy on the human
rights landscape in the Occupied Territory is all too clear. As the
concluding paragraphs to a 2015 Report to the Human Rights
Council summarized,
[…] the protection that international humanitarian law and international human rights
law should be providing for civilians, including ildren, across the Occupied
Palestinian Territory is distressingly absent. It is especially deplorable that Palestinian
ildren are suffering the brunt of occupation policies and practices of Israel, whether as
a result of the bloade and hostilities in Gaza, the excessive use of force by Israeli
security forces in the context of legitimate protests and peaceful demonstrations, as well
as sear operations in the refugee camps, and abuse and ill-treatment in Israeli prisons
327
[…] If another round of deadly violence is to be avoided, the underlying problems
perpetuating the conflict and the almost daily violation of the human rights of the
Palestinian people must be addressed and those responsible brought to justice.66
ere will continue to be, as there has been in the past, a hegemonic
contestation between the various ‘truth’ tellers of this region. ose
pressing for human rights and accountability may (as they have
begun to do) move with the story, shiing the language from
occupation to apartheid.67 ose supporting Israeli policies will
frame their external discourse with national security on one side and
this newly remodeled perspective of international law on the other.
In this epic bale of historical truth telling, law has become part of
the conflict—both its aggressor and its victim.
328
Notes
1 It is worth noting that this aracteristic is not unique to this case study and can be
found in other cases of protracted social conflicts. See, Brendan O’Leary and John
McGarry (eds), The Politics of Ethnic Conflict Regulation: Case Studies of Protracted
Ethnic Conflict (Abingdon: Routledge, 1993) and B. O’Leary, M. Heiberg and J. Tirman
(eds), Terror, Insurgency and the State: Ending Protracted Conflict (Philadelphia, PA:
University of Pennsylvania Press, 2007).
2 K.A. Cavanaugh, “Selective justice: the case of Israel and the Occupied Territories,”
Fordham International Law Journal vol. 26 (2003), 934–60.
3 ese figures do not include the number of Palestinians killed by Palestinians (684),
foreigners killed by Palestinians (58) or foreigners killed by Israeli security forces (12).
ese figures are current as of Mar 2015. See www.btselem.org/statistics. Last
accessed September 4, 2016.
4 See Christian Davenport, Media Bias, Perspective and State Repression: The Black
Panther Party (Cambridge: Cambridge University Press, 2009). Here Davenport’s
reference to the Rashômon effect derives from a 1950 film by Akira Kurosawa in whi
one event is witnessed by three different persons, all of whom see it from a different
perspective. Davenport has adopted this term (and we apply it here) to the tendency for
events to be perceived and reported in different ways, depending on who is telling the
story and to whom and how this relates to violence, protest, repression and peace.
5 Zionists refer to the promise by Abraham to his descendants in the Bible (Genesis 17:8),
the historic ties that the Jews have to Israel, and the need to provide a refuge to ensure
the survival of the Jewish culture in the face of European anti-Semitism.
6 For a comprehensive historical review, see Benny Morris, Righteous Victims: A History
of the Zionist-Arab Conflict, 1881–2001 (New York: First Vintage Books, 2001) and for a
review and analysis of the various peace accords, see Christine Bell, Peace Agreements
and Human Rights (Oxford: Oxford University Press, 2000).
329
7 Refaat Alareer, Gaza Writes Ba, 2014.
8 See K. Cavanaugh, “e aritecture of exclusion”, forthcoming in F. de Varennes and C.
Gardiner (eds) Routledge Handbook of Human Rights in Asia (Abingdon: Routledge,
exp. 2016).
9 suis generis is a Latin phrase used in many different contexts and is generally used when
referring to something that possesses unique aracteristics that are not easily
categorized. In the context of the Occupied Territories, it has come to be used to argue
that the territories were unique in that they were under the control of but not sovereign
to Egypt and Jordan, respectively. Israel argues that to be an ‘occupation’, the areas
must be recognized sovereign territory of the displaced states. For a detailed discussion
on this see, Yuval Shany, “Forty years aer 1967: reappraising the role and limits of the
legal discourse on occupation in the Israeli-Palestinian context,” 41 Is.L.Rev. 6, 7 (2008).
10 D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied
Territories (New York: State University New York Press, 2002) 75.
11 The Balfour Declaration, (London: Foreign Office, November 2, 1917) reprinted in A.
Gerson, Israel, the West Bank and International Law (London: Frank Cass, 1978) 246–
252.
12 See the 2012 report of the Commiee to Examine the State of Building in Judea and
Samaria. Only the conclusion and recommendations of the report have been translated
from Hebrew to English. An English version of the first part of the report can be found
at: hp://elderofziyon.blogspot.ca/2012/07/english-translation-of-legal-
arguments.html#.Vb-hnkvyHwI
13 Z. Loman, Comrades and Enemies: Arab and Jewish Workers in Palestine,1906–1948
(Berkeley: University of California Press, 1998) 36.
14 See S Hazkani and Chris Gratien, “e Politics of 1948 in Israeli Arives,” Ooman
History Podcast, No. 166 (July 19, 2014) www.oomanhistorypodcast.com/2014/07/the-
politics-of-1948-in-israeli-arives.html. Last accessed September 4, 2016.
15 See Avi Shlaim, The War for Palestine: Rewriting the History of 1948 (Cambridge:
Cambridge University Press, 2007).
330
16 See J. Beinin, “No more tears: Benny Morris and the road ba from Liberal Zionism,”
Middle East Report vol. 230 (Spring 2004) 39.
17 See E. Shoufani, “e fall of a village,” JPS vol. 1, no. 4 (Summer 1972), 109–21; N.
Nazzal, The Palestinian Exodus from Galilee, 1948 (Washington: Institute for Palestine
Studies, 1978); Salim Tamari, ed., Jerusalem 1948: The Arab Neighborhoods and Their
Fate in the War (Jerusalem: Institute of Jerusalem Studies, 1999).
18 See B. Morris, The Birth of the Palestinian Refugee Problem, 1947–1949 (Cambridge:
Cambridge University Press, 1988) 252. e number of Palestinians living in Jordan is
estimated at 1.3 million. Other Palestinians seled in Lebanon, Kuwait and Syria. Only
Jordan has granted Palestinians citizenship. It is, as Joel Beinin right argues, possible to
‘reasonably’ examine how many Palestinians were expelled and how many fled from
fear or whether the actions taken by Zionist leaders was a ‘preconceived plan’ and if
ethnic cleansing is the ‘best term to describe’ the events of that time period. What is not
part of ‘legitimate debate’ is “whether or not some 700,000 indigenous inhabitants were
expelled or fled from the territories that became the State of Israel aer the 1948 War
and that Palestinian Arab society was devastated in the process.” See J. Beinin,
“Destruction and appropriation of Palestinian history and cultural property: the
responsibilities of historians” (Paper presented at January 2015 American Historical
Association Annual Meeting, NYC).
19 For a discussion on this see, N. Gordon, Israel’s Occupation (Berkeley, CA: University of
California Press, 2008) 26 and L. Hajjar, Courting Conflict: The Israeli Military Court
System in the West Bank and Gaza (Berkeley and Los Angeles, CA: University of
California Press, 2005) 56.
20 In official U.N. languages other than English the article “the” preceded “Territories,” thus
implying that Israel has to return all the seized territory.
21 S. C. Res. 242 (1967) November 22, 1967.
22 In October 1998, e Wye River Memorandum was signed between Israel and the
Palestinian Authority. e Agreement aimed to resume the implementation of the 1995
Interim Agreement on the West Bank and the Gaza Strip (Oslo II Accord).
23 For an excellent discussion on the negotiations, see Morris (n. 7) 652–75.
331
24 For a fact sheet on the extent of these controls, see B`Tselem, “e Scope of Israeli
Control in the Gaza Strip,” January 5, 2014. Available at:
www.btselem.org/gaza_strip/gaza_status. Last accessed August 10, 2015.
25 In 2007, the then U.N. Special Rapporteur on the Situation of Human Rights in the
Occupied Palestinian Territory, John Dugard, stated that “Israel remains an occupying
Power in respect of Gaza” as it retains “effective control over Gaza by means of its
control over Gaza’s external borders, airspace, territorial waters, population registry, tax
revenues and governmental functions.” Determining whether a party to a conflict
continues to exercise effective control over an area is one element in determining if
there is an occupation. See e report of the Special Rapporteur on the situation of
human rights in the Palestinian territories occupied since 1967, John Dugard, A/62/275,
August 17, 2007.
26 M. Koskenniemi, “International law and hegemony: a reconfiguration,” Cambridge
Review of International Affairs vol. 17, no. 2 (2004), 197–218, 199.
27 Ibid.
28 Kretzmer, The Occupation of Justice, 64–72.
29 Koskenniemi, “International law and hegemony,” 197.
30 A Commiee set up in 2012 by Benjamin Netanyahu and led by retired Supreme Court
of Israel Justice Edmund Levy to examine the legality of Selement building in the West
Bank.
31 See E. Benvenisti, The International Law of Occupation (Oxford: Oxford University
Press, 2nd ed., 2012).
32 Whilst I use this term, it is worth noting that this concept is used both by those who see
it as “a means by whi to contest the legality of a state’s wartime behavior vis-à-vis
enemies on and off the balefield” and others who argue that this is a tool specifically
developed to promote a particular position (anti-Israeli) or to support terrorism. See Lisa
Hajjar, Lawfare and Targeted Killing: Developments in the Israeli and U.S. Contexts,
Jadaliyya, January 15, 2012. Available at:
www.jadaliyya.com/pages/index/4049/lawfare-and-targeted-killing_developments-in-
the-i. Last accessed August 3, 2015.
332
33 It is generally held that there are three international legal regimes that apply to the
Occupied Territories—International Humanitarian Law, International Human Rights
Law and International Criminal Law. Under international humanitarian law, rules
governing the conduct of an occupying power are laid down in the Fourth Geneva
Convention to whi Israel is signatory, as well as the 1907 Hague Regulations. Israel is
not a signatory to the Fourth Hague Convention of 1907 or its annexed Regulations, but
the Israeli position has been to regard the Hague regulations as customary international
law. With regard to international human rights law, Israel is required to respect and
protect human rights under its obligations enumerated in a number of U.N. treaties,
whi it has ratified. ese treaties include: the International Covenant on Civil and
Political Rights (ICCPR); the International Covenant on Social, Economic and Cultural
Rights (ICSECR); the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT); the Convention on the Rights of a Child
(CRC); and the Convention on the Elimination of all Forms of Racial Discrimination
(CERD). ese treaties are accompanied by other international human rights standards
whi are binding on members of the U.N. and include guidelines and guiding
principles that regulate the code of conduct of law enforcement officials, and the
preventive and investigative requirements in disputed killings, the use of force and
firearms, detention and imprisonment, and victim’s rights.
34 Palestinians are subject to Israeli rule that has been jurisdictionally divided into three
areas, ea of whi has a distinct legal status. e first is the sovereign territory of
Israel, located within the 1949 armistice line (oen referred to as the ‘Green line’). e
second consists of those units/parts of the Occupied Territories, whi have been, de
facto, annexed (e.g. East Jerusalem, confiscated lands, Jewish selements and military
installations). Finally, there is the Israeli military administration that was originally
established to govern Palestinians in the West Bank and Gaza. In 2005, Israel ‘withdrew’
from the Gaza strip and, since August 2005, the Military legal administration (whi
includes the Military Courts) only applies to citizens of the West Bank.
35 See Y. Blum, “e missing reversioner, reflections on the status of Judea and Samaria,”
Israel Law Review (ISRL) vol. 3 (1968), 279.
36 An excellent discussion on these points can be found in Riard Falk, Weston H. Burns,
“e relevance of international law to Israeli and Palestinian rights in the West Bank
333
and Gaza,” in E. Playfair (ed.), International Law and the Administration of Occupied
Territories (Oxford: Oxford University Press, 1992), 130–6, 131.
37 Egypt administered the Gaza Strip from 1948–67 but never claimed sovereignty over this
area. Jordan did establish territorial rule over the West Bank during its tenure from 1948
–67.
38 e Israeli position on the applicability of International Law in the Occupied Territories
is articulated in a paper presented by former aorney general Meir Shamgar, “e
observance of international law in the Administered Territories,” published in Israel
Yearbook on Human Rights (IYHR) vol. 1 (1971), 262–77. A copy of this text is provided
by Al Haq. Israel’s position has been to apply what it has termed ‘humanitarian
provisions’ of the Geneva Convention to the Occupied Territories although definition of
what constitutes humanitarian provisions is unclear.
39 See A. Gross’, If there are no Palestinians, there’s no Israeli occupation, Haaretz, July 10,
2012, available at: www.haaretz.com/news/diplomacy-defense/if-there-are-no-
palestinians-there-s-no-israeli-occupation-1.449988. Last accessed October 8, 2015.
40 is is particularly evident in the wide-scale anges in local law in contravention of
Article 43 of the Hague Regulations.
41 See HC 393/82, IYHR 14, 1984, 303, 793.
42 Kretzmer, The Occupation of Justice, 196.
43 Article XXXI(7) of Oslo II states: “Neither side shall initiate or take any step that will
ange the status of the West Bank and the Gaza Strip pending the outcome of the
permanent status negotiations.”
44 See Juan Pedro Saerer, head of ICRC delegation for Israel and the Occupied
Territories, in a piece published in Haaretz in reaction to the publication of the Levy
Report (November 4, 2012). See full statement at: www.haaretz.com/beta/the-levy-
report-vs-international-law-1.474129. Under Article 49, paragraph 6 of the Fourth
Geneva Convention Israel is prohibited from the transfer of all or part of its civilian
population into occupied territory. is is the view consistently stated by various U.N.
bodies as well as local based and international human rights organizations. See, e.g.
UNSC Resolution 446, Mar 22, 1979, U.N. Doc. S/RES/446 (1979); UNSC Resolution
334
452, July 20, 1979, U.N. Doc. S/RES/452 (1997); and UNSC Resolution 465, 1 Mar 1980,
U.N. Doc. S/RES/465 (1980). It must be said that whilst international community
condemnation over Israeli policies and practices in the Occupied Territories is routine
(with the notable exception of the United States) there is, in reality, very lile effort to
enforce international law or hold Israel accountable for the numerous violations it has
engaged in since 1967.
45 Kretzmer, The Occupation of Justice, 75.
46 HCJ 606/78, Ayyub v. Minister of Defence, 33(2) PD, p. 113, 1978. For more on this see M
Karayanni, Conflicts in a Conflict: A Conflict of Laws Case Study on Israel and the
Palestinian Territories (OUP, 2014) 33–40.
47 See HCJ 390/79, Dweikat et al., v. Government of Israel et al., 34(1) PD, p. 1, 1979.
48 Kretzmer, The Occupation of Justice, 75.
49 ese figures are current to May 2015 and drawn from B`Tselem’s Statistics on
Settlements and Settler Population, available at: www.btselem.org/selements/statistics.
Last accessed September 4, 2016.
50 See W.W. Harris, Taking Root: Israeli Settlement in the West Bank, the Golan and Gaza-
Sinai 1967–1980 (Chiester: Resear Studies Press, John Wiley, 1980) 36.
51 Devised by the then Minister of Labour, Yigal Allon.
52 Full translated text of this plan can be found in L. Fabian and Z. Siff (eds), Israelis
Speak About Themselves and the Palestinians (New York and Washington, D.C.:
Carnegie Endowment for International Peace, 1977), 207.
53 Statistics obtained from LAWE report, “Evaluation of Israeli selement policy and the
protest movement against selement expansion,” February 13, 1995, 2–3.
54 See D. Shipler, Arab and Jew: Wounded Spirits in a Promise Land (New York: Times
Books, 1989) 144–55.
55 Biblical term used by the Israelis to denote the West Bank.
56 See M. Drobles, Master Plan for the Development and Settlement of Judea and Samaria,
Jerusalem, 1980 cited in International Law and the Administration of Occupied
Territories, Emma Playfair (ed.) (Oxford: Oxford University Press, 1992) 446.
335
57 ese statistics are derived from B`Tselem who draw their information from the Israeli
Central Bureau of Statistics (CBS) and Jerusalem Institute for Israel Studies. See
www.btselem.org/selements/statistics. Last accessed October 15, 2015.
58 For more on this, see Yesh Din’s report, Under the Radar: Israel’s silent policy of
transforming unauthorized outposts into official selements, Mar 2015.
59 For more on the selement policy, see Report of the U.N. Secretary General to the
General Assembly on Israeli selements in the Occupied Palestinian Territory, including
East Jerusalem, and in the occupied Syrian Golan, A/HRC/28/44, Mar 9, 2015.
60 e selement was located in the Ulpana neighborhood of the West Bank. For more on
this case, see: www.haaretz.com/beta/rejecting-state-request-high-court-orders-
demolition-of-west-bank-outpost-to-go-forward-1.428776. Last accessed September 4,
2016.
61 e two other commiee members were retired District Court Judge Teia Shapiro, and
Alan Baker, a former legal advisor to Israel’s Ministry of Foreign Affairs and
Ambassador to Canada.
62 Only the conclusion and recommendations of the report have been translated from
Hebrew to English. An English version of the first part of the report can be found at:
hp://elderofziyon.blogspot.ca/2012/07/english-translation-of-legal-
arguments.html#.Vb-hnkvyHwI. Last accessed September 4, 2016.
63 See www.haaretz.com/beta/.premium-1.595479. Last accessed September 4, 2016.
64 e report argues that this does not apply to Israel’s control over the West Bank
(referred to as Judea and Samaria), as “no one can predict its termination, if at all.”
65 See L. Hajjar and M. Levin, International law, the Gaza war, and Palestine’s state of
exception, Al Jazeera, 21 November 2012. Available at:
www.aljazeera.com/indepth/opinion/2012/11/20121121103831534612.html. Last accessed
August 10, 2015.
66 Statement by Makarim Wibisono, the Special Rapporteur on the situation of human
rights in the Palestinian territories occupied since 1967 available at: A/HRC/28/78 at §73.
Earlier U.N. reports and reports by local and international NGOs also detail the use of
collective punitive measures including the demolition of houses, outside that whi is
336
required for military operations, the razing of agricultural land (and the use of
bulldozers to facilitate the operations), the encircling of towns and villages, and curfews
and closures; the erection of a barrier wall and the building of selements in to
occupied territory. For a list of all U.N. reports related to the Occupied Palestinian
Territories see: www.ohr.org/EN/Countries/MENARegion/Pages/PSIndex.aspx. For
NGO reporting on Israel and the Occupied Territories see: reports on Israel and the
Occupied Territories see: Amnesty International (amnesty.org) Human Rights Wat
(hrw.org) and B`Tselem (btselem.org).
67 See J. Reynolds and J. Dugard, “Apartheid, international law, and the Occupied
Palestinian Territory,” European Journal of International Law vol. 24, no. 3 (2013), 867–
913.
337
Selected Bibliography
Beinin, J. “No more tears: Benny Morris and the road ba from
liberal Zionism” in Middle East Report vol. 230 (2004), 38–45.
Benvenisti, E. The International Law of Occupation. 2nd ed. Oxford:
Oxford University Press, 2012.
Blum, Y., “e missing reversioner, reflections on the status of Judea
and Samaria” in Israel Law Review (ISRL) vol. 3 (1968), 279.
Boyle, FA.. Palestine, Palestinians and International Law. Atlanta,
GA: Clarity Press 2003.
Cavanaugh, KA.. “Selective justice: e case of Israel and the
Occupied Territories” in Fordham International Law Journal vol.
26 (2003), 934.
Gocek, FM. Rise of the Bourgeoisie, Demise of Empire: Ottoman
Westernization and Social Change. Oxford: Oxford University
Press, 1996.
Gordon, N. Israel’s Occupation. Berkeley and Los Angeles, CA:
University of California Press, 2008.
Hajjar, L. Courting Conflict: The Israeli Military Court System in the
West Bank and Gaza. Berkeley and Los Angeles, CA: University
of California Press, 2005.
Kretzmer, D. The Occupation of Justice: The Supreme Court of Israel
and the Occupied Territories. New York: State University New
York Press, 2002.
Kretzmer, D. “e law of belligerent occupation in the Supreme
Court of Israel,” International Review of the Red Cross vol. 94, no.
885 (2012), 207–36.
Loman, Z. Comrades and Enemies: Arab and Jewish Workers in
Palestine, 1906–1948. Berkeley, CA: University of California
Press, 1998.
338
Morris, B. Righteous Victims: A History of the Zionist-Arab Conflict,
1881–2001. New York: First Vintage Books, 2001.
Morris, Benny. The Birth of the Palestinian Refugee Problem, 1947–
1949. Cambridge: Cambridge University Press, 1988.
339
10
e United States and Israeli
Violations of International
Humanitarian Law
Stephen Zunes
340
Introduction
Violations of international humanitarian law and other human
rights abuses by governments in the Middle East and North Africa
are tragically common. ose commied by the government of Israel
are certainly not the worst in this regard. However, there is no
country engaged in su breaes of these widely-accepted legal
norms for whi the United States—whi oen sees itself as a
defender of human rights—has gone to su extent to support and
defend in the face of international criticism. Excusing Israeli
violations of international humanitarian law has overwhelming
bipartisan support in both Congress and successive administrations.
is is part of a longstanding consensus within Washington that war
crimes by U.S. allies, particularly in the strategically important
Middle East, must be ignored, downplayed, defended, and/or
covered up.
is apter looks at how the United States has played an active
role in defending Israeli violations of international humanitarian law
and in discouraging the United Nations from addressing Israeli
violations of the Fourth Geneva Convention and other human rights
and humanitarian law treaties and customs, specifically in regard to
the illegal Israeli selements in the occupied West Bank (including
East Jerusalem) and aas against civilians in the besieged Gaza
Strip. Given the international norm of the illegality of colonizing
lands seized by military force, as well as longstanding principles
regarding the protection of non-combatants in time of war, the
issues at stake go well beyond the Israeli–Palestinian conflict. e
United States has, quite appropriately, condemned acts of terrorism
and related war crimes by Hamas and other hostile Arab militia.
However, as this apter explores, the failure to hold its ally Israel
341
accountable to international legal norms has created a climate of
impunity by the region’s most powerful country to the detriment of
not just Palestinians but also for the legitimate long-term security
interests of Israel and the United States, as well as the enforceability
of international law. is is particularly problematic since, while a
just resolution to the Israeli–Palestinian conflict is a complex and
oen contentious topic, international humanitarian law and its
applications are well-established, even if oen ignored. Indeed, as
Riard Goldstone, the respected South African jurist who aired a
2009 investigation into war crimes by both Israel and Hamas, noted
in presenting his report before the U.N. Human Rights Council, “A
culture of impunity in the region has existed for too long. e la of
accountability for war crimes and possible war crimes against
humanity has reaed a crisis point.”1
342
U.S. support for illegal settlements
Article 49 of the Fourth Geneva Convention—to whi both Israel
and the United States are signatories—prohibits any occupying
power from transferring “parts of its civilian population into the
territory it occupies.”2 e United Nations has on several occasions
recognized that Israel is in violation of this critical international
treaty, including Security Council resolutions 446, 452, 465, and 471,
whi were passed without U.S. objections. e official State
Department position, in effect since 1978 and never formally
repealed, states categorically that,
While Israel may undertake, in the occupied territories, actions necessary to meet its
military needs and to provide for orderly government during the occupation, for the
reasons indicated above the establishment of the civilian selements in those territories
is inconsistent with international law.3
In addition, a landmark 2004 decision by the International Court of
Justice confirmed the illegality of the selements, noted the
illegitimacy of “any measures taken by an occupying Power in order
to organize or encourage transfers of parts of its own population into
the occupied territory.”4 Despite the fact that the World Court
decision also enjoined the United States and other signatories to
“ensure compliance by Israel with international humanitarian law,”
and despite the State Department position recognizing that the
selements are a violation of international humanitarian law, there
has been a longstanding bipartisan consensus to not force Israeli
compliance with its legal obligations.
As part of an annex in the 1978 Camp David Agreement between
Israel and Egypt, Israeli Prime Minister, Menaem Begin, promised
a five-year selement freeze. When the Israelis resumed construction
aer only three months, President Jimmy Carter refused to hold
343
Begin to his promise, even though Carter anowledged that these
selements were illegal and the United States had been given the
role of guarantor of the peace treaty. is was not the last time the
Israeli government would promise to freeze selements only to
break that promise with the understanding there would be no
serious consequences from Washington.
In 1991, President George H.W. Bush insisted on a selement
freeze as a condition to granting a controversial $10 billion loan
guarantee to Israel. In response, leading members of Congress—
including the leading candidates for the 1992 Democratic
presidential nomination—aaed Bush from the right by calling on
the president to grant the loan guarantee unconditionally. Under
pressure from the Democrats—who then controlled both houses of
Congress—as well as incipient Democratic presidential nominee Bill
Clinton, Bush capitulated. He approved the loan guarantee with
Israel in July 1992, though with the proviso that Israel would limit
new construction to the “natural growth” of existing selements
(su as building new units for adult ildren.) By the following
year, however, it became apparent that Israel, with the acquiescence
of the new Clinton administration, interpreted this restriction so
liberally that the number of new Israeli colonists in the occupied
territories grew faster than ever. Indeed, this infusion of billions of
dollars’ worth of U.S.-baed loans were critical in enabling Israel to
embark on the dramatic expansion of Israeli selements in the
coming years.
When the Oslo Accords were signed in September 1993, the
Palestinians pressed to address the selements issue immediately.
e Clinton administration, however, insisted that su discussions
be delayed. By puing off su a fundamental issue as the
selements as a ‘final status issue,’ the United States gave the Israelis
the ability to continue to create facts on the ground whi would be
hard to reverse even as the peace process slowly moved forward.
Despite their illegality, the Clinton administration refused to insist
344
that Israel stop the expansion of Jewish selements and confiscation
of land that the Palestinians and others had assumed was destined to
be part of a Palestinian state. It is only because of these selements
that the boundaries for a future Palestinian state envisioned by
Clinton and Israeli Prime Minister Ehud Barak in the July 2000
summit at Camp David took its unviable geographic dimensions,
leading Palestinian leader Yasser Arafat to reject it. Even top Clinton
administration officials like Robert Malley anowledged that the
United States had not been tough enough on Israel for its selement
drive and this failure to do so was a major factor in the collapse of
the peace process.5
Clinton did not just tolerate the expansion of selements,
however, he actually encouraged it. Under pressure from peace and
human rights groups, Congress had aaed a provision to the 1992
loan-guarantee agreement requiring the president to deduct the costs
of additional selement activity from the $2 billion annual
installment of the loan. In October 1993, the Clinton administration
officially announced to Israel that there would be a $437 million
deduction in the next year’s loan guarantee due to selement
construction during the 1993 fiscal year. However, State Department
Middle East peace talks coordinator Dennis Ross immediately let the
Israeli government know that the United States would find a way to
restore the full funding. Within a month, Clinton authorized Israel to
draw an additional $500 million in U.S. military supplies from NATO
warehouses in Europe. A similar scenario unfolded the following
year. Aer deducting $311.8 million spent on selements from the
1995 loans, Clinton authorized $95.8 million for help in redeploying
troops from the Gaza Strip and $240 million to facilitate withdrawal
from West Bank cities. is was based on the rather dubious
assertion that it costs more to withdraw troops than to maintain
them in hostile urban areas. Clinton explicitly promised the Israelis
that aid would remain constant regardless of Israeli selement
policies. What resulted, then, was that the United States began in
345
effect subsidizing the selements since the Israelis knew that, for
every dollar that they contributed to maintaining and expanding
their presence in the occupied territories, the United States would
convert a loan guarantee into a grant.
Given the gross asymmetry in power between the Palestinians
under occupation and the Israeli occupiers—whose primary military,
economic and diplomatic supporter was also the ief mediator in
the negotiations—it was rather obvious that the U.S.-led peace
process would be unable to stop selement expansion. It appears,
then, that the Clinton administration’s insistence on sidelining the
United Nations was to enable Israel to do just that. It was during this
period that the Israelis began building a massive highway system of
29 roads totaling nearly 300 miles, designed to perpetuate effective
Israeli control of most of the West Bank. As part of what Clinton
referred to as ‘implementation funding’ of the 1998 Wye River
Agreement, in whi Israel agreed to withdraw from an additional
14 percent of the West Bank, the United States offered $1.2 billion in
supplementary foreign aid to the Israeli government. Most of the
funding was reserved for armaments but mu of the nonmilitary
funding was apparently earmarked to build these ‘bypass roads’ and
security enhancements for Israeli selers in the occupied territories.
Su direct subsidies for Israeli selements placed the United States
in violation of Article 7 of U.N. Security Council Resolution 465,
whi prohibits member states from assisting Israel in its
colonization drive. So, not only has the United States allowed Israel
to violate U.N. Security Council resolutions in continuing to
maintain and expand its illegal selements but Clinton also placed
the United States itself in violation of a U.N. Security Council
mandate. Israel also refused to abide by the call in Phase I of the
2003 Roadmap for Peace, whi required Israel to freeze “all
selement activity, including natural growth of selements,” and to
dismantle all selements erected since Mar 2001. Despite being the
346
key sponsor of the Roadmap, the United States refused to press Israel
to do so and blamed the Palestine Authority for its failure.
e Obama administration’s 2011 veto of an otherwise-unanimous
dra U.N. Security Council resolution opposing the expansion of the
illegal selements raised serious questions as to whether his public
criticism of Netanyahu’s construction of additional illegal
selements was sincere. Just weeks earlier, scores of traditionally
pro-Israel and decidedly mainstream leaders of the political
establishment—including solars, journalists, and former officials—
signed a leer to the president encouraging him to support the dra
resolution stating,
e time has come for a clear signal from the United States to the parties and to the
broader international community that the United States can and will approa the
conflict with the objectivity, consistency and respect for international law required if it
is to play a constructive role in the conflict’s resolution.
Noting how the resolution “would in no way deviate from our
strong commitment to Israel’s security,” they warned that “deploying
a veto would severely undermine U.S. credibility and interests,
placing us firmly outside of the international consensus, and further
diminishing our ability to mediate this conflict.”6 Similarly, following
the veto, Human Rights Wat noted how it “undermines
enforcement of international law,” adding that, “President Obama
wants to tell the Arab world in his speees that he opposes
selements, but he won’t let the Security Council tell Israel to stop
them in a legally binding way.”7
Similarly, in December 2012, the Obama administration bloed a
U.N. Security Council vote on a resolution condemning Israel’s
announcement of the planned construction of new selements. e
U.S. then bloed an effort for a joint statement by the Security
Council president. As a result, all fourteen other members of the
Security Council had to issue individual statements condemning the
illegal Israeli actions. Given that the 2004 ruling by the International
347
Court of Justice enjoined the United States and other signatories to
“ensure compliance by Israel with international humanitarian law,”
these actions have effectively put the United States in defiance of the
World Court, as well.
348
Attas against civilians
Another area in whi the United States has sought to undermine
international humanitarian law is in regard to Israeli aas on
civilians. For example, on December 27, 2008, following an increase
in Hamas roet aas into civilian areas in Israel, Israeli armed
forces launed a massive assault on the Gaza Strip. Six days into
the Israeli assault, Amnesty International USA sent a leer to
Secretary of State Condoleezza Rice noting its dismay “at the
lopsided response by the U.S. government to the recent violence and
its laadaisical efforts to ameliorate the humanitarian crisis in
Gaza.” e Nobel Peace Prize-winning organization went on to note,
“Without diminishing the responsibility of Hamas and other
Palestinian armed groups for indiscriminate and deliberate aas
on Israeli civilians, the U.S. government must not ignore Israel’s
disproportionate response and the longstanding policies whi have
brought the Gaza Strip to the brink of humanitarian disaster.”8
Congressional leaders of both parties, however, rushed to defend
the Bush administration’s position. As the international outcry over
the high number of civilian casualties in Israel’s assault on the Gaza
Strip grew during the second week of fighting, Congress formally
went on record supporting Bush’s position that the Israeli armed
forces bore no responsibility for the large and growing numbers of
civilian casualties. e bipartisan resolutions in the Democratic-
controlled Congress put forward an extreme reinterpretation of
international humanitarian law, apparently designed to exonerate
nations with superior firepower from any liability for inflicting
large-scale civilian casualties. e Senate resolution,9 primarily
wrien and sponsored by Senate Majority Leader Harry Reid, passed
the Senate by unanimous consent on a voice vote. An even stronger
349
House resolution,10 sponsored by House Speaker Nancy Pelosi (D-
CA), passed the House by a lopsided 390–5 roll call vote (with 22
members voting present). Both resolutions placed the blame for the
death and destruction exclusively on the Palestinian side, and were
widely interpreted as rebukes to the international human rights
community and the United Nations, ea of whi had cited
evidence that both Hamas and the Israeli government were engaged
in war crimes. In subsequent months, there were a series of detailed
investigations of violations of the laws of war by both Israel and
Hamas, whi directly contradicted assertions made by Congress in
these resolutions. Among these were reports by Amnesty
International,11 Human Rights Wat,12 the National Lawyers
Guild,13 the Israeli group B`Tselem,14 and the United Nations
Human Rights Council (UNHRC).15
During the 2014 conflict whi began that July, close to 1,500
Palestinian civilians in Gaza were killed in the Israeli aas—more
than 500 of whom were ildren—and 18,000 homes were destroyed,
leaving over 100,000 people homeless. Despite this devastating
civilian toll, both Democrats and Republicans on Capitol Hill went
on record claiming that Israel’s actions were legitimate acts of self-
defense against military targets, dismissing reports by reputable
Israeli and international human rights groups saying otherwise. In
July and August, the two houses of Congress passed four resolutions
and forwarded a series of leers providing unqualified baing for
the massive Israeli air and ground assault. is eoed the Israeli
government’s justifications for the war and directly contradicting
findings by United Nations officials on the ground, as well as
investigations by both Israeli and international human rights groups.
What is significant is not just the enthusiastic support for a
military operation condemned by most of the international
community, but that this was done despite contradictory evidence.
While Hamas was guilty of terrorism in the deaths of the five
civilians killed by Hamas roets inside Israel, the resolutions and
350
leers seem to assume that the Israeli government bore absolutely
no responsibility for the deaths of nearly 1,500 Palestinian civilians
killed by Israeli ordnance inside the Gaza Strip. Indeed, members of
Congress repeatedly asserted that the Palestinian side was somehow
responsible for the deaths of its own people at the hands of Israeli
forces.
On July 25, Amnesty International reported that “Israeli forces
have carried out aas that have killed hundreds of civilians, using
precision weaponry su as drone-fired missiles, as well as
munitions su as artillery, whi cannot be precisely targeted, on
very densely populated residential areas.” Israeli forces “directly
aaed thousands of homes,” including high-rise apartment blos,
killing whole families. Observing that civilians in the Gaza Strip had
“nowhere to escape military operations by Israeli forces,” Amnesty
provided ample evidence that Israeli forces were engaging in
“indiscriminate aas on urban areas using artillery and bombs.”16
In a particularly serious brea of international law, Amnesty
further reported that “ambulances and medical personnel on their
way to collect the wounded appear to have been deliberately
targeted on several occasions, and hospitals have been destroyed by
shelling from tanks and missiles.” Similarly, an investigation by an
Israeli veterans group concluded that Israeli policies “led to massive
and unprecedented harm to the population and the civilian
infrastructure in the Gaza Strip. Policymakers could have predicted
these results prior to the operation and were surely aware of them
throughout,” and that heavy weapons fire on a “massive scale [was]
directed into neighborhoods and populated areas, while disregarding
the necessary safety ranges from the civilian population.”17 Human
Rights Wat cited evidence of Israel “blatantly violating the laws of
war designed to spare civilians,” including by aaing heavily
populated neighborhoods, bombing U.N.-run sools, and shooting
at fleeing civilians.18 e Israeli human rights organization B`Tselem
allenged its government’s claims that it had “no intention of
351
harming civilians,” noting that “aer more than three weeks of lethal
bombardments by Israel in the Gaza Strip, whi have killed
hundreds of civilians and wiped out dozens of families, this claim
has become meaningless.”19 U.N. officials also arged Israeli forces
with engaging in serious violations of international law following a
series of aas against U.N. sools where Palestinians were
seeking refuge.20
Despite this, the U.S. House of Representatives, with more than
100 co-sponsors from both parties, passed a resolution by unanimous
consent insisting that the Israeli aas were exclusively “focused on
terrorist targets,” and that Israel “goes to extraordinary lengths to
target only terrorist actors.”21 Senate majority leader Harry Reid
introduced a resolution, also pushed through by unanimous consent,
claiming that, “the Government of Israel has taken significant steps
to protect civilians in Gaza,” and that “Israel’s aas have focused
on terrorist targets.”22 ese were just two in a series of similar
bipartisan resolutions and public leers that went through Capitol
Hill as part of a concerted campaign to discredit human rights
groups, journalists, medical workers, U.N. officials, and any other
eyewitness who documented Israeli violations of international
humanitarian law.
During and following both the conflicts, Congressional resolutions
accused Hamas of “using innocent civilians as human shields.”
Subsequent human rights reports criticized Hamas for less-severe
violations of international humanitarian law, su as not taking all
necessary steps it should to prevent civilian casualties when it
positions fighters and armaments too close to concentrations of
civilians.23 ey found no evidence, however, of Hamas engaging in
the more serious war crime of using human shields, whi is defined
as deliberately holding civilians against their will as a deterrent from
enemy aas. Without su evidence, Congress decided to radically
broaden the definition of what constitutes human shields. A 2009
House resolution passed with only five dissenting votes called “on all
352
nations … to condemn Hamas for deliberately embedding its
fighters, leaders and weapons in private homes, sools, mosques,
hospitals and otherwise using Palestinian civilians as human
shields.”24 Su a sweeping redefinition asserts that if a Hamas leader
lives in his own private home in a residential neighborhood, aends
a nearby mosque and seeks admiance in a local hospital, Hamas is
thereby using “human shields” and Israel therefore is not responsible
for the civilian deaths from bombing those areas. is has dangerous
ramifications when one considers that the vast majority of leaders of
most governments and political parties live in private homes in
civilian neighborhoods, go to local houses of worship and e in to
hospitals when si or injured, along with ordinary civilians.
Furthermore, given that the armed wing of Hamas is a militia rather
than a standing army, virtually all of their fighters live in private
homes and go to neighborhood mosques and local hospitals as well.
In short, a large bipartisan majority in the U.S. Congress has
advanced a radical and dangerous reinterpretation of international
humanitarian law that would allow virtually any country with
superior air power or long-range artillery to get away with war
crimes.
It is also important to note that, even if Hamas had used human
shields in the narrower legal definition of the term, it still does not
absolve Israel from its obligation to avoid civilian casualties. e
Geneva Conventions make it clear that even if one side is shielding
itself behind civilians, su a violation “shall not release the Parties
to the conflict from their legal obligations with respect to the civilian
population and civilians.”25 Similarly, as Human Rights Wat noted,
even the presence of armed personnel and weapons near civilian
areas “does not release Israel from its obligations to take all feasible
precautions to minimize harm to civilians and civilian property
during military operations.”26
e bipartisan resolution not only appeared designed to
undermine international humanitarian law, it sought to resurrect a
353
fallacy that has long been rejected by Western legal thought. In an
effort to absolve Israel for the hundreds of civilian casualties it was
inflicting with U.S.-supplied weaponry, the House resolution called
on all nations “to lay blame both for the breaking of the calm and for
subsequent civilian casualties in Gaza precisely where blame
belongs, that is, on Hamas. [emphasis added]”27 Hamas can certainly
be faulted for its decision to not renew the 2008 ceasefire, along with
its own war crimes. at does not, however, absolve Israel of its
responsibility under international humanitarian law for the far
greater civilian deaths its armed forces had inflicted upon the
Palestinians in Gaza. Indeed, it has long been a principle of Western
jurisprudence that someone who is the proximate cause of a crime
cannot claim innocence simply because of the influence of another
party. e goal of this resolution, apparently, is to reverse this
longstanding legal principle.
354
U.S. opposition to a U.N. role in upholding
human rights
While the majority of Middle Eastern governments engage in serious
human rights violations, the fact that most of Israel’s human rights
abuses take place in non-self-governing territories outside of its
internationally-recognized borders places these violations of
international humanitarian law under special scrutiny of
international organizations, particularly the United Nations.
Nonetheless, the United States has made it a priority to limit the
U.N.’s ability to address international concerns regarding Israeli
violations of international humanitarian law. In the United Nations
General Assembly, the United States has repeatedly found itself as
the only country except for Israel itself (sometimes joined by
countries economically dependent on the United States, su as the
three countries whi emerged from the former U.S. Pacific Island
Trust Territories) to vote against resolutions condemning Israeli
human rights violations.28 Resolutions critical of Israel passed by the
U.N. Security Council have been more problematic for the United
States since su resolutions are legally binding and enforceable. As
a result, the United States has used nearly half of its eighty-four
vetoes cast since 1984 to blo resolutions critical of Israeli violations
of international humanitarian law. Recent examples have included
resolutions criticizing ongoing Israeli violations of the Fourth
Geneva Convention in the occupied West Bank (1997), the
establishment of an unarmed human rights observer force in the
occupied Palestinian territories (2001), deploring the killing of U.N.
employees and destruction of a World Food Program warehouse by
Israeli occupation forces (2002), calling on Israel to cease
construction of a security barrier inside occupied territories (2003),
355
deploring Israeli assassinations of alleged Palestinian militants
(2004), and opposition to Israel expanding its illegal selements on
the West Bank (2011).
Successive U.S. administrations supported a number of resolutions
requiring Israel to comply with provisions of the Fourth Geneva
Convention following the 1967 Israeli conquest of the Palestinian
West Bank, su as a call to withdraw from selements. However,
U.S. policy since the Clinton Administration has been that the
United Nations should no longer have any independent role in the
Israeli–Palestinian conflict, arguing that the U.N. resolutions have
been superseded by the Oslo Accords, signed by Israel and the
Palestine Liberation Organization in 1993. As a result, according to
this argument, the United Nations no longer has the power to
address su human rights issues as the fate of Palestinian refugees,
Israeli selements, and the status of Jerusalem.29 is aempt to
unilaterally negate the authority of the United Nations, however, is
not shared by the international community. No U.N. resolution can
be rescinded without a vote of the body in question. Neither the U.N.
Secretary General nor any other member of the Security Council
agrees with the U.S. assessment discounting the relevance of the
resolutions. Furthermore, no bilateral agreement between two
parties can supersede the authority of the United Nations Security
Council. is is especially true when one of the two parties (in this
case, the Palestinians) has made it clear that su resolutions are still
very relevant.
For example, in defending the Obama administration’s veto to the
2011 resolution against the expansion of Israeli selements,
Secretary of State Hillary Clinton—who, as a senator, was an
outspoken defender of Israel’s colonization efforts and a critic of the
United Nations30–insisted that while the Obama administration
supported the idea of a selement freeze, “We have consistently over
many years said that the United Nations Security Council – and
resolutions that would come before the Security Council – is not the
356
right vehicle to advance the goal.”31 Similarly, U.S. ambassador to the
United Nations Susan Rice expressed concern that, if they allowed
the resolution to pass, it would encourage parties seeking redress to
violations of international humanitarian law “to return to the
Security Council whenever they rea an impasse.”32
is is part of a broader effort by successive U.S. administrations
to allenge the U.N.’s jurisdiction regarding international
humanitarian law in the West Bank and Gaza Strip. e United
Nations has jurisdiction over the human rights situation in the West
Bank and the Gaza Strip because, as territories under belligerent
occupation, they fall under international humanitarian statutes su
as the Fourth Geneva Convention. As a result, beginning early in the
Clinton administration, the U.S. government began referring to these
occupied territories, as well as the Golan Heights, as ‘disputed
territories.’ Not only does the term ‘disputed territories’ imply that
both sides have an equally valid claim to territories conquered by
Israel in the June 1967 war, disputed territories—unlike occupied
territories—do not fall under the Fourth Geneva Convention.
e United States also has sought to undermine the authority of
the International Court of Justice in addressing international
humanitarian law. When the United States vetoed a 2004 U.N.
Security Council resolution against Israel building a separation
barrier deep inside the occupied West Bank, the General Assembly
voted to place the question before the World Court for an advisory
opinion. e court ruled in July that while the Israeli government
could build su a barrier along its internationally-recognized
border, the construction of a separation wall running through the
occupied Palestinian West Bank was illegal.33 e Bush
administration denounced the World Court’s 14–1 advisory ruling,34
arguing that the wall’s route should only be determined through the
U.S.-managed negotiations between the Palestinians and the Israeli
government.35 is is despite the fact that substantive negotiations
had been unilaterally suspended by the Israeli government since
357
early 2001 and, when negotiations have taken place, the United
States has sidelined consideration of international humanitarian law.
Support for the Bush administration’s opposition to the World Court
was bipartisan. e U.S. House of Representatives—by an
overwhelming bipartisan 361–45 majority—voted to deplore the
World Court’s decision and commended President Bush for “his
leadership in marshaling opposition to the misuse of the ICJ.”36 e
resolution also warned against the international community utilizing
international humanitarian law in regard to the occupied West Bank,
stating that nations would “risk a strongly negative impact on their
relationship with the people and Government of the United States
should they use the ICJ’s advisory judgment as an excuse to
interfere” with the U.S.-managed peace process.” 37
A particular target of the U.S. government has been the United
Nations Human Rights Council (UNHRC). e UNHRC found itself
the target of the Obama administration and Congress in 2014 when
it voted to establish a commission of inquiry looking into “all
violations of international humanitarian law and international
human rights law” in the hostilities in Gaza.38 e United States was
the only one of the UNHRC’s 47 members to vote against
establishing the commission. In response to its establishment, nearly
150 members of the House signed a leer to U.N. High
Commissioner for Human Rights, Navi Pillay, protesting the
UNHRC’s decision “to unjustly probe alleged war crimes” by a
nation simply “defending its citizens from roet aas and terror
tunnels.”39 Similarly, a Senate leer to U.N. Secretary General Ban Ki
Moon denounced the UNHRC for investigating possible Israeli war
crimes, insisting that Israel has “worked assiduously to minimize
civilian casualties.” e full ambers of both the House40 and
Senate41 also went on record condemning the U.N. investigation as
well, with Democratic leader Reid, on the Senate floor, declaring he
was “disgusted” that the UNHRC would adopt a resolution “accusing
Israel of human rights violations in the ongoing Gaza conflict,”
358
calling su accusations “anti-Israel.”42 e findings of the
Commission, aired by former New York Supreme Court judge
Mary McGowan Davis, were released in June 2015 and cited
extensive violations of international humanitarian law by both sides,
confirming findings by other international and Israeli human rights
groups.43
Part of the U.S. effort to undermine international humanitarian
law is through insisting that documentation of Israeli war crimes is
part of an effort to deny Israel’s right to self-defense and even its
right to exist. For example, in 2015, Secretary of State John Kerry
insisted that su UNHRC investigations were designed to
“arbitrarily and regularly delegitimize and isolate Israel.” Similarly, a
2009 Congressional resolution, passed by a wide bipartisan majority,
claimed that a UNHRC report citing evidence that both Israel and
Hamas violated international humanitarian law was somehow
designed “to delegitimize the democratic State of Israel and deny it
the right to defend its citizens and its existence,” warning that the
report “can be used to delegitimize other democracies and deny
them the same right.”
Despite the fact that the U.S. government has long accused the
UNHRC—despite recent publications of highly-critical reports of
human rights abuses by Syria, Sudan, and other countries—of an
anti-Israel bias, both the Obama administration and Congress have
insisted that the issue of possible war crimes by Israeli and Hamas
forces documented in the 2009 and 2014 investigations stay confined
to the UNHRC. e reason for this apparent contradiction is that if
the maer was taken to the U.N. Security Council, as recommended
by the investigations, it would place debate on violations of
international humanitarian law by a key U.S. ally before a body that,
unlike the UNHRC, has an enforcement meanism. It would also
allow far greater media exposure of Israeli war crimes, the bulk of
whi were implemented using U.S. weapons systems and
ordinance. And, since neither Israel nor Hamas are parties to the
359
International Criminal Court, Israelis and Palestinians suspected of
war crimes could not face justice at the ICC unless it was authorized
by the Security Council. e apparent intent, then, was that su
war criminals be allowed to escape prosecution.
360
Conclusion
In certain respects, the efforts by the U.S. government to undermine
the enforcement of international humanitarian law are not unique to
Israel. During the 1980s, for example, the Reagan administration and
Congress also tried to undermine the credibility of the U.N. and
human rights organizations when they provided evidence of war
crimes by U.S. allies in Central America. In recent decades,
successive administrations and Congresses of both parties have also
ignored, downplayed, rationalized, and covered up for violations of
international humanitarian law by allied governments in Saudi
Arabia, Indonesia, Turkey, Colombia, Morocco, and elsewhere. Yet,
while U.S. support for human rights and international law has
always been uneven, the vehemence with whi the U.S.
government has in recent years aempted to undermine
international humanitarian law, particularly in the case of Israel, has
never been greater.
ere is certainly an exceptionally high degree of political
polarization regarding Israel. For example, ideological and
geopolitical factors have played a role in the disproportionate
aention Israeli violations of international humanitarian law have
received in certain U.N. bodies, su as the UNHRC, compared with
some other countries. Similarly, ideological geopolitical factors,
along with domestic politics, have certainly played a role in U.S.
defense of Israeli violations of international humanitarian law.
However, the primary motivation for U.S. policy may not simply
be that of defending Israel, particularly since su violations of
international humanitarian law and killing of civilians by the Israeli
government arguably hurts Israel’s legitimate security needs in the
long run. Instead, U.S. policy may be based in part from a desire to
361
prevent the kind of precedents whi could serve as a deterrent
against violations of international humanitarian law by the United
States in its ‘global war on terrorism.’44 Insisting that large-scale
killings of civilians is legitimate as long as you are fighting
‘terrorists,’ that the World Court has no jurisdiction regarding
questions of international humanitarian law in occupied territories,
and reputable international jurists and human rights investigators
cannot be trusted provides greater latitude for the United States to
engage in su violations of international humanitarian law as well.
Similarly, mu of the U.S. opposition to the 2004 World Court
ruling on the Israeli separation barrier could be rooted in its
reiteration that member states of binding treaties, conventions and
arters su as the Fourth Geneva Convention and the U.N. Charter
are obliged to ensure that other member states live up to their legal
obligations under those agreements. Specifically, the court insisted
that every country that is party to the Fourth Geneva Convention
must “ensure compliance by Israel with international humanitarian
law as embodied in that Convention.”45 is principle of universality
may be what is particularly troubling for U.S. policy makers. Any
su strict and uniform application of international law would
interfere with U.S. policy objectives in the region, whi rely heavily
on the use of military force, including conquest and occupation,
subjecting the United States to principles of international legal
principles related to human rights. is is why any aempt to
enforce international humanitarian law must be met by slander,
condemnation and other aas against the credibility of the
international organizations, non-governmental organizations, or any
other body whi suggests that the United States and its allies are
not somehow exempt from su legal obligations.
By encouraging impunity, as it does when allowing Israel to
continue its illegal colonization of the occupied West Bank and
defending its aas on civilian targets in the Gaza Strip and
elsewhere, U.S. policy undermines the prospects for peace. As long
362
as there is no peace, there will likely be an increase in support for
extremist groups that thrive in situations of war, instability, and
deprivation.46 Support for impunity also helps excuse extremist
tactics of targeting civilians, as it can be justified by arguments that
if countries as powerful as Israel and the United States are not bound
by international legal norms, why should less powerful actors be
constrained? It is therefore in the long-term interest of Israel, the
United States, and every other nation to recognize and uphold
international humanitarian law, for there is ultimately no
contradiction between upholding international human rights norms
and defending national security—indeed, they should be seen as
mutually constitutive.
363
Notes
1 www.ohr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=134 (accessed
September 4, 2016). Goldstone later disclosed that he could no longer categorically stand
by some conclusions of a five-page section of the 450-page report as a result of his
reviewing subsequent evidence, but he stood by the rest of the commission’s findings.
2 International Commiees of the Red Cross, Convention (IV) Relative to the Protection of
Civilian Persons in Time of War. Geneva, 12 August, 1949.
3 hp://fmep.org/resource/u-s-state-department-legal-advisor-on-israeli-selements/
(accessed September 4, 2016).
4 International Court of Justice, “Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory,” July 9, 2004.
5 www.nybooks.com/articles/arives/2001/aug/09/camp-david-the-tragedy-of-errors/
(accessed September 4, 2016).
6 Steve Clemons, “Piering, Hills, Sullivan, Beinart, Dobbins, More Ask Obama
Administration to Support U.N. Resolution Condemning Illegal Israeli Selements,”
Washington Note, January 19, 2011 hp://washingtonnote.com/piering_hills/. Obama
also placed himself to the right of the liberal and mainstream Jewish community, the
majority of whom—according to public opinion polls—believe the United States should
take a harder line against illegal selements. Moderate pro-Israel groups like J Street
and Americans for Peace Now had encouraged President Obama not to veto the
resolution, but the president rejected their pleas, instead allying himself with su right-
wing groups as the American Israel Public Affairs Commiee (AIPAC).
7 Human Rights Wat, “Israel: U.S. Veto on Selements Undermines International Law,”
February 18, 2011.
8 Leer, Curt Goering, Senior Deputy Executive Director, Amnesty International, to
Secretary of State Condoleezza Rice, January 2, 2009.
9 Senate Resolution 10, 111th Congress, 1st session, January 8, 2009.
364
10 House Resolution 34, 111th Congress, 1st session, January 9, 2009.
11 “Operation ‘Cast Lead:’ 22 Days of Death and Destruction,” Amnesty International, July
2, 2009.
12 See, for example, “Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza,”
Human Rights Wat, Mar 25, 2009.
13 “Onslaught: Israel’s Aa on Gaza and the Rule of Law,” National Lawyers Guild, 2009.
14 “B`Tselem’s Investigation of Fatalities in Operation Cast Lead,” B`Tselem, September 9,
2009.
15 United Nations Human Rights Council, “Report of the United Nations Fact-Finding
Mission on the Gaza Conflict,” A/HRC/12/48 September 25, 2009.
16 www.amnesty.org/en/latest/news/2014/07/israelgaza-conflict-questions-and-answers/
(accessed September 4, 2016).
17 Breaking the Silence, “is is How We Fought in Gaza: Soldiers’ Testimonies and
Photographs From Operation ‘Protective Edge’ (2014)” pp. 16, 20.
18 www.hrw.org/news/2014/08/04/gaza-israeli-soldiers-shoot-and-kill-fleeing-civilians
(accessed September 4, 2016).
19 www.btselem.org/press_release/20140801_a_dali_building_bombing (accessed
September 4, 2016).
20 www.unrwa.org/newsroom/official-statements/unrwa-strongly-condemns-israeli-
shelling-its-sool-gaza-serious (accessed September 4, 2016).
21 www.congress.gov/bill/113th-congress/house-concurrent-resolution/107/text (accessed
September 4, 2016).
22 www.congress.gov/bill/113th-congress/senate-resolution/526/text (accessed September 4,
2016).
23 As human rights investigators anowledged, however, the nature of urban warfare,
particularly in a territory as densely populated as the Gaza Strip, makes the proximity
of retreating fighters and their equipment to civilians unavoidable in many cases.
24 www.gpo.gov/fdsys/pkg/BILLS-111hres34ih/pdf/BILLS-111hres34ih.pdf (accessed
September 4, 2016).
365
25 Protocol I, Geneva Conventions, Part IV, Section 1, Chapter 1, Article 51.
26 “Lebanon/Israel: Israel Must Allow Civilians Safe Passage,” Human Rights Wat, July
20, 2006. e argument by those defend the killing of civilians who are allegedly being
used as human shields is comparable to claiming that it would be legitimate for a SWAT
team, in order to kill some bank robbers shooting at them, to also kill bank employees
and customers who were being held hostage.
27 www.gpo.gov/fdsys/pkg/BILLS-111hres34ih/pdf/BILLS-111hres34ih.pdf (accessed
September 4, 2016).
28 Other resolutions, while still passing by comfortable margins, have been joined by a
sizable number of negative or abstaining votes—primarily from European nations—
because, even when the resolutions themselves were in most part valid, they were most
strongly supported by some of the world’s most tyrannical governments whi were
guilty of even worse human rights abuses. is is certainly not a unique phenomenon,
however. During the Cold War, repressive right-wing dictatorships would oen join the
U.S.-led efforts to condemn human rights violations by Communist governments and,
likewise, various le-wing dictatorships would join the Soviet Union in condemnation
of rightist regimes.
29 U.S. Permanent Representative to the United Nations Madeleine Albright, leer to the
United Nations General Assembly, August 8, 1994.
30 hp://fpif.org/hillary_clinton_on_international_law/ (accessed September 4, 2016).
31 www.voanews.com/content/negotiations-continue-at-un-on-palestinian-selements-
resolution-116429859/172722.html (accessed September 4, 2016).
32 hp://usun.state.gov/briefing/statements/2011/156816.htm (accessed September 4, 2016).
33 International Court of Justice, “Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory,” July 9, 2004.
34 U.S. judge omas Buergenthal was the only dissenter, largely cited a tenical
argument, but joining the majority in anowledging the West Bank’s status as a
territory under foreign belligerent occupation.
35 Office of the Press Secretary, White House, “Press Gaggle by Sco McClellan,” July 9,
2004.
366
36 U.S. House of Representatives, 108th Congress, 2nd session, H. Res. 713.
37 Ibid. In the fieen years between the commencement of the U.S-led negotiations and the
resolution, the number of illegal Israeli selements on occupied Palestinian land had
more than doubled, raising questions as to whether there was any hope in stopping the
colonization drive under U.S. auspices.
38 www.reuters.com/article/2014/08/11/us-mideast-gaza-un-inquiry-
idUSKBN0GB1QR20140811 (accessed September 4, 2016).
39
hp://israel.house.gov/sites/israel.house.gov/files/wysiwyg_uploaded/UN%20HRC%20Le
er%20on%20Hamas%20Human%20Shields%20-%20FINAL%20SIGNATURES.pdf
(accessed September 4, 2016).
40 www.congress.gov/bill/113th-congress/house-concurrent-resolution/107/text (accessed
September 4, 2016).
41 hp://thomas.loc.gov/cgi-bin/query/z?c113:S.RES.526 (accessed September 4, 2016).
42 www.reid.senate.gov/press_releases/2014-30-07-reid-remarks-condemning-the-united-
nations-human-rights-council-resolution-against-israel#.U9pEabHML2o (accessed
September 4, 2016).
43 www.ohr.org/EN/HRBodies/HRC/CoIGazaConflict/Pages/ReportCoIGaza.aspx
(accessed September 4, 2016).
44 For example, Democratic Congressman Gene Green of Texas claimed that the ICJ ruling
“sets dangerous precedents in international law that hinder and impede United States
antiterrorism efforts.” (Congressional Record, 108th Congress, 2nd session, p. H5774.)
45 International Court of Justice, op. cit.
46 Sriram, Martin-Ortega, and Herman, “War, Conflict, and Human Rights” in The
International Studies Encyclopedia (2010).
367
Selected Bibliography
Akram, S., Dumper, M., Lynk, M., and Scobbie, I. eds. International
Law and the Israeli-Palestinian Conflict: A Rights-Based
Approach to Middle East Peace. London: Routledge, 2011.
Amnesty International. Operation Cast Lead: 22 Days of Death and
Destruction, 2009. Available at:
www.amnesty.org/en/documents/MDE15/015/2009/en/ (accessed
September 4, 2016).
Aruri, N. Dishonest Broker: The Role of the United States in Palestine
and Israel. Boston: South End Press, 2003.
Bennis, P. Israeli-Palestinian Conflict: A Primer. New York: Olive
Bran Press, 2012.
Bisharat, G. “Israel’s invasion of Gaza in International Law,” in
Denver Journal of International Law and Policy vol. 38 (2009), 41
–114.
Bisharat, G. “Violence’s Law: Israel’s Campaign to Transform
International Legal Norms,” in Journal of Palestine Studies vol.
XLII, no. 3, (Spring 2013): 68–84.
Falk, R. Palestine: The Legitimacy of Hope. Charloesville, VA: Just
World Books, 2014.
Horowitz, A., Ratner, L., and Weiss P., eds. The Goldstone Report:
The Legacy of the Landmark Investigation of the Gaza Conflict.
Washington D.C.: e Nation Books, 2001.
Human Rights Wat. Why They Died: Civilian Casualties in
Lebanon during the 2006 War, 2003. Available at:
www.hrw.org/report/2007/09/05/why-they-died/civilian-
casualties-lebanon-during-2006-war (accessed September 4,
2016).
368
Human Rights Wat. “Israel/Palestine: Unlawful Israeli Airstrikes
Kill Civilians,” 2014. Available at:
www.hrw.org/news/2014/07/15/israel/palestine-unlawful-israeli-
airstrikes-kill-civilians (accessed September 4, 2016).
International Court of Justice. “Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory,”
2004. Available at: www.icj-cij.org/doet/files/131/1671.pdf
(accessed September 4, 2016).
United Nations Human Rights Council. “Report of the Independent
International Fact-finding Mission to Investigate the Implications
of the Israeli Selements on the Civil, Political, Economic, Social
and Cultural Rights of the Palestinian People roughout the
Occupied Palestinian Territory, Including East Jerusalem,” 2012.
Available at:
www.ohr.org/Documents/HRBodies/HRCouncil/RegularSessio
n/Session19/FFM/FFMSelements.pdf (accessed September 4,
2016).
Stephen Z. “Congress’s War on Lebanon,” Middle East Policy vol.
XVII, no. 4 (Winter 2010), 53–66.
Stephen Zunes, “Congress, the Gaza War, and International
Humanitarian Law,” Middle East Policy, Vol. XVII; No. 2 (Spring
2010), 68–81.
Stephen Zunes, “e United States Reaction to the International
Court of Justice Ruling on Israel’s Separation Barrier,” Middle
East Policy vol. XII, no. 1 (January 2005), 72–84.
369
Section IV
A transnational and international
framework: human rights beyond
borders
370
11
Rival Transnational Advocacy
Networks and Middle East Politics at
the U.N. Human Rights Council
Laura K. Landolt
371
Introduction
is apter examines conflict between and within rival human
rights transnational advocacy networks (TANs) over political and
civil rights in Middle East and North African (MENA) states at the
U.N. Human Rights Council (HRC). Since the HRC’s 2006 creation,
domestic and international human rights NGOs initiated and/or
deepened their U.N. advocacy as a result of political opportunities at
the HRC’s new meanism, Universal Periodic Review (UPR).1
Although most NGOs at the UPR/HRC are critical of government
practices, a surprising number appear sympathetic to governments—
even governments that openly abuse human rights.
e apter identifies competing sets of ‘critical’ and
‘government-sympathetic’ NGOs and their respective partners
(states, donors, U.N. officials), as rival TANs. Identifying and
analyzing rival networks at the HRC is important because it
illuminates the dynamics of political struggles over human rights,
helps explain the durability of repressive regimes, and suggests that
past advances in human rights protections may be reversible.
e conflict between rival human rights TANs is perhaps most
dramatic in relation to the reviews of MENA states. During
negotiations over the new HRC, throughout the institution-building
period and in every UPR focused on the region, MENA states were
conspicuous in their coordinated efforts to obstruct critical NGOs.
Failing to prevent critical NGOs from participating at the HRC/UPR,
MENA states collaborate with government-sympathetic NGOs in
order to undermine and impede them. is government-sympathetic
TAN presents a serious obstacle to domestic and international
pressure for human rights protections in MENA states, and is
working hard to deinstitutionalize human rights norms at the U.N.
372
e following pages first examine theoretical debate over NGO
and TAN advocacy at the international and domestic levels, and then
consider some of the causes, dynamics and effects of political conflict
within and between rival human rights TANs focused on MENA
states at the HRC.
373
eory: human rights and transnational
advocacy
Identification and analysis of rival TANs fills gaps in constructivist
resear. e constructivist “spiral model” drew valuable aention to
the dynamic in whi domestic human rights NGOs join TANs to
encourage intergovernmental organizations (IGOs) and sympathetic
states to pressure abusive governments to implement human rights
protections.2 Constructivists defined TANs as “INGOs and
foundations whi are loosely connected to officials working for
human rights IOs as well as for national governments,” all of whom
were “bound together by shared values, a common discourse, and
dense exanges of information and services.”3 Constructivists
legitimized aention to NGOs as actors facilitating an “international
‘norms cascade,’ as … human rights norms spread rapidly” beginning
in 1985, when state officials increasingly adopted human rights
language, ratified international treaties, and institutionalized
domestic protections.4
As the human rights ‘norms cascade’ dwindles or even reverses in
the MENA and elsewhere, however, international relations solars
(including contemporary constructivists5) identify shortcomings in
early constructivist analysis. First, constructivism suffered from
selection bias in that it typically considered the successful diffusion
of liberal norms. As a result, constructivists fostered durable
assumptions that norm cascades are inevitable, and that NGOs and
TANs are innately and homogenously progressive, motivated by
‘principled beliefs’ rather than material interests.6
Constructivists’ assertion that state ‘socialization’ into new norms
begins with officials’ adoption of human rights discourse also
underestimated the possibility of indefinite instrumental use of the
374
language.7 Indeed, authoritarian resistance to human rights
protections includes elite learning about how to manipulate human
rights discourse, while states may also instrumentally ratify human
rights treaties and superficially institutionalize sham human rights
protections.
Finally, constructivists rarely examined political struggles within
and between TANs (or between states and NGOs) at IGOs like the
U.N. Human Rights Council (HRC). is is because they emphasized
social factors (power of ideas) over material factors (power of states)
in explanations of norm diffusion, and because they conceptualized
IGOs mainly as unitary actors or as individual officials and not also
as sites of political struggle and/or as agents of states.8 As a result,
constructivists did not aend to authoritarian state resistance to
liberal norms in IGOs.
Lingering assumptions about the aracteristics and practices of
NGOs and TANs are also subject to revision. Recent resear on
conservative and rival TANs complicates the notion that TANs are
innately progressive, or that liberal norm diffusion is inevitable. is
apter loosely adopts Clifford Bob’s ‘rival network’ approa by
identifying a ‘government-sympathetic’ human rights TAN that
opposes the critical human rights TAN originally identified by
constructivists. Applying countermovement theory to the analysis of
transnational networks, Bob considers “competing networks” as
“ideologically opposed blocs rather than seeing one side as reactive
or ‘counter’.”9 By viewing networks as ideological competitors, he
gains purase on the competing interests that animate and prolong
these political struggles.
In addition, TAN members do not necessarily share values and
can behave opportunistically. Recent resear using organization
theory and/or historical institutionalism recasts analysis of NGOs as
actors that are “motivated by both principled beliefs as well as
instrumental concerns.”10 Indeed, NGOs compete for “resources,
375
visibility, prestige, and the claiming of success” as well as aention
to particular NGO issues.11
Because NGOs are both principled and instrumental actors, TANs
also exhibit internal conflict. For William DeMars, a network exists
where NGOs “share any common partners” including “parts of
governments, U.N. agencies, regional intergovernmental
organizations, foundations, solars, religious communities,
professional associations, journalists, and even warlords and private
corporations.”12 DeMars and Dijkzeul encourage solars to “follow
the partners” to detect internal political conflict, contending that
NGO networks, encompassing partners with potentially dissonant
agendas, both institutionalize and structure international
cooperation and conflict.13
Cooperation and conflict within the critical human rights TAN
occurs not just between domestic and international, Northern and
Southern NGOs, but also between NGOs and states.14 At the
HRC/UPR, critical I/NGOs have strong connections with liberal
states through whi they share information and material resources
(from states to NGOs). Still, critical NGOs confront the divided
loyalties of liberal states, whi usually refuse to take a critical stand
on an abusive state when that state is geostrategically important
(discussed below).
Nevertheless, over the past several decades critical NGOs utilized
conflicts between liberal and authoritarian states to strengthen U.N.
human rights meanisms, expand NGO participation and bring
aention to state abuses at the old Commission on Human Rights
(CHR).15 When the Human Rights Council (HRC) replaced the CHR
in 2006, critical NGOs and liberal states also collaborated to build a
new meanism, the Universal Periodic Review (UPR), whi
reviews all U.N. members’ human rights practices every 4.5 years.
During the UPR institution-building period, critical NGOs and
liberal states expanded and deepened NGO participation against
coordinated opposition by MENA and other authoritarian states. As
376
a result, NGOs gained the opportunity to submit one of three
foundation documents in ea state’s review.
While regular reviews of all U.N. members and greater NGO
space at the HRC/UPR encouraged increased participation by critical
domestic and international NGOs, it also aracted government-
sympathetic NGOs (GSNGOs).16 According to the Cairo Institute for
Human Rights Studies (CIHRS), domestic MENA GSNGOs increased
in numbers in 2009 and subsequently expanded their presence at the
HRC/UPR.17 If the CIHRS timeline is correct, authoritarian state
experiences with critical NGOs in the UPR’s first year (2008) may
have encouraged them to foster and collaborate more frequently
with GSNGOs—thus strengthening a nascent government-
sympathetic network within and beyond the MENA.
Elsewhere I argue that Egypt’s 2010 UPR contributed to the Tahrir
Uprising.18 Whether this is true or not, authoritarian MENA states
take the UPR very seriously. One diplomat observed that “[t]en
years ago the Commission on Human Rights was not so developed
that states saw it as a threat. Now [at the HRC/UPR] states see that
civil society can have an impact and are being [listened to] by other
states.”19
377
Critical and government-sympathetic NGOs
Although Government Organized Nongovernmental Organizations
(GONGOs) are nothing new, systematic aention to them appears
infrequently in comparative resear, and even less so in
international relations. Interview respondents who discussed
GONGOs invariably emphasized the shortcomings of that term and
fluidity of the category. e common understanding is that an NGO
sympathetic to state abuses may not actually be ‘government-
organized’. As an OHCHR official aptly noted, GONGOs are a
“legitimate expression of certain feelings … Even GONGOs exist in
Western countries—you can find NGO leaders who have a clear
political perspective supporting one side or a party. You can’t avoid
this phenomenon.”20
e term ‘government-sympathetic NGOs’ (GSNGOs), respects
this ambiguity and emphasizes their ideas and practices, rather than
origins. is term was developed by Landolt and Woo, who identify
five types of NGO statements about states at the UPR: 1)
systematically critical, 2) critical, 3) reformist, 4) sympathetic, and 5)
laudatory.21 ‘Reformist’ NGOs occupy a grey area separating critical
from sympathetic NGOs. Reformists are ‘insiders’ who work with
government, but also criticize some government abuses. One
respondent described that grey area as constantly shiing according
to political circumstance, requiring reformists to ask themselves:
“When are you corrupted, and when are you using your influence
[on government] for positive ange?”22
In this apter, ‘GSNGOs’ refers to NGOs taking sympathetic and
laudatory positions toward states. GSNGOs may only lightly critique
and more oen praise their home government, whereas critical
NGOs critique their home government as mu as they criticize
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other states.23 By this definition, liberal states also create and aract
GSNGOs. Freedom House, whi respondents identified as a US
GSNGO because it does not criticize the US government, is different
in degree but not in kind from U.N. Wat. Critical NGO
respondents identify U.N. Wat as an Israeli GSNGO for its refusal
to report Israeli abuses, but also because it seeks to discredit critical
NGO information about Israeli abuses and related HRC action.
All NGOs, including human rights NGOs, contain a latent or
overt political program—whether critical of, or sympathetic to,
government. DeMars views an NGO as both an actor and a site of
“dynamic cooperation and conflict among its partners” arguing that
“NGOs are at least as mu partner-driven as principle-driven.”24
Most states aract sympathetic NGOs at the HRC/UPR, but this
apter focuses narrowly on the conflict between and within rival
TANs over the human rights practices of MENA states. Although
Freedom House sponsored the participation of government-
sympathetic Egyptian NGOs at Egypt’s 2010 UPR, liberal state
GSNGOs may also join the critical TAN on reviews of MENA
states.25 is observation underscores the dynamic and historically-
contingent nature of TANs, but does not disprove the existence of
rival network conflict examined here. Critical NGOs far outnumber
GSNGOs in the critical TAN focused on the MENA, while there are
no critical NGOs in the government-sympathetic TAN.
If an NGO is constituted by the ‘latent agendas’ of network
partners, then critical NGOs and GSNGOs in their respective TANs
are influenced by partner states, NGOs, IGOs, donors, business, and
other interests.26 Referring to liberal state funding of critical NGOs
and the question of autonomy, one diplomat asked, “If you’re a
purist about it, how many NGOs working in the Human Rights
Council don’t receive any money from governments? … Some have a
large or small donor base … an independent course [is] easier when
you have a larger donor base”, meaning that an NGO can play
donors off against ea other and/or avoid single donor pressure by
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diversifying funding sources.27 While relative autonomy enhances
critical NGOs’ influence on states, it is as yet unclear how mu
influence over states GSNGOs might enjoy.
Both networks identify human rights as a valuable goal—but ea
gives it a different priority. e most striking difference between
them is a ‘rights versus security’28 calculus: the government-
sympathetic network conceptualizes national security as
oppositional to, and prioritizes it over, human rights; while the
critical network views human rights as essential to human security
and compatible with national security—although the US and other
liberal states have openly equivocated on the prioritization of human
rights since 2001. e government-sympathetic TAN can be viewed
as ‘framejaing’ critical NGOs’ message that human rights are
inviolable, and instead substituting a message that domestic security,
stability, sovereignty and/or other goals are (at least temporarily)
more important than human rights.29
e government-sympathetic TAN works very hard to
institutionalize this alternative ideological framework at the
HRC/UPR. As a result, the critical network’s past success at drawing
international aention to government human rights abuses and
institutionalizing human rights protections at the HRC is not
irreversible. One critical INGO respondent insisted that, aside from
advocating on specific human rights issues at the U.N., “we’re also
here to protect normative frameworks and meanisms … and
strengthen them [because] … the normative framework of human
rights is under constant aa. ere’s no guarantee that it will be
the same in ten years.”30
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NGOs in authoritarian MENA states
Authoritarian MENA states and GSNGOs externalize domestic
human rights politics at the HRC. At the domestic level a few states
refuse to allow independent NGOs to operate (e.g. Syria, Saudi
Arabia), and most practice heavy-handed repression su as banning
or closing down critical NGOs; diverting their resources to GSNGOs;
arging critical activists as spies; and imprisoning, torturing and/or
disappearing activists. To reduce external criticism, states also
practice more ‘subtle’ methods against critical NGOs.
Subtle repression includes threatening, imprisoning and/or
physically harming individual critical activists, since a single
example can intimidate domestic NGOs and external allies, and the
regime can argue that ill-treatment is not systematic.31 Subtle
methods also include defaming NGO activists as ‘foreign agents’ in
the media. Bob describes su action as “unbuilding” and
“deauthenticating” the rival network by intimidating “groups from
joining, accusing them of ‘treason!’ for taking comfort or mere ideas
from foreigners.”32 Authoritarian states also interfere in critical NGO
operations by “penetrating existing NGOs and modifying their
objectives and/or recruiting … politically influential elements of the
activist community.”33
Furthermore, states obstruct domestic NGO meetings and restrict
representatives’ ability to travel to external NGO or IGO events.
When they do leave the country, critical MENA human rights
activists:
… say that reprisals [for external work] are [now] more subtle … [Activists returning
from the HRC] might later be called in for interrogation or criminal arges—obscure,
unrelated [arges] months later—[even] basic administrative [questions for] … no good
reason …, and you can’t link it to [their] contact with the U.N… . Mostly there’s a
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massive effect of knowing what might happen. e threat [of reprisals at home] is only
a threat, but it has a illing effect. It’s preemptive repression.34
Institutional isomorphism across the MENA indicates that
authoritarian states share repressive practices.35 NGO laws duplicate
restrictive registration, reporting and foreign funding regulations.36
Rather than denying critical NGOs legal status, governments also
delay or fail to rule on NGO applications, leaving critical NGOs
vulnerable to government threats.
As critical NGOs emerged and became more politically prominent
in MENA states in the 1980s, and as external donors simultaneously
diverted development funding from states toward some of those
NGOs, state officials either established or fostered GSNGOs.
According to CIHRS, GSNGOs sometimes focus on “gaining
financial profits from international [donors] by claiming to be of
influence on the governments’ agenda” and, in doing so, divert
external donor funds and domestic human resources (paid and
voluntary) away from critical NGO competitors.37
Domestic GSNGOs undermine critical counterparts by diluting
domestic human rights discourse; presenting authoritarian states as
sincerely working to improve human rights practices (in their
information about and ‘tolerance’ by the state); intimidating critical
NGO representatives at public meetings; and providing a friendly
partner to satisfy the UPR requirement that states consult with
NGOs before preparing the national report.38 At the same time,
authoritarian states and GSNGOs collaborate to externalize these
practices at the U.N.39
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Government-sympathetic TAN practices
If the government-sympathetic network is gaining strength in the
MENA, Egypt is its fulcrum. Egypt distinguishes itself by domestic
innovations in NGO repression, but also by external efforts to
‘export repression’.40 At the CHR Egypt built a leadership position in
the African Group and the OIC, and during the HRC institution-
building process led, along with Algeria (African Group), Saudi
Arabia (Asian Group) and Pakistan (OIC), efforts by MENA and
other authoritarian states to limit NGO participation.41
Because they failed to blo NGO participation in the HRC,
MENA authoritarian states utilize formal and informal actions to
obstruct critical NGO participation. Indeed, the Arab Group may be
the “only [informal U.N. regional] group that [regularly] aas
NGOs at the HRC as a unit.”42 Since the UPR’s inception, Egypt and
Algeria lead MENA state efforts to disrupt critical NGO statements
by calling repeated points of order against them.43 To weaken the
critical TAN, authoritarian states also seek to replace critical officials
with government sympathizers in the OHCHR and treaty body
offices.
Even more dramatically, authoritarian states collaborate on the
ECOSOC Commiee on Non-Governmental Organizations to delay,
prevent and even suspend consultative status (and independent
access to U.N. proceedings) for critical NGOs, while hastening
approval for GSNGOs.44 Bob describes these activities as “activating
and deactivating institutions”—a process by whi networks “tilt the
institution’s rules in their favor–and against their enemies. If
possible, they maneuver to exclude or expel the rival [and] … pa …
[institutions] with stalwarts or sympathizers.”45
383
e most notorious instance of NGO Commiee repression of
critical MENA NGOs occurred when Algeria engineered the
suspension of consultative status for the Arab Commission for
Human Rights (ACHR) in 2009, and then obstructed an associated
Swiss NGO focused on Arab states, AlKarama, from acquiring the
same.46
Mr. Raid Mesli, Alkarama’s Director of the Legal Department, had … been appointed
as the [ACHR] representative in Geneva and was speaking on its behalf to the [HRC],
in a statement supported by Alkarama. Algeria argued that Mr. Mesli had … ‘been
convicted by an Algerian court on criminal arges of association with a terrorist
organisation’. Clearly, these accusations … against Mr. Mesli aer he was recognised as
a political refugee in Switzerland are nothing but a result of his work as a human rights
lawyer in Algeria, documenting human rights violations and defending political
prisoners. In addition, in 2013, Algeria, present at the [NGO] Commiee’[s] session as
an observer, made a very hostile declaration calling [on] the Commiee not to grant
Alkarama … consultative status as it would ‘allow terrorists to operate within the
U.N.’.47
Increasing numbers of GSNGOs at the UPR/HRC obstruct critical
NGO participation by taking up limited speaking time, and
presenting laudatory accounts of authoritarian states’ human rights
records.48 One respondent emphasized the ways that GSNGOs
misdirect aention to domestic human rights abuses:
[GONGOs] make the whole landscape … blurry. ere are a lot of them. at’s the
objective—states establish them to drown everyone. You’re one among many GONGOs
… Arab states’ real motive is to keep a good image. ey’re willing to put a lot of money
in these GONGOs … [S]ome GONGOs [appeared at a presession briefing by NGOs for
states on Iraq’s UPR.] … I want[ed] people to talk about sensitive issues [but w]hen
talking about Iraq—one of the [most repressive] countries in the region—[some
GONGOs brought up] issues that don’t maer so mu … [For example,] one
[GO]NGO brought up having an educational program in prisons. Are people not
tortured? [Torture] is more important [than la of education] … [On the issue of]
torture or no torture, [states say] the “real problem is overcrowding.” ey try to reshi
the focus on[to] issues that are more easily solved and not politically too sensitive. ey
can ask for money to build a new prison. Do they want to stop torture? No. A year ago
Mauritania was reviewed by the Commission against Torture—GONGOs were sent by
government. During the NGO briefings with experts there was a man from an ‘NGO’
called something like the ‘No Torture Network’. He said during the briefing that there
was ‘no torture in Mauritania’.49
384
A critical INGO respondent mentions increased competition with
GONGOs for speaking time and even being:
aaed by a GONGO. We had [lined up] since 7:30[am] to get on the speakers’ list.
When the gate opened we were … running to the U.N. building … like we were in a
race. An Iranian GONGO woman … was running—I was jostling for position with [her]
and … g[o]t in front of her on the escalators. A … GONGO man grabbed me by the arm
to pull me aside. [Critical NGOs activists] moved to my defense.50
HRC/UPR side events are also a place where NGOs can present
information to state officials and other NGOs, but can be especially
dangerous to critical domestic NGOs. One respondent recounted that
at critical NGO side events:
You see more permanent mission [state] representatives [who are] not happy. e
permanent missions … [take] photos of everyone in the room. Not just panelists but the
public. is is worrying for people going ba to the Arab world … e U.N. doesn’t do
anything. You can’t call security and say ‘No photos!’ States … always try to push the
other way.51
Authoritarian MENA states and associated GSNGOs are also known
for approaing and threatening critical NGOs in the HRC itself.52
One respondent noted that there were:
Several cases of NGO activists approaed in the Human Rights Council by hostile
states. Incredible! Who would believe that a state could threaten an NGO on the floor of
the U.N.? But it happens … the room can [also] be filled with GONGOs to intimidate
NGOs … with the possibility of reprisals.53
e Special Rapporteur on the rights to freedom of peaceful
assembly and of association has documented reprisals against critical
domestic NGOs working at the HRC su as “threats from State
officials for delivering statements at the Council (e.g. Bahrain, … and
Yemen); acts of torture and ill-treatment (e.g. Israel and United Arab
Emirates); … acts of surveillance (e.g. … United Arab Emirates); and
confiscation of passport/travel bans (e.g. … Israel, Saudi Arabia,
[and] United Arab Emirates).”54 Bahraini activists “have had their
names and pictures taken by State representatives and reproduced in
385
local newspapers and social media, and been accused of tarnishing
the image of their respective countries.”55 Finally, Saudi activists who
reported “human rights violations [to the U.N.] have been labelled as
‘terrorists’ or acting against Islam.”56
386
From reformism to government sympathy
Aention to conflict within TANs, NGOs and even individual
activists highlights the relative fluidity and contingency of TAN
membership, particularly among reformists. At Egypt’s 2014 UPR,
domestic political polarization and aversion to the Muslim
Brotherhood (MB) encouraged some reformists to sympathize with
the Sisi government. is position is most poignantly illustrated by
Hafez Abu Seada, Chairman of the Egyptian Organization for
Human Rights (EOHR), one of the oldest Egyptian human rights
NGOs. Now calling the EOHR a ‘GONGO’, some NGO respondents
question its membership in the critical network. According to one
respondent:
e EOHR was a leading organization in Egypt. ey [now] come to the Council—not
complaining about—but the reverse—defending government! … EOHR … say[s]: ‘What
INGOs and the media are saying [about the Sisi government’s human rights abuses
aer Morsi’s overthrow] is fabricated.’ is problem is most worrying—[because under
the current cradown in Egypt] the number of independent NGOs is shrinking—their
financial resources are shrinking … But the regime is always legitimating the process
with some NGOs … [it] finds some members of the human rights movement [to use] as
tools.57
By contrast, a number of critical Egyptian NGOs argued that the
deadline issued by the Sisi regime for NGO registration under
repressive Law 84/2002, five days aer Egypt’s 2014 UPR, signaled
that critical NGOs would suffer “reprisal or possible persecution” if
they aended the review.58 As a result, these critical NGOs
announced that they would not aend.
At an EOHR-organized side event aended by the author, Abu
Seada appeared on a panel that included an NGO representing
Egyptian police. While a person photographed audience members
(some of whom also photographed the photographer), the panel
387
detailed MB violence. Its primary talking point was an impassioned
plea to ‘go easy’ on judging the Sisi government’s human rights
practices because Egypt’s very existence required a violent response
to MB ‘terrorists’, and that Egypt was undertaking this task on
behalf of the world.
Abu Seada appeared vaguely uncomfortable or impatient with
more extreme GSNGO appeals. Meanwhile, panelist Mona Zulficar,
Egyptian feminist lawyer and human rights activist, former Vice
Chair of the HRC’s Advisory Commiee and current National
Council for Human Rights (NCHR)59 Board member (along with
Abu Seada), insisted that Egypt’s Minister of Social Solidarity
(MoSS) had assured her that the impending deadline for NGO
registration represented “no threat against NGOs.”
e next day I met with Abu Seada60 at a U.N. cafeteria. During
our conversation Zulficar and representatives of at least one other
reformist NGO and at least one government official stopped by or sat
at our table. Because of Egypt’s post-Morsi political polarization,
Abu Seada’s past bridging practice, as reformist ‘insider’ working
with both a repressive regime and critical NGO ‘outsiders’, has now
streted to the limit. Indeed, Abu Seada is positioned precisely
where NGOs diverge on the human rights/security dimension, while
liberal and authoritarian states oen converge. Liberal states,
particularly the U.S., are as unwilling as Abu Seada and other
secular reformist NGO activists to prioritize human rights over
regime security if the alternative is an MB (rather than secular)
dictatorship.
Domestic polarization has opened a yawning gap between
reformist and critical human rights NGOs, and at Egypt’s 2014 UPR
Abu Seada collaborated with GSNGOs. Abu Seada’s words
encapsulate this political position. Referring to the critical NGOs
who did not aend Egypt’s UPR for fear of government reprisals,
Abu Seada noted that there:
388
… is a allenge now facing NGOs in Egypt … I understand their fear. If they came [to
the UPR], they could face a critical situation in Egypt. ey have the right to feel this
fear [because of the deadline to register by] 10 November … Mona and me [sic] and
other NCHR groups are working hard on that issue and talked with the MoSS … to stop
proceedings against NGOs until the new law is passed … Government does not agree
with us and has its own … strategy to deal with NGOs … [is] means that all
organizations must register under Law 84 …, but I don’t know if [government] will …
[make] arrests or only pressure NGOs to register.61
During our conversation he emphasized, as do all GSNGOs, that
critical NGO language is “too harsh … I’m not willing to adopt the
spee of an opposition group … In my view NGOs … have to
pressure the government to ange, not use … revolutionary
language. We’re reformist, not revolutionary … government has to
fight against terrorism, and we have to fight for human rights.”62 I
replied,
is is the language used by the Egyptian government since the 1980s—that it can’t
conform to human rights standards because of its fight against terrorism. When you use
this language, you don’t leave yourself mu space for maneuver as a human rights
activist, do you?
Abu Seada responded:
We didn’t believe there was a terrorist war [under Mubarak], but now we believe there
is a terrorism [sic] war … I don’t agree with the government … using [the] discourse of
war to lose our freedom or … our rights … I have to work hard to ange … government
[policies]. I have no hope. Wait, I don’t mean I have no hope, but I don’t expect
government to agree. I’m optimistic. ere are voices inside government against NGOs,
opposition parties—[who] see journalists as enemies of the state … Every day the
government aas me and human rights groups … I want to construct a strategy that
isn’t a zero [sum] game.63
When I asked Abu Seada about accusations that the EOHR was now
a GONGO, he responded:
[T]he situation in Egypt is totally different aer 3 June [Morsi’s overthrow] … we have
a big clash about what happened … e [Sisi] government … commied to follow
international recommendations. At the same time I have a very strong position against
the [MB] and all extremists—they are more dangerous than even the Mubarak regime—
389
and I say this aer I was in prison for six months [under Mubarak] and was kied out
of the country for one year.64
Minutes aer Egypt’s UPR Working Group session, Sisi’s
government signaled its position on future autonomy for domestic
NGOs by appointing Fayza Abul Naga as national security advisor.
Abul Naga gained notoriety for opposition to external funding for
critical and reformist NGOs as Minister of International Cooperation
under Mubarak and the SCAF. Her 2012 prosecution of U.S.
democracy-promotion and human rights GSNGO65 personnel—both
U.S. and Egyptian, shoed the international diplomatic community
and precipitated a crisis in Egypt-U.S. relations.66 It also augured
poorly for critical Egyptian NGOs, who cannot hope to employ U.S.
pressure (or that of any other state) on Egypt to li domestic NGO
repression, if the U.S. cannot even dissuade Egypt from aaing
U.S. GSNGOs.
390
Notable internal TAN dynamics
Aention to conflict within rival TANs illuminates the fact that
network partners may work together opportunistically—sometimes
prioritizing values differently depending on time, context and issue
area. For example, liberal states’ participation in the critical TAN
does not mean that they are free of human rights abuses or
consistent in their loyalty to the network. When liberal states are not
threatened by highlighting the human rights abuses of a particular
state, they are energetic members of the critical TAN.67 As
mentioned above, liberal states allied with critical human rights
NGOs to expand NGO participation in the CHR and HRC. When
liberal states are critically examined by NGOs or U.N. human rights
bodies, however, they protect themselves. One respondent observed
that the “most ‘democratic’ governments aren’t always enamored of
what NGOs do. Sometimes those [states] are screaming the loudest
[against NGO information critical of themselves] … When it comes
to [domestic] policy, they’re not perfect.”68
Liberal state action on human rights abuses in allied MENA states
also has clear limits. According to one INGO respondent, the:
UPR’s main purpose is to make blatant abuses visible … [T]his led to an increase in risks
for NGOs from reporting countries—reprisals—and to the point where governments are
not afraid to be seen as indulging in reprisals against NGOs … Bahrain is engaged in
really cruel reprisals against the Shi`ite majority. e royal family is Sunni. It’s related
to Saudi Arabia—and we have information, file reports, go to the U.N., lobby
governments. [A f]ew countries … don’t say anything [in response to our efforts to get
them to address reprisals]. e U.S., UK are bad about this because of oil. [Because]
Saudi Arabia … [has] assets that no one wants to talk about.69
Similarly, critical activists were dismayed by the U.S. and EU refusal
to:
391
confront Egypt concerning [human rights] violations [during Egypt’s transition] within
any U.N. rights meanisms … As a result of this la of political will, large scale rights
violations against protestors and the pro-democracy movement in Egypt has not been
dealt with by any U.N. political body, including the HRC.70
It is thus not surprising that Sisi and other regional dictators have
been emboldened.
Liberal states may cooperate with authoritarian states not just
because of geostrategic considerations, but because of their own
domestic political conflicts. For example, one respondent addressed
Algeria’s strenuous efforts to silence AlKarama (discussed above),
arguing that the U.S. was complicit in Algeria’s actions because it
placed the name of AlKarama’s president on the U.S. Treasury list of
terrorists in response to encouragement by “Arab states close to the
U.S. government.”71 According to this respondent, the U.S. was
motivated by displeasure at AlKarama’s work with (critical domestic
NGO) CODEPINK on publicizing information about U.S. drone
strikes in Yemen.
On the issue of external pressure on states for human rights
compliance, authoritarian states may potentially be more cohesive in
their resistance than liberal ones are in its application. A 2004
study72 of the CHR concluded that “non-democratic regimes voted
as a unified bloc against most resolutions critical of human rights
violations,” while democracies were mu less unified in voting for
su resolutions. If critical TAN influence on authoritarian MENA
states is weakened by liberal states’ unwillingness to apply pressure
for human rights compliance, however, the government-sympathetic
TAN is also weakened by conflicts between MENA states and
GSNGOs’ la of legitimacy.
One respondent notes that “there are conflicts in the region. Some
countries don’t dare [directly initiate] conflict with a neighbor—it’s
like a Cold War—they bring the conflict outside [to the international
level].”73 For example, Qatar and the UAE created GSNGOs to divert
aention from their own domestic human rights abuses and to
392
highlight those of the other state. is respondent says that “both are
based in Geneva … Everyone knows [that they are GONGOs],
including the U.N. system … Because they’re not credible
organizations.”74
Recognizing their la of credibility, and the relative power of
critical NGOs, GSNGOs and MENA authoritarian states oen seek
legitimacy through public association with critical NGOs. One
respondent mentions planning a 2014 HRC side event on Palestine,
whi GSNGOs sought to join and authoritarian states sought to
sponsor, because Palestinian rights “is a noble cause—it’s a way to
tou more of the public, [a way to] clean [themselves], so that they
can clean the image of their organizations.”75 By contrast critical
NGOs, whose continued existence depends on protecting and
maintaining organizational and network legitimacy, assiduously
avoid public association with GSNGOs.
393
Conclusion
Investigating conflict within and between rival TANs can offer
valuable insights into human rights politics at the HRC/UPR. In the
MENA and beyond, human rights norms are not diffusing to
authoritarian states because officials are becoming ‘socialized’ into,
and ‘learn’, these norms—as optimistically predicted by early
constructivists. One means by whi authoritarian states thwart
internal and external pressure for human rights compliance is by
strengthening and expanding a nascent government-sympathetic
TAN. is apter identifies that government-sympathetic TAN, and
explores some of the ways in whi authoritarian MENA states,
GSNGOs, some U.N. officials and other members of that network
actively resist human rights protections and advance an alternative
set of ideas emphasizing state security and sovereignty at the HRC.
Political struggle within and between critical and government-
sympathetic TANs should figure prominently in explanations of
HRC/UPR (in)action on human rights abuses in the MENA and the
durability of authoritarian regimes in the region. Government-
sympathetic TAN efforts, combined with liberal state inconstancy,
threaten past advances in human rights protections aieved and
long protected by the critical TAN. Solars and activists should
aend carefully to the unfolding conflict between rival TANs at the
HRC because of its direct impact on human rights in the MENA.
394
Notes
1 is resear draws from Fall 2014 open-ended exploratory interviews with 30 NGO and
state representatives in Geneva, and information gathered at side events and Working
Group sessions related to the UPRs of Egypt and Iraq. e open-ended interview
questions were: Can you think ‘out loud’ about NGO space and/or GONGOs at the
HRC/UPR? e author interviewed one or more representatives of: the African
Assembly for the Defenses of Human Rights (RADDHO); AlKarama; Amnesty
International; Asian Forum for Human Rights and Development (FORUM-ASIA);
BADIL Resource Center for Palestinian Residency & Refugee Rights; Cairo Institute for
Human Rights Studies; CIVICUS: World Alliance for Citizen Participation; Egyptian
Organization for Human Rights; Franciscans International; Friedri Ebert Stiung;
Frontline Defenders; Geneva for Human Rights; Geneva International Centre for Justice;
Human Rights Wat; International Commission of Jurists; International Federation for
Human Rights (FIDH); International Service for Human Rights; Permanent Missions of
the Netherlands, Sweden and Switzerland; Reporters without Borders; UPR Bran,
Office of the High Commissioner for Human Rights; UPR Info; and Women’s
International League for Peace and Freedom.
2 omas Risse and Kathryn Sikkink, “e Socialization of International Human Rights
Norms into Domestic Practices,” in The Power of Human Rights, eds, omas Risse,
Stephen C. Ropp and Kathryn Sikkink (Cambridge: Cambridge University Press, 1999),
18.
3 Risse and Sikkink, “Socialization,” 21, 18.
4 Risse and Sikkink, “Socialization,” 20.
5 Constructivists are currently grappling with and addressing many of these
shortcomings. See omas Risse, Stephen C. Ropp and Kathryn Sikkink, eds. The
Persistent Power of Human Rights (Cambridge: Cambridge University Press, 2013).
6 Laura K. Landolt, “(Mis)constructing the ird World? Constructivist Analysis of Norm
Diffusion,” Third World Quarterly vol. 25, no. 3 (2004): 579–91; Laura K. Landolt,
395
“Supporting Dictatorship and Promoting Human Rights? U.N. Tenical Assistance to
Egypt,” Journal of Intervention and Statebuilding 6, no. 2 (2012): 145–66.
7 Landolt, “Supporting Dictatorship.”
8 Landolt, “(Mis)constructing?”; Laura K. Landolt, “Externalizing Human Rights: From
Commission to Council, the Universal Periodic Review and Egypt,” Human Rights
Review vol. 14, no. 2 (2013): 107–29.
9 Clifford Bob, The Global Right Wing and the Clash of World Politics (Cambridge:
Cambridge University Press, 2012), 20.
10 Aseem Prakash and Mary Kay Gugerty, eds, Advocacy Organizations and Collective
Action (Cambridge: Cambridge University Press, 2010); Emily B. Rodio and Hans Peter
Smitz, “Beyond Norms and Interests: Understanding the Evolution of Transnational
Human Rights Activism,” The International Journal of Human Rights vol. 14, no. 3
(2010): 442–59.
11 CIVICUS:World Alliance for Citizen Participation, State of Civil Society Report 2014,
accessed July 27, 2015, hp://tinyurl.com/ptany9w, 56.
12 William E. DeMars, NGOs and Transnational Networks (London: Pluto Press, 2005), 50.
13 William E. DeMars and Dennis Dijkzeul, eds, The NGO Challenge for International
Relations Theory (London: Routledge, 2015) 17, 5.
14 Although it is more accurate to describe ‘parts of governments’ rather than unitary
states as TAN partners, I simplify discussion by describing state partners as having
potentially divergent interests in different policy domains (DeMars 2005, 50).
15 Landolt, “Externalizing.”
16 Laura K. Landolt and Byungwon Woo, forthcoming; Landolt, “Externalizing.”
17 Cairo Institute for Human Rights Studies (CIHRS), Bastion of Impunity, Mirage of
Reform: Annual Report 2009 (Cairo: CIHRS, 2010), 28–9; CIHRS, Roots of Unrest:
Annual Report 2010 (Cairo: CIHRS, 2011), 266.
18 Landolt, “Externalizing.”
19 Interview with author, October 2014.
20 Interview with author, November 2014.
396
21 Landolt and Woo, forthcoming.
22 Interview with author, October 2014.
23 Bob, The Global Right Wing, 18.
24 DeMars, NGOs and Transnational Networks, 45.
25 Landolt, “Externalizing.”
26 DeMars, NGOs and Transnational Networks, 45–8.
27 Interview with author, November 2014.
28 Bob, The Global Right Wing, 18.
29 Bob, The Global Right Wing, 29.
30 Interview with author, November 2014.
31 DeMars, NGOs and Transnational Networks, 31.
32 Bob, The Global Right Wing, 24.
33 CIHRS, From Exporting Terrorism to Exporting Repression: Annual Report 2008 (Cairo:
CIHRS, 2009), 28.
34 Interview with author, October 2014.
35 CIVICUS, State of Civil Society Report 2014, 26, 42.
36 International Center for Not-for-Profit Law (ICNL), “Survey of Arab NGO Laws,” Global
Trends in NGO Law 1, no. 4, accessed July 21, 2015,
www.icnl.org/resear/trends/trends1-4.html.
37 CIHRS, Exporting Terrorism, 28.
38 CIHRS, Roots of Unrest, 262.
39 United Nations General Assembly (UNGA), “Rights to Freedom of Peaceful Assembly
and of Association,” September 1, 2014, A/69/365.
40 CIHRS, Exporting Terrorism, 20.
41 CIHRS, Exporting Terrorism, 180–1; Landolt, “Externalizing.”
42 CIHRS, Bastion of Impunity, 265.
397
43 CIHRS, Bastion of Impunity, 215.
44 CIHRS, Bastion of Impunity, 221.
45 Bob, The Global Right Wing, 25.
46 CIHRS, Bastion of Impunity, 222.
47 AlKarama, “ematic Report on Multilateral Organisations and Freedom of Peaceful
Assembly and Association,” July 15, 2014, Photocopied.
48 UNGA, “Rights to Freedom of Peaceful Assembly,” 20.
49 Interview with author, October 2014.
50 Interview with author, October 2014.
51 Interview with author, October 2014.
52 CIHRS, Roots of Unrest, 268.
53 Interview with author, October 2014.
54 UNGA, “Rights to Freedom of Peaceful Assembly,” 16.
55 UNGA, “Rights to Freedom of Peaceful Assembly,” 16.
56 UNGA, “Rights to Freedom of Peaceful Assembly,” 16–17.
57 Interview with author, October 2014.
58 CIHRS, “Egyptian Human Rights Organizations Have Decided Not to Participate in
Egypt’s UPR before the UN,” November 5, 2014, accessed July 20, 2015, www.cihrs.org/?
p=9836&lang=en.
59 e NCHR links government and human rights NGOs and is modeled on OHCHR
recommendations. Critical Egyptian NGOs reject membership as potential cooptation,
while reformists join to foster influence. For Zulficar’s views on state-NGO
collaboration, see Landolt 2007.
60 I identify Abu Seada because he suggested that I do so, to convey his responses to
detractors and because, as he noted in our conversation, he regularly expresses these
views in the media.
61 Interview with author, November 2014.
398
62 Interview with author, November 2014.
63 Interview with author, November 2014.
64 Interview with author, November 2014.
65 e International Republican Institute, the National Democratic Institute and Freedom
House.
66 Kirkpatri, David D., “Egypt Elevates an Official Hostile to U.S.,” New York Times,
November 5, 2014, accessed July 20, 2015, hp://tinyurl.com/ptcdqqu.
67 Landolt, “Externalizing.”
68 Interview with author, October 2014.
69 Interview with author, October 2014.
70 CIHRS, Fractured Walls … New Horizons: Annual Report 2011. (Cairo: CIHRS, 2012), 55.
71 Interview with author, October 2014.
72 Democracy Coalition Project, “Voting at UN Human Rights Body Shows Lile
Improvement,” 2004, accessed July 14, 2012,
www.democracycaucus.net/pdf/dcp_press_release_04.pdf.
73 Interview with author, October 2014.
74 Interview with author, October 2014.
75 Interview with author, October 2014.
399
Selected Bibliography
Bob, Clifford. The Global Right Wing and the Clash of World Politics.
Cambridge: Cambridge University Press, 2012.
Cairo Institute for Human Rights Studies (CIHRS). From Exporting
Terrorism to Exporting Repression; Annual Report 2008. Cairo:
CIHRS, 2009.
Cairo Institute for Human Rights Studies (CIHRS). Bastion of
Impunity, Mirage of Reform: Annual Report 2009. Cairo: CIHRS,
2010.
Cairo Institute for Human Rights Studies (CIHRS). Roots of Unrest:
Annual Report 2010. Cairo: CIHRS, 2011.
Cairo Institute for Human Rights Studies (CIHRS). Fractured Walls
… New Horizons: Annual Report 2011. Cairo: CIHRS, 2012.
CIVICUS: World Alliance for Citizen Participation. State of Civil
Society Report 2014. Accessed July 27, 2015.
hp://tinyurl.com/ptany9w.
DeMars, William E. NGOs and Transnational Networks. London:
Pluto Press, 2005.
DeMars, William E. and Dennis Dijkzeul, eds. The NGO Challenge
for International Relations Theory. London: Routledge, 2015.
International Center for Not-for-Profit Law (ICNL). “Survey of Arab
NGO laws.” Global Trends in NGO Law vol. 1, no. 4. Accessed
July 21, 2015. www.icnl.org/resear/trends/trends1-4.html.
Landolt, Laura K. “(Mis)constructing the ird World? Constructivist
analysis of norm diffusion.” Third World Quarterly vol. 25, no. 3
(2004): 579–91.
Landolt, Laura K.. “USAID, population control, and NGO-led
democratization in Egypt: e fate of the ICPD Programme of
Action.” Democratization vol. 14, no. 4 (2007): 706–22.
400
Landolt, Laura K.. “Supporting dictatorship and promoting human
rights? U.N. tenical assistance to Egypt.” Journal of
Intervention and Statebuilding vol. 6, no. 2 (2012): 145–66.
Landolt, Laura K.. “Externalizing human rights: from commission to
council, the universal periodic review and Egypt.” Human Rights
Review vol. 14, no. 2 (2013): 107–29.
Prakash, Aseem and Mary Kay Gugerty, eds. Advocacy
Organizations and Collective Action. Cambridge: Cambridge
University Press, 2010.
Rodio, Emily B. and Hans Peter Smitz. “Beyond norms and
interests: understanding the evolution of transnational human
rights activism.” The International Journal of Human Rights vol.
14, no. 3 (2010): 442–59.
Risse, omas and Kathryn Sikkink. “e socialization of
international human rights norms into domestic practices.” In
The Power of Human Rights, edited by omas Risse, Stephen C.
Ropp and Kathryn Sikkink, 1–38. Cambridge: Cambridge
University Press, 1999.
Risse, omas, Stephen C. Ropp and Kathryn Sikkink, eds. The
Persistent Power of Human Rights. Cambridge: Cambridge
University Press, 2013.
United Nations General Assembly (UNGA). “Rights to Freedom of
Peaceful Assembly and of Association.” September 1, 2014.
A/69/365.
401
12
Redefining Rights
Organization of Islamic Cooperation
aempts to reshape values in the U.N.
human rights system
Ann Mayer
402
Introduction
e Organization of Islamic Cooperation (OIC), originally known as
the Organization of the Islamic Conference, has worked hard to
reshape aspects of international human rights law, as this review of
some of its stances on freedom of expression will illustrate. It is
striking that it has never managed to articulate one consistent vision,
sometimes conveying the impression that it means to endorse
secular values and at other times according obvious priority to
upholding Islamic law and related values. Following a brief
introductory overview of the OIC’s record, specific aspects of the
OIC’s stances will be considered whi together paint a picture of an
organization motivated more by inconsistent political impulses than
a commitment to either human rights or Islamic values.
Muslim states have both endorsed the U.N. system of human
rights and sporadically also pressed the idea of Islamic particularism,
contending that they are obligated to follow distinctive Islamic
cultural standards for human rights that clash with ones in the U.N.
system, whi they frequently dismiss as ‘Western.’ e OIC has
been similarly ambivalent. Despite having previously professed
support for the U.N. human rights system, the OIC made a public
commitment to upholding Islamic values at the expense of human
rights when it issued the Cairo Declaration on Human Rights in
Islam in 1990. As of that point, the OIC aligned itself with non-
Muslim countries like China that claimed to find international
human rights law culturally objectionable and called for respect for
‘Asian values.’
Far from expressing pure, undiluted Islamic doctrine, the Cairo
Declaration was actually a legal hybrid—a product of ambivalence.
Its provisions on civil and political rights borrowed heavily from
403
aspects of the UDHR but it curtailed the menu of rights and
employed vague, overriding Islamic criteria that effectively
eviscerated the rest. us, for example, expression offensive to Islam
was prohibited. OIC members, many of whose constitutions had
strikingly dissimilar human rights provisions, did not revise their
laws in consequence. is disparity showed that, although both the
OIC and many of its members were disposed to claim that Islam
determined their stances on human rights, they were not in fact
guided by any firm consensus on Islamic doctrine in this area.
Having produced the Cairo Declaration, the OIC did not sti by
the position that Islam clashed with human rights, oen claiming to
support international law. At times it tried to persuade the U.N. that
incorporating Islamic values would serve the cause of human rights.
us, among other things, the OIC called for international law to
adopt a rule prohibiting expression that would be insulting to Islam
or its Prophet. In 1999 the OIC began aggressively promoting the
idea that provisions banning ‘defamation of Islam’ belonged as part
of the U.N. human rights system, meaning that international law
would have to criminalize religious offenses su as blasphemy or
sacrilege. It regularly put forward resolutions in the U.N. in aempts
to aieve this, winning considerable baing but not ultimately
succeeding in rewriting international law to incorporate a ban on
defamation of Islam.
In 2011 in the U.N. the OIC anged ta. With its sponsorship of
U.N. Human Rights Council Resolution 16/18, it began endorsing
U.N. resolutions that called for “combating intolerance, negative
stereotyping and stigmatization of, and discrimination, incitement to
violence and violence against, persons based on religion or belief.”1
Taken at face value, these resolutions seemed to promote the secular
values of the U.N. human rights system, and they aracted
substantial support from non-Muslim states. Faced with skepticism,
OIC officials expressly denied that these resolutions were merely
substitutes for its earlier resolutions on banning defamation of
404
Islam.2 Upon scrutinizing OIC statements, however, one found
indications that the resolutions implicitly had the same aim as the
previous banning of ‘defamation of Islam’ campaign. In the area of
freedom of expression the OIC read these resolutions as laying the
groundwork for an international ban on blasphemous or sacrilegious
expression—that is, expression that offended religious values as
opposed to violating human rights. To justify its stance, the OIC
claimed that it was not Islam per se that it was trying to defend but
the human rights of Islam’s adherents, whi, it maintained, were
being adversely affected by insults to their religion. at is, it argued
that it was reasonable to read Res. 16/18 and its progeny as
comprising a ban on defamation of Islam even though no su
wording was in the resolutions.
e way that the OIC mixes religious and secular categories
invites criticism. One would expect an organization like the OIC that
courts the international spotlight as it promotes its views on human
rights to follow one clear philosophy. Instead, it has accumulated a
record of muddled and incoherent positions. One deduces that the
OIC’s stances have likely been adopted and refashioned in an ad hoc
manner to serve various political ends without mu aention being
paid to whether they are logically consistent.
405
estions regarding the OIC’s assumption of
Islamic authority
e adjective “Islamic” in the OIC’s name could mislead observers
into thinking that the organization claims to have a religious
aracter, as could the fact the OIC frequently presumes to possess
an authority to declare Islamic doctrine. Looking at the OIC’s
original 1974 arter and its significantly revised and updated 2008
arter, the reader finds nothing that could account for this
presumption. Instead, the OIC is conceived of as a conventional
inter-governmental organization that fits in the U.N. system, whi
would place it on a par with other secular entities like the
Organization of American States or the European Union, whi
could not plausibly claim to possess religious authority. e original
1974 arter asserted in its preamble that the OIC was commied to
“the U.N. Charter and fundamental Human Rights, the purposes and
principles of whi provide the basis for fruitful co-operation
amongst all people.” OIC Secretary General Ekmeleddin Ihsanoglu,
who headed the organization 2005–2013 and who took a particular
interest in promoting the OIC’s positions on Islam and human rights,
expressly affirmed in a 2013 interview that OIC was not a religious
institution.3 His successor made a similar affirmation.4 Showing
disregard for its la of qualifications for doing so, the OIC
nonetheless oen speaks as if it were the official custodian of Islamic
orthodoxy.
e OIC’s belief that it could pronounce on religious maers was
demonstrated when it effectively approved Ayatollah Khomeini’s
1989 death edict calling for killing Salman Rushdie to punish him for
his novel The Satanic Verses, whi Khomeini claimed was ‘against
Islam.’ e question as to whether a British citizen of Muslim
406
ancestry in writing a particular work of fiction had blasphemed or
repudiated Islam could only be resolved within the confines of
Islamic jurisprudence. is fact did not deter the OIC from impliedly
endorsing Khomeini’s death edict and speaking as if Islamic criminal
law—not international human rights law—governed expression in
Britain. e OIC proclaimed that Rushdie had commied blasphemy
and that he was classed as an apostate.
In the same vein, aer intervening in the Rushdie case, when the
OIC foreign ministers shortly thereaer issued the 1990 Cairo
Declaration, they effectively assumed that they were entitled to
proclaim that Islamic criteria governed the right to freedom of
expression. e OIC’s endorsement of Islamic censorship, involving
the assumption that expression offensive to Islam should be
prohibited, can be seen in Art. 22 of the Cairo Declaration:
Article 22:
(a) Everyone shall have the right to express his opinion freely in su manner as would
not be contrary to the principles of the Shari`ah …
(c) Information is a vital necessity to society. It may not be exploited or misused in su
a way as may violate sanctities and the dignity of Prophets, undermine moral and
ethical values or disintegrate, corrupt or harm society or weaken its faith.
ese broad religious restrictions on freedom of expression clash
sharply with their secular counterparts in the ICCPR, where Article
19 stipulates only a few secular grounds for restricting freedom of
expression su as ones necessary “for respect of the rights or
reputations of others” or “for the protection of national security or of
public order (ordre public), or of public health or morals.” In
addition, Article 20 provides in subsection 2: “Any advocacy of
national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.” In a
peculiar development, starting in 2011, the OIC would subsequently
speak as if it had moved away from calling for Islamic censorship
407
and strain to convince the U.N. that its views on freedom of
expression coincided with ICCPR principles.
e Cairo Declaration was submied to the U.N., whi should
have condemned and rejected it for curtailing and enfeebling human
rights. Under pressure from the large voting bloc that the OIC could
muster, the U.N. agreed to treat the Cairo Declaration as a legitimate
human rights document, and it was included in the U.N. documents
issuing from the 1993 World Conference on Human Rights in Vienna
that were published by the Office of the U.N. High Commissioner for
Human Rights.5 If one takes this as a sign that the U.N. recognizes
the validity of the Cairo Declaration, one could say that the OIC did
manage to get the U.N. to anowledge its prerogative to reshape
human rights to fit Islamic values. ere is, however, lile indication
that within U.N. corridors the Cairo Declaration in practice enjoys
any real authority.
408
e OIC’s attempts to insert its Islamic
censorship criteria into international law
e Islamic censorship criteria in the Cairo Declaration initially
seemed only to apply to expression in Muslim states. is anged,
however, with the growth of the OIC’s ambitions to insert Islamic
limits on freedom of expression into international law. is effort
correlated with a line in the revised OIC 2008 arter, whi calls on
the OIC “to protect and defend the true image of Islam, to combat
defamation of Islam … ” e OIC sought to make international law
into a vehicle for the extraterritorial extension of Islamic censorship,
envisaging an outcome where the duty to combat defamation of
Islam would become part of international law. If the OIC succeeded,
it would mean that the same expression that would be criminalized
as blasphemous in a country like Iran would likewise be criminalized
in a country like Britain. In consequence, the OIC could claim that
Britain was violating international law if it resisted punishing future
Salman Rushdies.
What was the motivation behind this? Obviously, the OIC shared
its members’ belief in tough censorship, but there was also another
reason. An organization like the OIC whose members were routinely
pilloried by Western governments and by NGOs based in the West
for their egregious human rights violations had reason to want to
retaliate by finding ways to portray Western democracies as being
remiss in their human rights obligations. A review of the OIC’s
behavior substantiates the conclusion that the OIC was looking for a
way to put Western democracies on the defensive. Under the OIC’s
plan, once international law incorporated rules of Islamic censorship,
with whi Western democracies would predictably fail to comply,
they could be aaed for violating international human rights law.
409
In 1999 the OIC began pressuring the U.N. to incorporate into
international human rights law the duty to criminalize what it called
defamation of Islam, proposing many resolutions to this effect but
neglecting to clarify the scope of the crucial term ‘defamation.’
Reviewing the OIC’s actual usage of the term, one gets the
impression that for the most part it corresponds to religiously-based
concepts like blasphemy or sacrilege. It can, however, have a broader
rea.
On its face, this English legal term seems inapposite, because in
common law defamation claims can be brought by natural persons,
not juristic persons. Moreover, claims and cannot be brought on
behalf of dead persons, su as a long deceased prophet. at
defamation was osen could be explained by the fact that the OIC
worried about employing terms like blasphemy or sacrilege that
were too obviously linked to specific religious categories. e OIC
was hoping in this period to win U.N. approval for its aempt to
insert Islamic censorship criteria into international law, whi made
it prefer a term that was not directly tied to religion. e term
defamation already figured in some secular international human
rights instruments, as in concepts like group defamation and
defamation as a violation of the human right to reputation. us, by
using defamation rather than blasphemy, the OIC could maintain a
pretense of staying within the confines of secular international law.
Because the OIC sought to portray itself as operating within the
confines of international human rights law at the same time that it
was ampioning Islamic censorship, the various resolutions on
combating defamation of Islam are studded with references to
human rights principles. e 2007 Human Rights Council Resolution
4/9 Combating defamation of religions could be offered as an
example.6 Far from highlighting its aims to impose Islamic
censorship, the resolution repeatedly seeks to portray its goal as
upholding human rights and prohibiting defamation of all religions,
portraying this as a problem that is causing human rights violations
410
and as “an aggravating factor that contributes to the denial of
fundamental rights and freedoms of target groups, as well as their
economic and social exclusion.”(Art. 4).
e resolution seeks to portray the call for punishing defamation
of Islam as being compatible with ICCPR provisions on freedom of
expression. To do this Art. 7 of the resolution cites ICCPR Article
20/2—but only with a major modification to the original, whi
provides: “Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall
be prohibited by law.” Significantly, the resolution adds new wording
that calls for prohibiting “material aimed at any religion or its
followers.” is added phrase widens the grounds for censorship far
beyond the limits originally contemplated, showing how the OIC
seeks to reshape human rights law by adding principles prioritizing
Islamic concerns. e resolution in Art.10 also adds wording
permiing curbs on freedom of expression necessary for “respect for
religions and beliefs” and expands the potential grounds for
censorship by banning expression “aimed at any religion,” a principle
that is so vague that it would allow far reaing censorship. As
critics have noted, the U.N. human rights system aims to protect
human beings, not institutions like religion, so this proposed
alteration is of great magnitude. e range of spee that might be
classed as not showing respect for religions is potentially expandable
to the point where freedom of expression could be nullified—a result
that many OIC member states, whi are wedded to draconian
censorship policies, would be disposed to welcome.
e OIC resolutions were vigorously denounced by NGOs
commied to upholding international human rights law as well as
by states that take human rights law seriously.7 A central objection
was that demands to curb the right to freedom of expression by
imposing religious censorship embody a philosophy directly at odds
with the ICCPR, whi, as noted, specifies only a few secular
conditions that may be invoked to restrict freedom of expression.
411
e OIC response to the Danish cartoons
e Danish Cartoons case aptly illustrates how the OIC seeks to
portray Western democracies as being seriously deficient in their
human rights performance and also how it confuses purely religious
offenses like insults to Islam with secular offenses like hate spee
that are classed as human rights violations under international law.
Cartoon depictions of the Prophet Muhammad were published in
September 2005 in Jyllands-Posten, a Danish-language newspaper
with a small circulation. e cartoon that was later singled out as
most offensive was a drawing by Kurt Westergaard of the head of
the Prophet with a bomb poking out of his bla turban. e
announced objective of the newspaper in publishing the cartoons
was to assert the principle of freedom of expression in the face of
mounting pressures for the self-censorship that some were arguing
was needed to avoid offending Muslims. e paper indicated that it
wanted to break with the political correctness that did not allow
treating Muslims like any other religious group.8 Of course, because
there were right wing political movements in Europe that pandered
to growing anti-immigrant sentiment, many viewed the cartoons as
being connected to xenophobia and, more specifically, to
Islamophobic trends.
Professing outrage, the OIC undertook to mobilize worldwide
Muslim opinion against the cartoons.9 When its demands for
censorship and punishing the cartoonists were rejected by the
Danish government, OIC Secretary General Ihsanoglu protested,
revealing the kind of harsh censorship regime that he wanted Europe
to implement. He complained of European baing for Denmark’s
failure to prosecute Jyllands-Posten, condemning the decision by
Danish courts to dismiss a defamation lawsuit brought by Muslims
412
who tried to sue Jyllands-Posten and scoffing at the Danish
government’s explanation that Danish laws guarantee the freedom
of the press.10
Significantly, the OIC asserted that the Danish government was
violating international human rights law when it failed to censor the
cartoons and to punish those involved in their publication. at is,
even though its campaign to have international law formally adopt a
principle criminalizing defamation of Islam had not succeeded, the
OIC spoke as though the past support of many states for its U.N.
resolutions had signaled an international endorsement of bans on
insulting Islam and the Prophet. In January 2006, the OIC espoused
the cause of the Muslims condemning the Danish cartoons at the
U.N. and asked the U.N. for a binding resolution “banning contempt
for religious beliefs and providing for sanctions to be imposed on
contravening countries or institutions.”11 Again one had a clear
indication of how dramatically the OIC’s preoccupation with
sacrilege reflected values that differed from those in international
law, a secular law that does not ban people from expressing
contempt for religious beliefs or require states to impose criminal
penalties on people who express su aitudes.
e OIC’s criticisms of Denmark demonstrated its inability to use
defamation of religion consistently; not for the first nor for the last
time, it used the term as if it covered both religious offenses and
human rights violations—and as if the two were interangeable. e
OIC’s merger of religious and secular offenses was exemplified in
how Ihsanoglu spoke in a June 2013 interview with al Jazeera, where
he complained about the cartoons on the grounds that they insulted
a prophet who was venerated by Muslims.12 Of course, this would
mean that the cartoonists’ offense was like blasphemy or sacrilege,
the parameters of whi can only be determined within a given
religious tradition. In saying this, Ihsanoglu seemed to have lost
tra of the fact that the OIC’s position was that the duty to ban
defamation of Islam should be accepted as a secular human rights
413
principle. In the same interview, Ihsanoglu also spoke as if his
objections to allowing the cartoons to be published were grounded
in international human rights law—whi suggested that he believed
that international law embraced the principle set forth Cairo
Declaration in Article 22/c, whi bars expression that “may violate
sanctities and the dignity of Prophets.”13
Showing how amorphous his concept of defamation of Islam was,
in an interview with Jyllands-Posten in October 2008 he had
previously spoken as if his objections to the cartoons were not at all
religiously based but concerned instead a violation of the ICCPR ban
on hate spee. In this 2008 interview, he lectured Denmark, a
country with a particularly fine human rights record, about its
supposed human rights deficiencies and positioned the OIC as the
defender of human rights. Ihsanoglu struggled to associate insults to
Islam and blasphemy with secular hate spee, insisting on a causal
link between hate spee, by whi he meant the cartoonists’
offensive depiction of the Prophet, and aas on Muslims and
discriminatory treatment that Muslims suffered in the West.
Heedless of the sharp self-contradictions that this entailed, Ihsanoglu
disingenuously protested that curbing freedom of expression or
criticisms of religions was not at all the OIC’s objective. Instead, he
maintained that its concern was deterring spee that was
intentionally sowing hatred against a group of people and causing
harm to them:
I am quite surprised to see in the Danish press insinuations that I or the OIC are
opponents of freedom of expression who are endeavoring to stifle this freedom by
calling for banning of criticism of religions. Everybody is entitled to criticize anybody
or anything … We have no problem whatsoever with this. However, when freedom of
expression is abused to ridicule and demonize with the intention to sow seeds of hatred
against a group of peoples or citizens, then problems start because the rights of the
victims of this incitement comes to the fore.14
As a critical observer would note, if the OIC’s concern were actually
preventing the harms that hate spee caused to targeted groups, the
414
OIC’s repeated efforts to win U.N. support for its resolutions on the
duty to combat defamation of Islam would not have made any sense.
e resolutions would have been totally superfluous, because hate
spee had already been prohibited under ICCPR Art. 20/2 since
1966. It therefore strained credulity to have the OIC protesting that it
was not seeking to impose religious censorship but was merely
aiming to aieve the same objectives as those already served by the
secular principles set forth in ICCPR Art. 20/2, whi had been in
force for decades.
How in OIC parlance the crucial distinctions between religious
and secular categories were collapsed was also shown in Ihsanoglu’s
2006 lecture in Moscow.15 According to the transcript of the lecture,
he complained that the Danish Cartoons were “blasphemous
cartoons whi offended the image of the Prophet of Islam.” at is,
under Islamic law they constituted criminal acts, a conclusion that
could only be reaed by reference to Islamic doctrine. But he also
tried to squeeze them into the category of ICCPR Art. 20/2 hate
spee, claiming that they “depicted him in a way to arouse hatred
to Islam and Muslims,” claiming without any evidence that the
cartoonists’ intended objective was “inciting hatred against Muslim
population in Denmark and elsewhere and exposing them to
prejudice and threats.” at is, aer employing a religious category,
“blasphemy,” to indicate why the cartoonists’ drawings were
objectionable, he offered the unsupported conclusion that in drawing
the Prophet the cartoonists were intentionally engaged in expressing
“advocacy of national, racial or religious hatred” that would be
prohibited under the secular rules of the ICCPR. e goal was
obviously to persuade the audience that insults to Islam should be
equated with hate spee with the corollary that Islamic censorship
should be imposed in the interests of protecting human rights.
Contributing to the confusion about what it thinks are grounds for
censorship, the OIC oen swites terms, using defamation of Islam
and Islamophobia interangeably. Like ‘defamation,’ in the OIC’s
415
parlance ‘Islamophobia’ is an offense that the OIC uses in more than
one sense. e incoherence that aracterizes the OIC’s discussions
of human rights was embodied in Ihsanoglu’s stumbling aempt to
define Islamophobia when asked about it in 2013 by an interviewer
in an al-Jazeera program. His muddled comments proved that, even
though he had regularly denounced Islamophobia, he had no secure
grasp of its definitional parameters. Ihsanoglu initially seemed at sea
when the interviewer asked him what Islamophobia consisted of,
flailing about for a bit before tossing out various ideas about what it
would cover. Some were purely offenses against religion like
desecrating tombstones, defaming religion, and writing a book
insulting the Prophet. is last was most likely a reference to
Rushdie’s The Satanic Verses, whi the OIC had once condemned
as constituting blasphemy, that is, on religious grounds.
Significantly, as of 2013 it seemed that the OIC preferred to reclassify
Rushdie’s offence as being Islamophobia, a term that it had not
originally used. Because by 2013 the OIC was making efforts to
prove that its concerns fit in mainstream secular categories, it had
every reason to present its objections to Rushdie’s novel as being
based on its abhorrence of Islamophobia, a rubric that, as applied to
Rushdie, involved gross distortions. Rushdie’s autobiography shows
his long engagement with Islamic history, dating ba to his studies
at Cambridge, as well as his affinity for Islamic culture and its
distinguished thinkers like the rationalist philosopher Ibn Rushd,
from whom his father took the family name.16 It also describes his
bafflement and horror at being suddenly demonized as an enemy of
Islam based on egregious misrepresentations of the story actually
told in his novel.
In aempts to nail down the concept of Islamophobia in the same
interview, Ihsanoglu mentioned other secular offenses like politicians
using xenophobic rhetoric (presumably directed at Muslims) and
discrimination against immigrants (presumably against Muslims) in
the name of social and economic concerns.17 at is, he continued to
416
mix up offenses like blasphemy or sacrilege and the secular offense
of hate spee that leads to bad treatment of immigrants. From his
confused perspective, both types of offenses could be classed as
Islamophobia, whi again revealed a disinclination to recognize the
significant differences separating religious crimes from secular
human rights violations.
417
e OIC’s preoccupation with insults to
Islam in the West
Aer failing in its aempts in the U.N. to have defamation of Islam
formally prohibited under international law, the OIC decided to
ange tactics. As of 2011 the OIC elected to pose as being
supportive of the ICCPR, sponsoring the U.N. Human Rights Council
Resolution 16/18, the first of a series of resolutions baed by the
OIC on combating intolerance, negative stereotyping and
stigmatization of, and discrimination, incitement to violence and
violence against, persons based on religion or belief. e OIC’s
ange from advocating Islamic particularism to professing support
for the ICCPR was only superficial, however. Instead of actually
embracing secular human rights principles, the OIC continued to
show a determination to see the West condemned for failing to curb
defamation of Islam. In this connection, it sought to define the
principles in Res. 16/18 as endorsing the duty to combat defamation
of Islam, a problem that the OIC insisted was causing grievous
harms to Muslims in the West. In this connection the OIC made
many complaints about the West’s wrongful failure to clamp down
on Islamophobia, Islamophobia being so loosely defined that it
comprised blasphemy and sacrilege. e OIC acted as if purely
religious offenses should be seen as violating Res. 16/18—even
though the actual wording of the resolution gave no grounds for
doing so. Again, lurking behind the OIC’s ostensible move to
endorse secular principles was a continued commitment to imposing
Islamic censorship.
In this connection, the OIC faced a problem in dealing with real
world evidence, whi showed that its complaints about the harms
caused to Muslims by Islamophobia that was allegedly centered in
418
the West were grotesquely unbalanced. Muslims were suffering from
far more egregious human rights violations in the OIC’s allies China
and Russia, where expressions of Islamophobia were condoned and
where Muslims were harshly persecuted on religious grounds,
without provoking vigorous denunciations by the OIC. Moreover,
within OIC member states the kind of hate spee prohibited under
ICCPR Art. 20/2 and condemned by Res. 16/18 was commonplace.
Religious invective, oen abeed by governments, was exacerbating
sectarian antagonisms and socio-religious tensions to the point that
mu of the region from North Africa to Bangladesh was wraed
by religiously-based turmoil that regularly exploded into violent
aas and lethal conflicts. It was particularly telling that the OIC
did not make a commitment to denounce and combat the vitriolic
aas targeting Muslims launed by other Muslims that were
proliferating in Muslim countries—frequently with the acquiescence
if not with the approval of the local regimes. One has only to
consider the clashes and killings involving antagonistic Islamic sects
during bier sectarian conflicts on the territories of OIC members
su as Afghanistan, Bahrain, Egypt, Iraq, Kuwait, Lebanon, Libya,
Nigeria, Pakistan, Saudi Arabia, Syria, and Yemen to be reminded of
how extensive religiously-motivated violence has been inside the
OIC. Aer traing religious restrictions and religious hostilities
around the world since 2007, the Pew Resear Center reported in
2014 that the level of social hostilities involving religion was
increasing, with the Middle East and North Africa being the region
most afflicted by sectarian violence, showing the sharpest rise in
incidents in 2012. In contrast, su hostilities had not increased in
the Americas.18
Given its posturing as a supporter of the goals of Res. 16/18 in a
period when Muslims within OIC member states were being
subjected to vilification, discrimination, persecution, abductions,
murderous assaults, and terrorist bombings by other Muslims on the
basis of their religious affiliations and beliefs, the OIC should
419
logically have placed these acute problems in the spotlight. When
the OIC instead pretended that it was in Western democracies that
Muslims were suffering particularly badly from religious intolerance,
it sacrificed its credibility.
Having repeatedly made arguments in the U.N. to the effect that
defamation of Islam in the West harmed Muslims, the OIC had a
particular reason to try to divert aention away from the destructive
religious violence inside OIC countries where Islamic censorship is
rigid and where blasphemy and sacrilege are criminalized. is
reality undermines the causation theory that the OIC proposals at
the U.N. have relied on. According to this theory, imposing Islamic
censorship and criminalizing defamation of Islam are essential
prerequisites for protecting Muslims’ human rights. e OIC
apparently cannot find a way to reconcile this theory with the on the
ground reality that precisely the kinds of human rights violations
that Res. 16/18 condemns plague Muslims living in OIC countries
where any insults to Islam are severely punished with penalties that
may even include execution.
Ostensibly, the OIC’s aas on Western Islamophobia and related
evils like Western toleration of defamation of Islam are aimed at
protecting Islam and Muslims, but the real purpose, placing the West
on the defensive, and the OIC’s political biases were displayed in
remarks made by Ihsanoglu at a Geneva meeting on the
implementation of Res. 16/18 in June 2013. He asserted: “Combating
discrimination and intolerance forms a most daunting allenge of
our times. It constitutes a maer of vital concern at the OIC.”19 In
reality the OIC’s record suggested a preference to downplay that
“daunting allenge” in cases where discrimination and religious
intolerance harmed millions of people living in OIC member states—
or in states allied with the OIC like China and Russia. us,
Ihsanoglu continued to complain about relatively minor or
peripheral incidents in the West, including ones that he placed under
the label of Islamophobia but that were actually more redolent of
420
sacrilege. His blinkered perspective was mu in evidence in his
complaints about Islamophobia in the Geneva meeting, a meeting
that was supposed to focus on Res. 16/18:
e increasing trend of Islamophobia is indeed ominous in a globalized world. ere
has been an alarming increase in intolerance and discrimination against Muslims. It
must be appreciated that there is mounting public pressure on OIC Member States to
take concrete action. Alarming increase in Islamophobic incidents like the Utoya
massacre in Norway, the burning of ran by the Florida Pastor [meaning Terry Jones]
and release the reprehensible trailer [meaning Innocence of Muslims] on You tube
continue to hurt the religious sentiments of over 1.5 billion Muslims.[sic]20
It is noteworthy that when purporting to discuss the secular civil
and political rights central to Res.16/18, Ihsanoglu ignored the dire
conditions plaguing Muslims living in OIC member states in 2013.
Instead, he spoke as if the outstanding problems facing Muslims in
the area covered by Res. 16/18 lay in two U.S. incidents and a highly
unusual mass murder in Norway, whi did tie in with Islamophobic
trends in the West but the practical impact of whi on Muslims was
trivial in comparison to the contemporaneous sufferings of Muslims
afflicted by human rights violations in OIC member states. In the
U.S. cases Islam’s Scripture and Prophet had been insulted by the
acts of obscure, hate-fueled individuals, and in Norway Anders
Breivik, an isolated and deeply disturbed misfit who imagined that
he was a commander of the revived order of the Knights Templar,
had killed eight Norwegians by detonating a bomb in Oslo and then
had slaughtered seventy seven Norwegians on Utoya Island.
It was true that all three perpetrators had Islamophobic aitudes,
but singling out their acts for special condemnation made no sense
in this context, where logically the focus should have been on
problems of far greater magnitude that were having devastating
consequences for Muslims. Not only did the OIC grotesquely
exaggerate the significance of these incidents, but citing the Anders
Breivik case was particularly inapposite—unless the sole aim was to
find a pretext to aa Norway, a democracy with a stellar human
421
rights record. As in other cases where it reflexively aributed
Islamophobic motives to Westerners whom it singled out for
condemnation, in citing Breivik’s actions to illustrate the nefarious
impact of Islamophobia, the OIC failed to investigate the facts. e
West is beset by hardcore Islamophobes like Pamela Geller and Gert
Wilders, but they differ from deluded persons like Breivik. Breivik
had concocted an eccentric and tangled ideology. e dangerous
forces against whi he imagined himself leading an heroic crusade
included feminism, multiculturalism, and Marxism—with his fury at
feminists being particularly powerful. A detailed study of Breivik’s
life indicates that, having become embiered by his failures with
women, he imagined that feminism was emasculating Norwegian
men. He harbored fierce hatred for former Prime Minister Gro
Harlem Brundtland, an outspoken feminist. Inspired by videos of al-
Qaeda beheadings, he had intended to capture, humiliate, and
behead her when he went to Utoya.21 With his twisted mentality, he
was far from being a poster boy for Islamophobia, whi was only
one of the phobias beseing him.
No entity with any genuine concern for realizing the aims of Res.
16/18 and protecting Muslims’ human rights would have highlighted
these three cases as deserving aention at a time when millions of
Muslims were acutely suffering from the kinds of abuses that Res.
16/18 condemned. at the OIC, being determined to put Western
democracies on the wrong foot, ose to portray the United States
and Norway as standing out in terms of violating the principles in
Res. 16/18 was a sign of its distorted priorities and bias. Moreover,
singling out two U.S. incidents where sacrilege was the offense and
the precepts of Cairo Declaration Art. 22/c were violated
demonstrated the OIC’s ongoing preoccupation with insults to Islam.
In sum, the comments discredited the OIC’s claims to be commied
to the principles in Res. 16/18.
422
Conclusion
e OIC has tried repeatedly to insert rules into international human
rights law that will have the effect of superimposing Islamic values
on human rights principles. It has not, however, articulated
consistent positions on the relationship of Islamic law to
international human rights law. e OIC’s contradictory positions
are exemplified in its clinging to the 1990 Cairo Declaration on
Human Rights in Islam, whi inserts vague Islamic qualifications to
eviscerate civil and political rights, while proposing measures and
making many public statements that are designed to convey the
impression that it has moved beyond the declaration. Although some
may imagine that the Cairo Declaration is passe, the current
Secretary General Iyad Ameen Madani in 2014 endorsed it as “the
OIC’s most complete statement on human rights in Islam,”
complaining that “current international human rights laws are based
on Western values.”22
Despite clinging to the Cairo Declaration, where issues of freedom
of expression are concerned, the OIC wants the international
community to accept that, based on measures like its formal baing
for Res. 16/18 and pretenses of support for related ICCPR principles,
it has abandoned its campaign for Islamic censorship and is instead
pursuing the goal of protecting Muslims from harmful hate spee.
e record reveals, however, that, to the extent that the OIC
endorses the ICCPR, it is only because it reads Cairo Declaration
principles that restrict freedom of expression into that covenant,
where they patently do not fit.
As the foregoing discussion indicates, the OIC has shown a blithe
disregard for the gap separating religious offenses like insults to
Islamic sanctities and offenses that constitute violations of
423
international human rights law. Demonstrating palpable political
biases, the OIC has failed to articulate logical and plausible lines on
how Islamic values should figure in human rights or even to use its
own terminology in a consistent fashion. It has le a record that is
so confused that observers, if asked to pinpoint the OIC’s exact
position on human rights, would encounter great difficulty in doing
so. e OIC wants to make out a persuasive case that incorporating
Islamic values will enhance human rights, but the disarray in its
policies stands in the way.
424
Notes
1 Since 2011 numerous resolutions on this topic have been passed in the Human Rights
Council and the General Assembly. For the first in the series see Resolution adopted by
the Human Rights Council 16/18 Combating intolerance, negative stereotyping and
stigmatization of, and discrimination, incitement to violence and violence against,
persons based on religion or belief, accessed July 17, 2015,
www2.ohr.org/english/bodies/hrcouncil/docs/16session/A.HRC.RES.16.18_en.pdf.
2 See “OIC commends resolution on religious discrimination,” Arab News, Mar 26, 2011,
accessed July 17, 2015, hp://arabnews.com/middleeast/article330915.ece
3 Al Jazeera, “Ekmeleddin Ihsanoglu: Combating Islamophobia. e Secretary General of
the OIC discusses discrimination, freedom of expression and religious persecution in the
West,” Talk to Al Jazeera, June 1, 2013, accessed July 17, 2015, www.youtube.com/wat?
v=fv0DarFDgHY.
4 See Habib Shaikh, “OIC seeks rights debates based on Islamic values,” Arab News,
February 4, 2014, accessed July 17, 2015, hp://oiumanrights.wordpress.com/.
5 See Office of the High Commissioner for Human Rights, Human Rights: A Compilation
of International Instruments: Volume II: Regional Instruments (Geneva: OHCHR, 1997),
475–476.
6 Human Rights Council. Resolution 4/9. Combating defamation of religions, Mar 27,
2007, accessed July 17, 2015, hp://ap.ohr.org/documents/E/HRC/resolutions/A-HRC-
RES-4-9.doc.
7 See e.g. e U.N. Special Rapporteur on Freedom of Opinion and Expression et al,
“International Meanisms for Promoting Freedom of Expression. Joint Declaration on
Defamation of Religions, and Anti-Terrorism and Anti-Extremism Legislation,”
December 9, 2008, accessed July 17, 2015, www.osce.org/fom/35639?download=true
Article 19, “ARTICLE 19 and e Cairo Institute for Human Rights Studies (CIHRS)
Joint Wrien Statement submied by ARTICLE 19, a non-governmental organisation
425
on the Roster, and the Cairo Institute for Human Rights Studies (CIHRS), a non-
governmental organisation in special consultative status,” September 11, 2008, accessed
July 17, 2015, www.article19.org/pdfs/press/un-resolutions-on-combating-defamation-
of-religions.pdf, Women Living Under Muslim Laws, “Women Living Under Muslim
Laws Demands the U.N. Resolution on Combating Defamation of Religions be revoked,”
April 7, 2009, accessed July 17, 2015, www.cwgl.rutgers.edu/docman/cwgl-news/308-04-
07-09-wluml/file.
8 Jye Klausen, The Cartoons That Shook the World (New Haven: Yale University Press,
2009), 15.
9 See ibid, 39.
10 Organization of Islamic Cooperation, “Statement of Secretary General at the first
International Conference Organized by (OIC) under the eme: ‘Challenging
Stereotypes in Europe and the Islamic World,’” February 5, 2006, accessed July 19, 2015,
www.oic-oci.org/oicv2/topic/?t_id=2318&ref=1020&lan=en.
11 P.K. Abdul Ghafour and Abdul Hannan Faisal Tago, “OIC, Arab League seek U.N.
resolution on cartoons,” Arab News, January 30, 2006, accessed July 17, 2015,
www.arabnews.com/?page=1§ion=0&article=77052&d=30&m=1&y=2006.
12 See “Ekmeleddin Ihsanoglu: Combating Islamophobia.”
13 Ibid.
14 Organization of Islamic Cooperation, “e Full text of the interview of the Secretary
General with the Danish Daily Jyllands Posten, published on October 28, 2008,” accessed
July 17, 2015, www.oic-oci.org/english/article/Jyllands%20Posten%20Interview.pdf.
15 See LITTEREF.RU, Lecture of His Excellency Prof. Ekmeleddin Ihsanoglu, Secretary
General of e Organization of e Islamic Conference, at e Mgimo University,
Moscow, on Islam and Dialogue Among Civilizations, June 8, 2006, accessed July 17,
2015, hp://lierref.ru/yfspolujgyfsrnabew.html.
16 See Salman Rushdie, Joseph Anton (New York: Random House, 2013).
17 See “Ekmeleddin Ihsanoglu: Combating Islamophobia.”
18 Pew Resear, “Religious hostilities rea six-year high,” January 14, 2014, accessed July
17, 2015, www.pewresear.org/fact-tank/2014/01/17/key-findings-about-growing-
426
religious-hostilities-around-the-world/.
19 Organization of Islamic Cooperation, “Statement by His Excellency the Secretary
General at the 3rd Istanbul Process Meeting on the follow-up of Implementation of HRC
Resolution 16/18,” accessed July 17, 2015,
hps://oiumanrights.wordpress.com/tag/tolerance/.
20 Ibid.
21 See Asne Seierstad One of Us: The Story of Anders Breivik and the Massacre in Norway,
trans. Sarah Death (New York: Farrar, Straus and Giroux, 2015).
22 Habib Shaikh, “OIC seeks rights debates based on Islamic values,” Arab News, February
4, 2014, accessed July 17, 2015, hp://oiumanrights.wordpress.com/.
427
Selected Bibliography
Article 19. “ARTICLE 19 and e Cairo Institute for Human Rights
Studies (CIHRS). Joint Wrien Statement submied by ARTICLE
19, a non-governmental organisation on the Roster, and the Cairo
Institute for Human Rights Studies (CIHRS), a non-governmental
organisation in special consultative status,” September 11, 2008
www.article19.org/pdfs/press/un-resolutions-on-combating-
defamation-of-religions.pdf (accessed July 17, 2015).
Human Rights Council. “Resolution 4/9. Combating defamation of
religions,” Mar 27, 2007
hp://ap.ohr.org/documents/E/HRC/resolutions/A-HRC-RES-
4-9.doc (accessed July 17, 2015).
Human Rights Council. “Resolution adopted by the Human Rights
Council. 16/18 Combating intolerance, negative stereotyping and
stigmatization of, and discrimination, incitement to violence and
violence against, persons based on religion or belief,” April 12,
2011
www2.ohr.org/english/bodies/hrcouncil/docs/16session/A.HR
C.RES.16.18_en.pdf (accessed June 29, 2015).
Klausen, Jye. The Cartoons That Shook the World. New Haven: Yale
University Press, 2009.
Organization of Islamic Cooperation. “Statement by His Excellency
the Secretary General at the 3rd Istanbul Process Meeting on the
follow-up of Implementation of HRC Resolution 16/18,” June 20,
2013 hps://oiumanrights.wordpress.com/tag/tolerance/
(accessed July 17, 2015).
Pew Resear. “Religious hostilities rea six-year high,” January 14,
2014 www.pewresear.org/fact-tank/2014/01/17/key-findings-
428
about-growing-religious-hostilities-around-the-world/ (accessed
July 17, 2015).
Rushdie, Salman. Joseph Anton. New York: Random House, 2015.
Seierstad, Asne. One of Us: The Story of Anders Breivik and the
Massacre in Norway. Translated by Sarah Death. New York:
Farrar, Straus and Giroux, 2015.
e U.N. Special Rapporteur on Freedom of Opinion and Expression,
the OSCE Representative on Freedom of the Media, the OAS
Special Rapporteur on Freedom of Expression and the ACHPR
(African Commission on Human and Peoples’ Rights) Special
Rapporteur on Freedom of Expression and Access to
Information. “International meanisms for promoting freedom
of expression. Joint declaration on defamation of religions, and
anti-terrorism and anti-extremism legislation,” December 9, 2008
www.osce.org/fom/35639?download=true (accessed July 17,
2015).
Women Living Under Muslim Laws. “Women Living Under Muslim
Laws demands the U.N. resolution on combating defamation of
religions be revoked,” April 7, 2009
www.cwgl.rutgers.edu/docman/cwgl-news/308-04-07-09-
wluml/file (accessed July 17, 2015).
429
13
Human Rights, Youth, and
Tenology
Agents of ange?
Mahmood Monshipouri
430
Introduction
In the pre-digital era, the expression of dissent took the form of
spreading anonymous pamphlets and sharing of information and
banned books, meeting underground, or even organizing
associations outside the country. Speaking on the phone and
communicating through mail or formal media in order to express
anti-regime sentiments, mobilize anti-government opposition, or
simply criticize the government more generally, were activities
considered far too dangerous. e presence of retaliatory constraints
on protest in authoritarian regimes was intensified by the absence of
information. e rise of networked communication, along with
growing numbers of educated individuals, generated a massive
internal implosion in the wake of a spontaneous trigger.1 Yet the
collapse of the Soviet Union in 1989 and the ensuing uprisings in
Eastern and Central European satellite states in the 1990s occurred
under su circumstances and there is no denying the fact that
young people were the most common advocates of ange in street
politics throughout the region.
Economic hardship and state repression caused a new wave of
revolutionary movements that plunged the region into tumultuous
ange. Nowhere was this shi more blatantly obvious than in
Egypt, where a combination of economic and political factors proved
critical in further consolidating opposition to the Mubarak regime.
e emergence of Kefaya movement (2004), whi brought together
an amalgam of political proclivities ranging from nationalist to
communist to Islamist, led to a united front around demands for
electoral reform. Defining itself as a loose movement, the Kefaya
movement used social media to organize demonstrations and
worked in tandem with working class (su as textile workers in
431
Mohalla al-Kubra) to broaden the movement’s base and to ensure
inclusiveness. Although Kefaya movement lost its luster years before
the uprising, one of the founders of the April 6 Movement, whi
played a key role in organizing the January 2011 protests, came from
Kefaya’s youth movement.2
Two other important factors—endemic corruption and ethnic
identity—proved crucial to creating solidarity among protesters.
Under Mubarak, corruption and embezzlement of public funds
became rampant, as the privatization programs were boosted to the
detriment of the shrinking public sector. e resulting degradation of
the Egyptian economy in the 2000s, along with the removal of
subsidies, hurt the nation’s large working classes—a development
that could very well explain the emergence of Kefaya-textile workers
alliance and the significant role it played in undermining the
Mubarak rule. Arguably, ethnic identity—an important element of
the Arab uprisings—came to serve as the driving organizing
principle in mu of Arab politics. Most notably, however, an
extraordinary spirit of youth solidarity transcended regional and
ethnic divides, and soon brought in the older generation, families,
and others far beyond the traditional opposition.3
With the rise of cyber-activism in the 2000s, a new form of civic
and political engagement for the youth of su regimes flourished.4
Empowered by modern communication tenologies, connected to
the globe through new social networks, and equipped with the
opportunity to exercise their imaginations, young people throughout
the world have risen in opposition in the face of constant threat of
instability, economic turmoil, and a mu less receptive political
environment. Aer growing up learning that they could trust no
one, social media have made it possible for them to come together in
a meaningful ways.5 Increasingly, young people have converted their
discouragement and rage into an enormous reservoir of social and
political activism by becoming agents of ange both in symbolic
and substantive ways.6 While modern tenologies are morally
432
neutral—that is, they can either sustain the status quo or alter the
rules of the game—they have given the youth movement an
unprecedented momentum to enter into the political arena, seek new
economic opportunities, and redefine new norms of accountability.
Guarding against cyber-optimism, many observers concede that
even in countries where access to social media is relatively high,
cyber-activism alone evidently cannot fully account for mass
mobilizations of dissent. Building grassroots support to sustain
significant uprisings hinges upon establishing linkages within local
communities and domestic social networks.7 Without su local
connectivity and interactivity, new tenologies are unlikely to
conjure up any practical results. But as access to mobile and modern
tenology has increased, cyber movements and other forms of
online activism have risen in importance, creating new possibilities
and allenges that need to be taken seriously. It is within these
dynamic, shiing, and new contexts that youth movements across
the globe have drawn media and popular aention.
At the same time, tenologically led movements have their own
limits, as experts remind us, in part because they do not necessarily
translate into enduring movements or robust political parties or
platforms capable of posing a formidable allenge to entrened
authoritarian regimes. e Internet-driven youth movements against
the Mubarak regime in Egypt lost badly in the ensuing
parliamentary elections to the far more organized and broadly based
Islamist movements. e members of Egypt’s Muslim Brotherhood,
for example, were skilled at taking advantage of electoral gaps, as
their social welfare programs were arguably the method by whi
they manifested electoral successes.
It is worth noting that these same tenological tools have equally
strengthened the surveillance and coercive capabilities of the
authoritarian state now in power in Egypt.8 Hence the assumption
that these newly empowered and informed citizens will be unlikely
to surrender to a dictatorship remains as yet untested.9 is apter
433
examines the relationship between demographic trends and revolt,
and the spread of tenology and democratization with a view
toward demonstrating the possibilities and limits to human rights-
related youth movements as agents of ange in the Middle East and
North Africa (MENA).
434
Tenology upends traditional politics
In a shrinking world, with new modes of communications available,
ideas transcend borders and are carried over the airwaves or in the
universe of the virtual world, where many minds come together and
interact. In response to lingering economic and sociopolitical
problems, an intriguing trend in the contemporary Muslim world
has emerged in whi the increasing interplay between human
rights and Islamic discourses has become an inescapable part of the
region’s political dynamic. In Egypt, the Kefaya movement (2004)
drew in both Islamist and liberal elements. In Yemen in 2005, the
Islamist party Islah entered into an electoral coalition with the
Yemeni socialist party—a cooperation that continued to some degree
in 2011 in the street protests against President Ali Abdullah Saleh. It
is important to avoid the temptation to see the world in simplistic,
culturally determined binaries. Instead, we should be mindful of a
diversity of political and social trends, including grassroots-level
human rights movements influenced by global norms and laws.10
Members of both the ‘April 6 Youth Movement’ and Kefaya were
behind the creation of another popular Facebook group, one
supporting Mohamed ElBaradei, the former head of the International
Atomic Energy Agency (IAEA), who returned to Egypt in 2010. In
June 2010, activists, led by Wael Ghonim, a Google executive,
created a Facebook page called Kullena Khaled Said (“We are all
Khaled Said”) in memory of a young man whose cell phone
contained images of political brutality and drug use and was beaten
to death on June 6, 2010, by two secret police officers in Alexandria.
is page aracted more than one million supporters and became
the focal point for a number of large protests against state abuses in
the summer of 2010. Ghonim, Abdel Rahman Mansour, and many of
435
their colleagues brought the Khaled Said case into the public
consciousness by organizing several “Silent Stands” on June 18 and
25, and July 9, 2010, mainly organized at the cornie in Cairo and
Alexandria by online activists, while also posting on the Kullena
Khaled Said Facebook page. ese online activists, as well as many
bloggers, brought out more than eight thousand people on June 25,
2010, when ElBaradei, who at the time was running as a presidential
candidate, took part. It was evident that the fear barrier was broken
and virtual activism had been transferred into real-world action.11
Solidarity with the Khaled Said cause transcended national
borders, as groups from Tunisia and Yemen began creating Facebook
pages in support of Egyptian online activists. Khaled’s Tunisian
Facebook page drew over one thousand members within two days of
its laun.12 e triggering event for the 2011 uprisings in Egypt
happened some 1,300 miles away in Tunisia, when Mohammad
Bouazizi—a street fruit vendor whose cart was confiscated by the
police—set himself on fire in protest on December 17, 2010. He died
on January 4, and shortly thereaer on January 14 Tunisian
President Ben Ali fled to Saudi Arabia.13 What happened in Tunisia
encouraged and enabled Egyptians to follow suit. Wael Ghonim took
the Egyptians to task by posting on the Kullena Khaled Said
Facebook page on January 14, 2011, the following message: “Today is
the 14th … January 25 is Police Day and it’s a national holiday … If
100,000 take to the streets, no one can stop us … I wonder if we can?” 14
e interaction of organized groups, networks, and social media
was crystallized in nonviolent anti-Mubarak protests that removed
the long-reigning autocrat from power on February 11, 2011. ese
protests, some experts contend, showed that Egyptian society, mu
like Western societies, has transformed away from traditional
organizations and media—su as TV, radio, and newspapers—and
toward more loosely structured “networked societies,” where there is
less group control and more individual autonomy.15 ere is no
436
denying that social media provided affordable access to social
movements by reducing the costs of mobilization and organization,
while accelerating the dissemination of information. Young men and
women in Egypt were able to use social networks, the Internet, and
mobile phones “to access large and diversified networks, rea
beyond physical and social boundaries, and exploit more resources
to potentially bring about social ange.”16 Yet it is important to be
aware of the euphoria about social networking. e fact remains that
Twier alone is unlikely to generate successful uprisings. While new
media tools have a catalytic role, as experts remind us, it is the
symbiosis between off-line activity on the ground and online
activism that is critical to how protests aieve their goals.17
In the cases of Iran and Egypt, the governments resorted to
Internet cradowns, shuing down Internet and cell phone
communications, before starting a violent cradown against
protesters. According to one source, a U.S. company—Boeing-owned
Narus of Sunnyvale, California—had sold Egypt [Telecom Egypt, the
state-run Internet service provider] ‘Deep Paet Inspection’ (DPI)
equipment that could have been used to help the Mubarak’s regime
tra, target, and crush political dissent over the Internet and mobile
phones. e same company is selling this spying tenology to other
regimes with lamentable human rights records. Before DPI becomes
more widely used, both abroad and at home, the U.S. government
must establish transparent and legitimate guidelines for preventing
the use of su surveillance and control tenology.18
New forms of Internet-based activism proved to be a central factor
leading to the ouster of President Morsi. Tamarod—or the ‘revolt’
movement—used all tools of grassroots mobilization, including the
Internet, formal media, and the street protests, to collect signatures
demanding Morsi’s resignation. Created by the members of Kefaya,
nearly 22 million signatures were collected in a maer of weeks. is
widespread campaign became a catalyst for the 2013 protests that
culminated in Morsi’s ouster by a military coup.19
437
Demographics of protests
Many factors have contributed to the uprisings throughout the
world, from Latin America to Europe, and from the Middle East and
North Africa to Asia. ese factors include, but are not limited to,
high unemployment rates, la of basic freedoms, poor governance,
absence of food security, and falling real wages. e problem of the
demographic youth bulge and unemployment has put enormous
pressure on the region’s education and health care systems, natural
resources, and labor markets. Ultimately, however, the greatest strain
is in the labor market, as in some cases, like Egypt, it takes five years
before 75 percent of all university graduates obtain work.20 On
balance, however, Tunisians are beer educated and more urbanized
than their neighbors. With 7.2 percent of their GDP spent on
education, Tunisians are steadily ranked among the most
modernized countries in the Middle East and North Africa. In
contrast, Algeria spends 4.3 percent of its GDP on education, Egypt
at 3.8 percent, Libya at 2.7 percent, Jordan at 4.9 percent, and Yemen
at 5.2 percent.21
e fact remains that, like Iran, Tunisia has become a middle-class
society imbued with rising expectations and demands for political
freedoms. e façade of stability in these countries is misleading and
the preservation of the status quo ante is no longer sustainable as
long as their citizens cannot freely express their economic and
political grievances. In Iran, the youth movement, also known as the
‘Green Movement,’ emerged during the disputed 2009 presidential
elections. It initially shook the foundations of the Islamic Republic
but was subsequently squashed by the regime. One of the most
dramatic aspects of the Green Movement was the split within the
Islamic Republic. One observer aptly captured this development:
438
“Iran suffered political fissures in 2009 precisely because the
establishment (and most anyone in the opposition could be
considered a part of the establishment) has split so openly, not
because dissidents had burst onto the scene.”22
e ‘Green Movement’ was also indicative of larger problems
with whi young Iranians were struggling. One study demonstrates
that four major problems contributed to deep frustration and
political dissent: (1) unemployment, (2) independence, (3) sexual
crisis, and (4) drugs. Because of the large numbers of unemployed,
especially among college graduates, according to the International
Monetary Fund, Iran has experienced one of the world’s highest
rates of brain drain.23 Almost three-quarters of Iranians in their
twenties still live with their parents, partly because they cannot
afford to live on their own. Social interaction among young males
and females who are not married is formally prohibited. Su stiff
restrictions have resulted in an underground social culture, whi
has led to widespread promiscuity, despite stiff penalties. Alongside
this illicit social culture, the use of narcotics has become a serious
problem among youth.24
A qui glance at the demographics behind the resurgence of
Iran’s Green Movement in 2009 explains why educated young
women were at the forefront of this reformist movement. In the
1970s, toward the end of the Pahlavi monary, nearly 5 percent of
college-age youth went to college. By 2009, the figure had reaed 31
percent.25 e girls outnumbered boys in secondary sools (1996),
primary sools (1999), and higher education (2001).26
e women’s participation in both Iran’s Green Movement and
the broader Arab uprisings should, therefore, come as no surprise,
even as throughout the MENA region, as experts find, women’s
organizations have historically remained relatively weak owing to
state restrictions on their activities in civil society. Yet, across North
Africa, variations in gender relations, women’s legal status, and
women’s collective action before the 2011 uprisings, as well as the
439
nature of the transitions and sociopolitical forces involved, help to
account for the divergent outcomes. e women’s rights movements
in Algeria, Morocco, and Tunisia, for example, have had an
advantageous position over those in Egypt and Libya in terms of the
composite measure of women’s legal status, women’s organizations,
and the institutional legacy of the previous regime. In Morocco,
thanks to the activities of I`Union de I`Action Feminine (UAF), the
family law was replaced in 2004 with a more egalitarian set of laws
and norms for marital life and family affairs. In 2007, the Nationality
Code gave women and men equal rights to transfer nationality to
their ildren.27
Although both men and women were equally active in the 2011
uprisings in Egypt, the absence of an organized democratic protest
movement and the impotence of the secular political parties allowed
the Muslim Brotherhood and military to assume control. e dra
constitution approved by the country’s first Constituent Assembly
proved woefully inadequate to protect women’s rights and the rights
of religious minorities, for it restricted freedom of expression in the
name of protecting religion; it allowed for the military trial of
civilians, and it blatantly failed to protect the rights of ildren,
especially those of young girls, who are subjected to early
marriage.28
440
e unemployment crisis
A combination of a suffocating political climate and rising
unemployment rates in the aermath of these uprisings have caused
great concerns and disillusionment on the part of youth, who see
lile or no hope for the future.29 In the wake of recent and rapidly
unfolding economic pressures, massive brain drain is all but
inevitable in the region. One study showed that an astounding 26
percent of young people, aged 15 to 29, across the MENA region
have expressed the desire to migrate and leave the Middle East in
sear of beer educational and career opportunities.30
e unemployment rates throughout the MENA region are
depressingly high. Youth unemployment rates for 2011 were
noticeably high in Tunisia (42.3 percent), Palestine (35.7 percent),
and Egypt (29.7 percent).31 Having successfully won the right to free
and fair elections, young people still could not earn a decent living
or start a family. ey have become disillusioned with the long-term
results of the Arab uprisings.32 is explains why in a country like
Tunisia, where positive moves toward democracy have enabled
young people to express their dissident views, uncertainty, and
mistrust have led a disgruntled minority to embrace the Islamic State
in Iraq and Syria (ISIS). According to one report, nearly three
thousand Tunisians have traveled to Syria and Iraq to join the
group.33
e region’s high youth unemployment rates, coupled with poor
economic conditions and local job prospects, discrimination, and
insufficient investment in work-related skills, as well as exclusive
access to tertiary education, have le many young people with mu
dismay and distrust in their political systems’ ability to grow.34
Today, in the MENA region, two-thirds of the population is under
441
eighteen. is part of the population faces one of the highest
unemployment rates in the world, as the region ranks among the
worst for youth unemployment,35 approximately 30 percent, high
population growth, and poor education.36
It would be far too facile to conclude, however, that the 2011 Arab
upheavals were caused simply by the youth bulge. Rather, a
combination of bleak employment prospects, elitist power structures,
and repression contributed to revolutionary upheavals.37 is
explains why youth demands during the Arab Spring were
encapsulated in four concepts: ange, bread, liberty, and social
justice—aspirations largely based on secular motivations. It is
important to remember that these uprisings were driven just as
equally by causes relating to economic justice and security as by the
demands for liberty. Despite the fact that the prevailing mantra in
Tahrir Square was Hiya thawrat karama (“is is a revolution of
honor and dignity”), the underlying socioeconomic causes were
decades in the making and led young protesters to take to the streets
to express and demonstrate their anger and frustration.
Just as the secular orientation of these demands called for a fresh
need to scrutinize the failure of regimes in power, so did the all-too
familiar language of human rights and personal dignity that stood at
the heart of newfound desires of the youth population. In Tunisia,
Ben Ali was forced to flee the country as his youthful population
staged huge demonstrations with new and old modes of
communication to topple his regime. Likewise, in Egypt, the vibrant
April 6th Youth Movement played a significant role in utilizing
social media and the Internet to mobilize the opposition against the
Mubarak rule. is group, however, was quily sidelined by the
military, whi accused the Youth Movement’s members of taking
U.S. funding.38
Across the region, young people face similar pressures and
restraints on their life prospects, aspirations, and living conditions.
Today, the Middle East is home to a large number of young people
442
who are more educated and plugged into social media than ever but
la the economic opportunities and possibilities for social mobility
that older generations enjoyed.39 A key pressure point in the
controversy over democratic reforms in the Middle East today is that
many leaders still show an obstinate refusal to admit the necessity
for socioeconomic ange. e fact remains that political reforms are
unlikely to be sustained over time if they are not shored up by social
and economic development. With absent policies to tale structural
problems that cause inequality, exclusion, and disempowerment, the
future of democratic reforms remains problematic.
443
Cyber-activism
e development of new digital tenologies, especially online social
networking, has enhanced the level of youth participation in
cyberspace in a wide variety of ways, including access to
information and participation in informal and formal groups.40
Marked by the elements of anonymity, speed, wider rea, and
connectivity, these new tenologies have become the most effective
tools of organizing and instigating uprisings, making the sear or
the need for a populist leader unnecessary and making mass
mobilization and protest possible.41 ese elements have enhanced
young people’s capacity to effectively engage and participate in
mobilizing civic movements as well as to advocate for human rights
and social ange. For the region’s many young people, especially
females, Information and Communication Tenologies (ICTs) and
social networking tenology are enabling tools.
By prompting interactivity and participation, where one becomes
not only consumer but also creator of online content, and where
sharing ideas and exanging feedba becomes the norm, these new
digital tenologies enable youth to redefine paerns of
participation, civil involvement, and self-expression.42 Access to new
media has transformed communications throughout the Middle East
and North Africa region and, together with the emergence of a wide
variety of new satellite television annels (e.g. al-Jazeera and al-
Arabia), is likely to help its citizens form public discourse around
notions of accountability, justice, and freedom.43 is has led to the
emergence of a new political culture informed by modern ideas,
ideals, and values, oen known as “tenological citizenship.” is
form of citizenship emphasizes inclusive rights of an individual as a
“citizen” of social justice and pursuit of modern global norms as
444
opposed to those of exclusive prerogatives su as sectarian and
ethnic identities.
e year 2011 began with the social media–driven uprisings and
protests in the Middle East and North Africa, toppling the two
regimes of Tunisia’s Zine El Abidine Ben Ali and Egypt’s Hosni
Mubarak that had seemed firmly entrened. is peaceful
democratic ange has posed the most formidable allenge to the
rule of autocrats and monars throughout the region. By way of
comparison, as one observer writes, these peaceful revolutions were
reminiscent of popular uprisings 162 years earlier that began in
Sicily and France. e revolutions of 1848 keenly resemble, in mood,
recent developments in the MENA region. e badrop then, as
now, was a recession and rising food prices. e monaries—araic
and resistant to ange—were allenged by the young. Mass
newspapers at the time connected the crowds. e difference
between those movements and today’s is that while the old regimes
subsequently reconstituted themselves, these new waves of ange
in the MENA region seem irreversible.44 Especially in authoritarian
regimes, where freedom of expression and assembly are non-
existent, a combination of the demographic youth bulge and new
tenological resources and digital social networks on the Internet—
Twier, YouTube, Facebook, and other tools of communication—has
created new dynamics of ange in the region, making it possible for
the virtual and actual participation of people in the affairs of their
communities.
e digital world has drastically altered the face of the Middle
East and North Africa. Social networks have practically replaced the
old public sphere, occupied by the traditional meeting places su as
suq (bazaar or marketplace) and mosques, where the general public
used to gather for the exange of ideas and social intermingling, as
well as for many other types of interactions. As modernizing and
globalizing forces allenge traditional identities, experts note,
newer forms of identities based on individual oice and
445
accountability arise. Increasingly, young people view their own
decisions as a oice rather than an unmitigated force imposed by
cultural traditions and social norms.45
With few exceptions, teen life in the MENA region is generally
aracterized as informed by cultural impulses from many different
directions. Turkish teens hold onto old beliefs, values, and cultural
traditions while also vividly exposed to new tenology, Western
ideas, and anging social norms.46 Increasingly, throughout the
region, especially in the case of Iran, young people have become
more pragmatic, more autonomous, less conformist, and more
conscious of the outside broader global community.47
More and more young people in the MENA region have come to
express their opposition to the repressive regimes under whi they
have lived through the larger strategies of nonviolence, non-
cooperation, and civil disobedience. A survey in Egypt conducted in
2009 demonstrated that 75 percent of the young Egyptians
considered “protecting freedom of spee” as an important issue to
them.48 In the same study, 63 percent of the youth regarded
“protecting political rights” as amongst their key demands. Contrary
to the widely held view that Arab youths are oen raised in an
environment of religious radicalism and anti-Americanism and that
these values thus have “become the formative elements of a new and
dispossessed generation,” in reality, these protests have illustrated
that young people “were a big part of the silent, moderate majority.” 49
446
e April 6 Youth Movement
As noted above, the roots of social media–driven uprisings can be
traced ba to the Kefaya movement that was in solidarity with
textile workers who were planning a strike on April 6, 2008. Hence
the origin of the name: ‘April 6 Youth Movement,’ whi referred to
a loose coalition of many groups of activists, opposition parties,
lawyers, professors, and student protesters. In 2008, workers at Al-
Mahalla Textiles in the Egyptian city of Mahalla called a strike on
April 6. Although no major protests ensued, two activist workers
were killed, and the city became, albeit briefly, a site of violent
confrontation between workers and security forces.50
Ahmed Maher, 30, gained prominence in 2008 as one of the co-
founders of this movement—a solidarity group launed to support
protests. Organizing mostly online, especially on Facebook, it was a
decentralized network of activists who used the tools of social media
to broadcast economic and political grievances against the Mubarak
regime, mobilize support, evade the government’s ubiquitous
security forces, and, later, help bring down the Mubarak regime.
Ahmed Maher and Ahmed Salah, young members of the Kefaya
opposition group, braned off and helped laun a Facebook group
to promote a protest planned for April 6, 2008.51 e movement
aracted 70,000 members on Facebook, making it the largest youth
movement in Egypt at the time.52
Given the limits of social networking as a tool of democratic
revolution, leaders of the “April 6 Youth Movement” sought to study
and learn from both post-communist democratic ange in Eastern
Europe and NGOs in the West. In the summer of 2009, Mohamed
Adel, a 20-year-old blogger and April 6 activist, traveled from Egypt
to Belgrade, Serbia, where he received training at the Center for
447
Applied NonViolent Action and Strategies (CANVAS)—an
organization that was vociferously involved in the mass mobilization
against Slobodan Milošević in the late 1990s. CANVAS helped Adel
to figure out how to turn a cynical, passive, and fearful public into
activists.53 By aending several workshops, Adel learned how to use
new media and tenology to galvanize and mobilize a large-scale,
nonviolent revolutionary effort by stressing unity, seing clear goals,
and keeping members engaged.54
In early 2010, Bassem Samir, the 28-year-old director of the
Egyptian Democratic Academy, led a small delegation to the United
States for media training. A U.S.-based NGO, with funding from the
State Department, oversaw training sessions led by digital journalists
from Time magazine and documentary filmmakers affiliated with
human rights organization Witness, in whi the Egyptian activists
were taught camera operation and ways of using effective online
videos.55 During the 2011 uprisings, Samir used his office for the
purposes of feeding images taken by the activists on the ground to
the international media. e way these young activists used new-
media tools and methods proved crucial in fanning the flames of
protest into the streets during those 18 days of uprisings (January 25
–February 11, 2011), where it was then propelled by people who
were not particularly familiar with su social networking sites as
Facebook and Twier. 56
448
Arab hip-hop culture
Arab hip-hop culture and its relevance to the 2011 Arab uprisings is
key to understanding newly emerging identities among the Arab
youth.57 A new generation of Muslim playwrights and filmmakers
has turned protest into an art form, proving that the pen is more
potent than the suicide bomb.58 As in the rest of the world, hip-hop
culture in the Muslim world, represented by rap music and
popularized by public graffiti, has come to mobilize the youth’s
defiance against their governments and create a sense of solidarity—
both inside their country and across the border—with those defying
the status quo. Rap music has become a tool for venting
longstanding and pent-up frustrations and grievances as people
throughout the Arab world have sought to redefine their relationship
with the state and their rights as citizens. Increasingly, hip-hop songs
have become anthems of protests and rebellion against autocrats and
extremists across the Arab world. Just as rap initially provided an
alternative to gang violence for young blas in the Bronx (New
York City), as Robin Wright has observed, hip-hop culture has
offered an alternative to suicide bombs and Molotov cotails among
Palestinians.59
Likewise, the lyrics of rappers have linked feelings and
frustrations of diasporic communities with their homelands. One
observer notes that
It has been hip-hop that has become the most iconic and widespread soundtra of the
Arab Spring and, interestingly, it is having the double effect of helping to mobilize
activists in the countries directly impacted by the pro-democracy movements while also
solidifying links between Arab diasporic communities in the West with those still
residing in the homeland.60
449
is dynamic became apparent with the popularity of protest songs
by Chicago-based artist Khaled M. Libyan. By birth, Khaled M. is the
son of a Libyan dissident whose father was tortured and jailed under
the Qaddafi regime. Khaled’s father died when he was nine. Aer
protests broke out in Libya on February 17, 2011, Khaled M. released
the haunting single “Can’t Take Our Freedom,” whi reads like an
open leer to both Qaddafi and the people of the MENA region:
Can’t take our freedom and take our soul/can’t take our freedom, take our soul/you are
not the one that’s in control/you are not the one that’s in control/lā ilāha illallāh, there
is no power greater than God/go ahead and divide your plans/at the end of the day you
are just a man.61
e song powerfully employs the shahada and a common humanity
to decapitate the Qaddafi regime while encouraging protesters from
all over the Arab world to rise up against oppression. It also points to
a strengthening of familial, political, and identity ties and interests
between diasporic Arabs who have long lived abroad and younger
generations who may have never visited the countries their parents
originally migrated from. is sense of connectedness, renewed by
the song “Can’t Take Our Freedom,” has prompted a collaboration of
sorts between diasporic communities in the rewriting of history with
those who never le the country of origin but nevertheless felt
disenanted and dispossessed by the repressive regimes under
whi they lived. Khaled’s story, as a multilingual Libyan-American
with a dual identity and global popularity, demonstrates that the
Arab Spring has become a multifaceted, globalized movement
transcending the MENA region.62
Similarly, a young Tunisian rapper—known as El General, whose
real name is Hamada Ben Amor—posted a song on his Facebook
page and YouTube annel. e song was entitled “Rais Lebled”
meaning “President of the Country.” It expressed through music a
youth culture of defiance and outrage against prevailing
socioeconomic ills, including unemployment, poverty, and social
450
injustice in Tunisia, placing the blame squarely on the Tunisian
government. El General’s video was pied up by Al Jazeera aer
whi it went viral. e lyrics of this song quily and forcefully
resonated with many young people who lived under the repressive
regime of Ben Ali for so long.63
is song had a transformative influence, as it set the stage for the
‘Jasmine Revolution’ that broke out subsequently. It did what many
Tunisians dared not do: speak out.64 Western media labeled su
peaceful democratic uprisings throughout the region as the Jasmine
Revolution in keeping with the geopolitical nomenclature of “color
revolutions” that had transpired in Georgia and Ukraine in the
previous years. What singled out the uprisings in Tunisia, however,
was that Mohammad Bouazizi’s self-immolation on December 17,
2010, together with the powerful lyrics of the young rapper El
General, became two symbols that, in Wright’s words, “had
transformed political activism in Tunisia—and in turn the entire
Arab world.”65
In Yemen, Hagage “AJ” Masaed, known as the godfather of
Yemeni hip-hop, places a high value on hip-hop music, arguing that
it can be “a tool to effect social ange.” One of the bales he has
taken on is education and trying to keep young Yemenis in sool.
“Youth listen to me. I’m puing out positive messages in hip-hop
form. ey like what I’m doing and I’m flipping it in Arabic and in
English,” said Masaed. “e sools, the tools/You have to believe/If
we live, learn, love/Defeat enemies,” are a few of the lines from his
song “Biladee” (in English, “My Country”) whi advocates for
education to combat terrorism. It continues, “too many followers we
need more leaders to lead … so no terrorists please.”66
Palestinian hip-hop rappers, su as Tamer Nafar, have expressed
their rage with a microphone—not a weapon—and have repeatedly
condemned extremism and violence by both Israelis and
Palestinians, even as their songs have contextualized the civil
disobedience and suicide bombings of the 1987 and 2000 intifada
451
uprisings, respectively. For a new generation of Palestinians, hip-hop
has filled a social and communications void, capturing the popular
sentiment that has largely turned against violence and jihadists.67
452
Conclusion
Nearly five years aer the Arab Spring, the people’s hope for
democratic reforms in the Arab world has been all but shaered. e
frustrations experienced by young educated people who have been
unable to fulfill their aspirations in societies that have laed the
capacity to accommodate them continue in the aermath of the
uprisings. e increasing acceleration of tenology has noticeably
allowed disenfranised groups the ability to find a voice. While the
MENA region has anged, in some cases for the beer, it is not
clear where the broader trajectory of the region is going. e Arab
Spring revolts have become “a strange mixture of revolution,
counterrevolution and foreign intervention.”68 In su a context,
counterrevolution may prove as difficult to solidify as revolution
itself.69
Young men and women, who spearheaded massive peaceful
demonstrations in 2011, are still eager to talk about new politics.70
With the exception of Tunisia, a reversion to the repressive tactics of
the past and heavy-handed policies enacted by the military-led
Egyptian government, coupled with the continuing political tensions
in Yemen, Bahrain, Libya, and Syria, have all cast their dark
shadows over the optimistic view that only recently engulfed the
region. e phrase “demography is destiny” may be an old adage
and somewhat overstated, but demographic realities cannot be
ignored.
ese young people are not driven by religious beliefs, but instead
are determined to confront the underlying structural conditions of
their society that leave them with lile hope of improvement.
According to one report, although Tunisia’s steps toward democracy
have enabled young people to express their dissident views,
453
impatience with and skepticism regarding the prospect for
employment opportunities have evidently led a disappointed
minority to join the insurgent Islamic State in Iraq and Syria (ISIS).
Tunisian officials have said that at least 2,400 Tunisians have
traveled to Syria and Iraq to join the group.71
Unless the Arab world’s leaders put in place effective economic
policies addressing structural problems that their countries face,
their bankrupt politics are certain to lead to more instability. e
pressure cooker of Arab societies, whi most recently exploded
under economic insecurity and suffocating repression, has been
defused for the time being, but is unlikely to prevent steam from
flaring up in coming years.
454
Notes
1 Vlerie Bunce, “Rebellious Citizens and Resilient Authoritarians,” in Fawaz A. Gerges, ed.,
The New Middle East: Protest and Revolution in the Arab World, New York: Cambridge
University Press, 2014, pp. 446–68; see p. 451.
2 James L. Gelvin, The Arab Uprisings: What Everyone Needs to Know, New York: Oxford
University Press, 2012, p. 48.
3 Marc Lyn, The Arab Uprising: The Unfinished Revolutions of the New Middle East,
New York: Public Affairs, 2012, p. 78.
4 Melani Camme, Ishac Diwan, Alan Riards, and John Waterbury, Fourth Edition, A
Political Economy of the Middle East, Boulder, CO: Westview Press, 2015, p. 427.
5 Miael Hoffman and Amaney Jamal, “Political Aitudes of Youth Cohorts,” in Marc
Lyn, ed., The Arab Uprisings Explained: New Contentious Politics in the Middle East,
New York: Columbia University Press, 2014, pp. 273–95; see p. 275.
6 I have drawn several arguments of this apter from my work elsewhere, Democratic
Uprisings in the New Middle East: Youth, Technology, Human Rights, and US Foreign
Policy, Boulder, CO: Paradigm Publishers, 2014.
7 Camme, Diwan, Riards, and Waterbury, op. cit., p. 429.
8 Marc Lyn, “Media, Old and New,” in Marc Lyn, ed., The Arab Uprisings Explained:
New Contentious Politics in the Middle East, New York: Columbia University Press,
2014, pp. 93–109; see p. 94.
9 Ibid., p. 94.
10 Ibid., pp. 17–19.
11 Wael Ghonim Wael, Revolution 2.0: The Power of People Is Greater than the People in
Power: A Memoir, Boston: Houghton Miffline Harcourt, 2012, p. 80.
12 Ibid, p. 85.
455
13 Dina Shebata, “e Fall of the Pharaoh: How Hosni Mubarak’s Reign Came to an End,”
Foreign Affairs, vol. 90, no. 3, (2011), pp. 26–32; see p. 29.
14 Wael Ghonim, op. cit., p. 134.
15 Xiaolin Zhuo, Barry Wellman, and Justine Yu, “Egypt: e first Internet Revolt?”
available at hp://peacemagazine.org/arive/v27n3p06.htm. Accessed on July 13, 2011.
16 Ibid.
17 Jina Morre, “e Revolution Will be Blogged,” The Christian Science Monitor, July 4,
2011, pp. 26–31; see especially p. 28.
18 David DeGraw, “Analysis of the Global Insurrection Against Neo-Liberal Economic
Domination and the Coming American Rebellion–We Are Egypt [Revolution
Roundup#3],” available at hp://daviddegraw.org/2011/03/analysis-of-the-global-
insurrection-against-neo-liberal-economic-domination-and-the-coming-american-
rebellion-we-are-egypt-revolution-roundup-3/. Accessed on June 27, 2011.
19 Melani Camme, Ishac Diwan, Alan Riards, and John Waterbury, op. cit., p. 428.
20 Edward Sayre and Samantha Constant, op. cit.
21 Kristen Chi, “Why Tunisia? Why Now?” The Christian Science Monitor, January 31,
2011, pp. 8–10; see especially p. 10.
22 Hooman Majd, The Ayatollahs’ Democracy: An Iranian Challenge, New York: W. W.
Norton & Co., 2010, pp. 59–60.
23 Omid Memarian and Tara Nesvaderani, “Iran’s Youth: Agents of Change,” United States
Institute of Peace, Peacebrief 51, September 9, 2010, available at
hp://permanent.access.gpo.gov/gpo34803/Iran%20Youth.pdf. Accessed on July 1, 2015.
24 Ibid.
25 Charles Kurzman, “Cultural Jiu-Jitsu and the Iranian Greens,” in Nader Hashemi and
Danny Postel, eds, The People Reloaded: The Green Movement and the Struggle for
Iran’s Future, Brooklyn, NY: Melville House, 2010, pp. 7–17; see especially p. 8.
26 Ibid., p. 8.
27 Valentine M. Moghadam, “Democratization and Women’s Political Leadership in North
Africa,” Journal of International Affairs vol. 68, no. 1, (2014), 59–78; see pp. 61–4.
456
28 Ibid., p. 69.
29 e discussions in this section are based on Mahmood Monshipouri, “Tahrir’s Legacy:
Opportunities and Hazards for the Future of Youth Movements in the Middle East,”
Georgetown Journal of International Affairs, December 1, 2014. Available at
hp://journal.georgetown.edu/tahrirs-legacy-opportunities-and-hazards-for-the-future-
of-youth-movements-in-the-middle-east/. Accessed on September 4, 2016.
30 See www.silate.com/docs/silate-index/silate-index-january-2010.pdf?sfvrsn=20.
Accessed on September 4, 2016.
31 Marilena Stoenescu, “Youth statistics - North Africa and Eastern Mediterranean,”
European Commission: Eurostat, October, 2014. Available at
hp://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Youth_statistics_-
_North_Africa_and_Eastern_Mediterranean. Accessed on November 8, 2014.
32 M. Chloe Mulderig, “An Uncertain Future: Youth Frustration and the Arab Spring,”
Boston University, e Papers/No. 16, April 2013, pp. 1–33; see p. 24. Available at
www.bu.edu/pardee/files/2013/04/Pardee-Paper-16.pdf?PDF=pardee-papers-16-arab-
spring. Accessed on November 7, 2014.
33 David D. Kirkpatri, “New Freedoms in Tunisia Drive Support for ISIS,” The New York
Times, October 22, 2014, pp. A1 and A8; see especially p. A8.
34 Yara al-Wazir, “Brian Drain: Why a arter of Young Arabs Want to Leave eir
Countries,” Al-Arabia News: Middle East, April 25, 2014. Available at
hp://english.alarabiya.net/en/views/news/middle-east/2014/04/25/Brain-Drain-why-a-
quarter-of-young-Arabs-want-to-leave-their-countries.html. Accessed on November 7,
2014.
35 See: www.makingitmagazine.net/?p=6094. Accessed on September 4, 2016.
36 Mahmood Monshipouri, Democratic Uprisings in the New Middle East: Youth,
Technology, Human Rights, and US Foreign Policy, Boulder, CO: Paradigm Publishers,
2014, p. 27.
37 Juan Cole, The New Arabs: How the Millennial Generation is Changing the Middle East,
New York: Simon & Suster, 2014, p. 26.
457
38 Mar Lyn, The Arab Uprisings: The Unfinished Revolutions of the New Middle East,
New York: Pacific Affairs, 2012, p. 134.
39 Melani Camme, Ishac Diwan, Alan Riards, and John Waterbury, Fourth Edition, A
Political Economy of the Middle East, Boulder, CO: Westview Press, 2015, p. 425.
40 Mahmood Monshipouri, Democratic Uprisings in the New Middle East: Youth,
Technology, Human Rights, and US Foreign Policy, Boulder, CO: Paradigm Publishers,
2014, pp. 58–9.
41 Wael Ghonim, Revolution 2.0, op. cit., p. 59.
42 Council of Europe, “Training Course: New Media in Youth Work,” European Youth
Center, Strasbrug, Budapest, July 5, 2011, DJS/TC Media (2011) 1.
43 Pamela Ann Smith and Peter Feuilherade, “Now, the Media Revolution,” The Middle
East, Issue 427, November 21, 2011, pp. 35–8; see p. 38.
44 Fareed Zakaria, “Why It’s Different is Time,” Time, February 28, 2011, pp. 30–1; see
especially p. 31.
45 Ali Akbar Mahdi, “Introduction: Teens, Islam, and the Middle East,” in Ali Akbar Mahdi,
ed., Teen Life in the Middle East, Westport, CT: Greenwood Press, 2003, pp. 1–12; see
especially p. 9.
46 Meral Kaya, “Turkey,” in Ali Akbar Mahdi, “Introduction: Teens, Islam, and the Middle
East,” in Ali Akbar Mahdi, ed., Teen Life in the Middle East, Westport, CT: Greenwood
Press, 2003, pp. 209–28; see especially p. 226.
47 Malihe Maghazei, “Iran,” in Ali Akbar Mahdi, “Introduction: Teens, Islam, and the
Middle East,” in Ali Akbar Mahdi, ed., Teen Life in the Middle East, Westport, CT:
Greenwood Press, 2003, pp. 13–32; see especially p. 29.
48 Farzaneh Roudi-Fahimi, Shereen El Feki, and Tyjen Tsai, “Youth Revolt in Egypt: A
Country at the Turning Point,” Population Reference Bureau. Available at
www.prb.org/Publications/Articles/2011/youth-egypt-revolt.aspx. Accessed on July 30,
2015.
49 Bobby Ghosh, “Rage, Rap, and Revolution,” Time, February 28, 2011, pp. 32–7; see
especially p. 34.
458
50 Wael Ghonim, Revolution 2.0, op. cit., p. 36.
51 David Wolman, “All Posts Tagged Ahmed Maher: Did Egypt Detain A Top Facebook
Activist?” Wired, February 2, 2011. Available at
www.wired.com/dangerroom/tag/ahmed-maher/. Accessed on June 21, 2001.
52 Dina Shebata, “e Fall of the Pharaoh: How Hosni Mubarak’s Reign Came to an End,”
Foreign Affairs, vol. 90, No. 3, May/June 2011, pp. 26–32; see especially p. 28.
53 Tina Rosenberg, “Revolution U,” in Marc Lyn, Susan B. Glasser, and Blake Hounshell,
eds, Revolution in the Arab World: Tunisia, Egypt, and the Unmaking of an Era,
Washington, D.C.: Foreign Policy, 2011, pp. 127–42; see especially pp. 127–9.
54 Ibid., p. 141.
55 Maryam Ishani, “e Hopeful Network,” in Marc Lyn, Susan B. Glasser, and Blake
Hounshell, eds, Revolution in the Arab World: Tunisia, Egypt, and the Unmaking of an
Era, Washington, D.C.: Foreign Policy, 2011, pp. 127–42; see especially pp. 143–8.
56 Ibid., p. 148.
57 e discussions in this section are based on Mahmood Monshipour, Democratic
Uprisings in the New Middle East: Youth, Technology, Human Rights, and US Foreign
Policy, Boulder, CO: Paradigm Publishers, 2014.
58 Robin Wright, Rock the Casbah: Rage and Rebellion Across the Islamic World, New York:
Simon & Suster, 2012, p. 215.
59 Ibid., p. 127.
60 Lara Dotson Renta, “Hip-Hop & Diaspora: Connecting the Arab Spring,” Arab Media &
Society, Issue 13, Summer 2011. Available at www.arabmediasociety.com/?article=777.
Accessed on January 10, 2012.
61 Ibid.
62 Ibid.
63 Robin Wright, op. cit., p. 116.
64 Ibid., pp. 116–17.
65 Ibid., p. 118.
459
66 Rose Haman, “Hip-Hop the Soundtra of Arab Spring,” e dailynewsegypt.com,
January 12, 2012. Available at hp://thedailynewsegypt.com/music/hip-hop-the-
soundtra-of-the-arab-spring.html. Accessed on January 12, 2012.
67 Robin Wright, op. cit., pp. 128–32.
68 Patri Coburn, The Rise of Islamic State: ISIS and the New Sunni Revolution, London:
Verso, 2015, p. 132.
69 Ibid., p. 150.
70 Mahmood Monshipouri, “Tahrir’s Legacy: Opportunities and Hazards for the Future of
Youth Movements in the Middle East,” Georgetown Journal of International Affairs,
December 1, 2014. Available at hp://journal.georgetown.edu/tahrirs-legacy-
opportunities-and-hazards-for-the-future-of-youth-movements-in-the-middle-east/.
Accessed on September 4, 2016.
71 David D. Kirkpatri, “New Freedoms in Tunisia Drive Support for ISIS,” The New York
Times, October 21, 2014. Available at www.nytimes.com/2014/10/22/world/africa/new-
freedoms-in-tunisia-drive-support-for-isis.html?_r=0. Accessed on July 30, 2015.
460
Selected Bibliography
Coburn, Patri, The Rise of Islamic State: ISIS and the New Sunni
Revolution, London: Verso, 2015.
Cole, Juan, The New Arabs: How the Millennial Generation is
Changing the Middle East, New York: Simon & Suster, 2014.
Gelvin, James L., The Arab Uprisings: What Everyone Needs to
Know, New York: Oxford University Press, 2012.
Ghonim, Wael, Revolution 2.0: The Power of People Is Greater than
the People in Power: A Memoir, Boston: Houghton Miffline
Harcourt, 2012.
Ishani, Maryam, “e hopeful network,” in Marc Lyn, Susan B.
Glasser, and Blake Hounshell, eds, Revolution in the Arab World:
Tunisia, Egypt, and the Unmaking of an Era, Washington, D.C.:
Foreign Policy, 2011, pp. 127–42.
Kirkpatri, David D., “New freedoms in Tunisia drive support for
ISIS,” The New York Times, October 22, 2014, pp. A1 and A8.
Kurzman, Charles, “Cultural Jiu-Jitsu and the Iranian Greens,” in
Nader Hashemi and Danny Postel, eds, The People Reloaded: The
Green Movement and the Struggle for Iran’s Future, Brooklyn,
NY: Melville House, 2010, pp. 7–17.
Lyn, Marc, The Arab Uprising: The Unfinished Revolutions of the
New Middle East, New York: Public Affairs, 2012.
Mahdi, Ali Akbar, ed., Teen Life in the Middle East, Westport, CT:
Greenwood Press, 2003.
Majd, Hooman, The Ayatollahs’ Democracy: An Iranian Challenge,
New York: W. W. Norton & Co., 2010.
Moghadam, Valentine M., “Democratization and women’s political
leadership in North Africa,” Journal of International Affairs vol.
68, no. 1 (2014), 59–78.
461
Monshipouri, Mahmood, Democratic Uprisings in the New Middle
East: Youth, Technology, Human Rights, and US Foreign Policy,
Boulder, CO: Paradigm Publishers, 2014.
Shebata, Dina, “e fall of the Pharaoh: How Hosni Mubarak’s reign
came to an end,” Foreign Affairs vol. 90, no. 3 (2011), 26–32.
Wright, Robin, Rock the Casbah: Rage and Rebellion Across the
Islamic World, New York: Simon & Suster, 2012.
462
14
Rights, Refugees, and the Case of
Syria
What do human rights offer?
Kathleen Hamill
Whether in camps or in urban areas, Syrian refugees in the region are steadily losing
hope and becoming more desperate each day. Access to food, shelter, education,
healthcare, and livelihoods are unreliable and uncertain. Abject poverty is becoming the
norm, and refugees are becoming prisoners of their own fate. What we need is for
refugees to be able to live and work in a decent environment. Children need to go to
school. We need hope and a plan for the future. Syrian refugees need to be able to realize
their human rights.
— Maha Kaaa, Syrian Refugee Response Coordinator, International Labor
Organization, October 20151
463
Introduction
e war in Syria has created one of the worst humanitarian and
refugee crises in recent history, with far-reaing consequences for
human security, economic development, public health, ild
protection, and sheer survival, both in the Middle East and beyond.2
By the end of 2015, over 6.5 million Syrians were internally
displaced, and more than 13.5 million people were in need of
humanitarian assistance inside Syria.3 e crisis has reverberated far
beyond Syria’s borders, impacting Europe, the Americas, and the
wider Middle East. Fierce debates continue to rage over host
countries’ refugee and immigration policies, as well as human rights
and humanitarian protections.
e refugee crisis has been most acute for Syria’s neighbors—
Lebanon, Jordan, and Turkey—where more than 90 percent of the
refugees have fled, but where international legal standards for
refugee protection do not necessarily apply to displaced Syrians.4 By
2016, nearly 4.2 million Syrians were seeking refuge in these three
countries; almost half a million Syrians had fled into Europe.5 Given
the prolonged nature of the crisis, the limits of humanitarian aid and
the prevailing conditions in neighboring countries, the vast majority
of Syrian refugees have not had adequate means or resources to
access appropriate education, shelter, food, healthcare, water or
sanitation in any long-term, sustainable way.
In this context, what do human rights offer: implementable
minimum standards and tangible protections, or just illusory
rhetoric? It is clear that human rights concerns are at stake, whether
Syrian refugees are seeking to cross national borders, sheltering
inside neighboring countries, or in transit ba to Syria or to another
country. is apter will argue that human rights remain largely
464
unfulfilled both for reasons of internal inconsistencies and for
reasons of national self-interest. Yet domestic and international
human rights commitments offer the most realistic path toward
taking into account the interests of states and Syrian refugees in
addressing an enormous humanitarian crisis that can no longer
simply be wished away.
465
Before entry: contested status, contested
legal frameworks
One of the vexing problems that has undergirded the refugee crisis is
that Syria’s closest neighbors had no applicable refugee and asylum
frameworks in place before 2011. is means they did not have
policies or procedures governing the entry, stay, and protection of
Syrian refugees and asylum seekers, instead reserving the right to
treat displaced Syrians as irregular or illegal migrants. As a result,
the terms ‘refugee’ and ‘asylum seeker’ have remained very mu
contested with respect to Syrians and their legal status in Jordan,
Lebanon, and Turkey. From the outset, neighboring governments did
not conceive of incoming Syrians as refugees per se. Instead, they
were guests, migrants, displaced civilians, or, eventually—in the case
of Turkey—persons under temporary protection. is reflected not
only the ongoing absence of applicable domestic refugee
frameworks, but also a set of misplaced assumptions that the conflict
would end quily and that Syrians would soon return home.
As in other situations of mass population movements, the influx
of Syrians into Jordan, Lebanon, and Turkey has not fit neatly into
narrow legal categories especially given the la of applicable
refugee frameworks under domestic law. e accepted definition of a
refugee derives from the 1951 Refugee Convention. It encompasses
people fleeing from individualized persecution in their home
countries, or countries of habitual residence, on account of one of
five protected grounds: race, religion, nationality, political opinion,
or membership in a particular social group.6 As su, the 1951
Convention definition of a refugee neither explicitly includes
protection for civilians fleeing war——as is the case for many Syrians
466
—nor explicitly guarantees the right of entry or access to territory
across borders, even to people seeking refuge from persecution.7
is Convention definition is relevant because it provides an
authoritative point of reference and the baseline legal understanding
of a refugee under international law, regardless of whi states have
signed onto the Convention. e definition of a refugee, however,
has been interpreted more broadly by the United Nations Refugee
Agency (UNHCR) and by a number of states. As a result, the
application of the term ‘refugee’ has been disputed in the Syrian
context on multiple levels. Unlike the 1951 Convention refugee
definition, UNHCR has explicitly recognized war and violent conflict
as causal factors driving people to seek refugee status and protection
across borders.8 In neighboring countries, Lebanon, Jordan, and
Turkey, the U.N. Refugee Agency has extended blanket recognition
to displaced Syrians as refugees, doing so on a prima facie basis by
virtue of their nationality. It is important to note that neighboring
host governments have not officially registered displaced Syrians as
refugees under their domestic legal systems. Official UNHCR and
government positions have diverged on this maer, yet millions of
displaced Syrian civilians have sought protection and refuge in the
neighboring countries of Lebanon, Turkey and Jordan.
Key questions and debates
In response to the evolving situation and shiing refugee flows,
policy debates have emerged around contentious issues related to
protection, survival, development, and livelihood strategies for
Syrian refugees. ese debates have focused on appropriate
responses to the refugee crisis by governments, U.N. agencies, NGOs,
and refugees. Neighboring governments have had to make a series of
rapid judgment calls on myriad issues requiring short-and long-term
planning. ese government responses, in turn, have been informed
467
by competing interests and by conflicting interpretations of
applicable human rights standards. Among these have been
decisions about open-or closed-door policies, camps or no camps,
registration or no registration, integration or no integration, freedom
of movement or no freedom of movement, and access or no access to
public education, healthcare, and the formal labor market.
Likewise, U.N. agencies and NGOs have grappled with similar
questions and decisions. Should they defer to host governments on
controversial human rights issues or push ba against host
governments when human rights standards are compromised?
Should they provide short-term aid and longer-term development
assistance simultaneously. If so, then how? In addition, U.N. agencies
and NGOs have sought to assess the vulnerability of Syrian refugee
communities and individuals in order to ensure that local and
international humanitarian assistance reaes those who need it
most. ese agencies and organizations have engaged in continuous
dialogue about how to allocate limited resources in the most
effective, efficient, and sustainable ways. Yet there have been no easy
answers.
While host governments, U.N. agencies, and NGOs have debated
appropriate responses, refugees have remained at the center of the
crisis, le to make stark decisions about their own survival and the
well-being of their families and communities. ey have wondered
what the future will hold if they stay in host countries, return home
to Syria, or move somewhere else altogether. ey have weighed the
pros and cons of living inside or outside of refugee camps, and they
have asked themselves about the possibility of surviving on
humanitarian aid alone, or of working to supplement aid by seeking
employment in the formal or informal sectors. ey have pondered
the impact and financial trade-offs of their ildren aending sool
versus working to help support the family or geing married at a
young age.9 ese and countless other dilemmas have become
critical as so many lives have been upended and so mu human
468
insecurity and uncertainty has prevailed. Amid multifaceted and
intertwining debates about these questions, human rights standards
offer, if not a complete solution, a framework for thinking about
refugee protection and for individual agency, even as the responses
of governments, NGOs, U.N. agencies, and refugees remain
contested and inconsistent in practice.
Rights, reliance, and self-reliance
With their personal security and human rights severely
compromised, Syrian refugees have straddled an existential divide,
relying for survival on their own resilience and tenacity while also
relying on the promise of protection from U.N. agencies, foreign
governments, NGOs, relief organizations, and host communities.
One snapshot of two-year-old Alan Kurdi’s lifeless body washed up
on a Turkish bea in September 2015 was enough to show the uer
desperation of the Syrian refugee crisis to the world. With su grim
reality es, it has become obvious that Syrians cannot easily
realize their human rights. Syrians have not only suffered the
compounded impact of years of political upheaval, violence, and
persecution, they have also endured threats related to displacement,
la of access to basic necessities, and tenuous legal status oen
exacerbated by unmet requirements, insufficient documentation, and
expired permissions, leading to the prospect of detention,
deportation, and also death.
On paper, Syrian civilians seeking refuge in neighboring countries
have numerous human rights, beginning with the customary
international legal principle of non-refoulement, whi protects
refugees from being sent ba into situations where their lives or
freedom would be at risk whether through torture or otherwise.10
Beyond non-refoulement, numerous other protections are set forth in
multilateral treaties, domestic legislation, national constitutions, and
469
memoranda of understanding (MOUs) between host governments
and U.N. agencies.11 In addition, there are refugee-specific rights as
well as more general rights that apply to all human beings present
within a state’s jurisdiction, su as the right to education, to
freedom of movement, to work, and to an adequate standard of
living.
Refugees do not automatically have all of the same rights afforded
to citizens, su as the right to vote. Nevertheless, they can make
claims to human rights on the basis of human dignity, host country
commitments, and their physical presence within host state
jurisdiction.12 According to international law, the 1951 Refugee
Convention does not apply to Syrian refugees in Lebanon, Jordan,
and Turkey, but non-refoulement does apply. Also applicable to
displaced Syrians are the core U.N. human rights treaties, including
the Convention on the Rights of the Child, the Convention Against
Torture, the Convention on Civil and Political Rights, and the
Covenant on Social, Economic and Cultural Rights—all of whi
Syria’s neighbors have ratified. International labor law also offers
protection to Syrian refugees under the auspices of relevant
International Labor Organization (ILO) treaties su as the
Convention on the Worst Forms of Child Labor (ILO No. 182) and
the Convention on Minimum Age for Work (ILO No. 138).
At the national level, the legal guarantees—again, on paper—that
apply to displaced Syrians vary by country. Constitutional
provisions in host states, for example, make loy commitments to
respect the rights and dignity of nationals and non-nationals alike.13
MOUs, meanwhile, commit states to providing refugees with
protection in cooperation with UNHCR. Relevant domestic
legislation includes Turkey’s 2013 Law on Foreigners and
International Protection, Jordan’s 1973 Residency and Foreigners
Law, and Lebanon’s 1962 Law of Entry and Stay. But Syrians in
transit between different localities and countries confront legal and
practical barriers that have affected the realization of their rights.
470
Hence, the application of human rights standards to the predicament
of Syrian refugees has been riddled with ambiguity and complexity.
It is strikingly clear that refugees’ rights on paper have oen been
unfulfilled in practice. Before approaing more detailed questions of
application, however, it is expedient to examine several key policy
debates that have embroiled the rights of Syrian refugees.
Right to access territory
A core controversy over the appropriate policy response to the crisis
has related to access to territory. Do Syrians have the right to seek
refuge in neighboring countries on a short-term, long-term, or
permanent basis? Does it violate international law for neighboring
governments to blo them from entry and force them ba into
Syria? When displaced Syrians have managed to seek refuge across
borders, neighboring governments and host communities have
generally withheld official legal recognition of their status as
refugees. As a result, geographic location (in Lebanon, Turkey, or
Jordan) has been a significant factor in restricting the viability and
realization of their human rights. To what extent was Jordan’s
Minister of Labor, Dr. Nidal Katamine, correct when he said,
“Human rights should be based on needs and not on geographic
location”?14
e debate about this question within the international
community includes conflicting perspectives on the right to seek
asylum, authority over sovereign borders, and the principle of non-
refoulement. For the first several years of the refugee crisis, Syria’s
neighbors largely maintained open-door entry policies. However,
neighboring governments have since implemented inconsistent
policies, discriminating in particular against Palestinian refugees
from Syria.15 On one hand, officials have referred to their ‘open’ or
‘managed’ border policies. At the same time, neighboring
471
governments have restricted entry at official border crossings and
they have oen bloed Syrians’ access altogether,16 using physical
barriers, administrative roadblos, and the outright exclusion of
Palestinian refugees from Syria by the governments of Jordan and
Lebanon.17
Although the Universal Declaration of Human Rights sets out the
right of every person “to seek and to enjoy in other countries asylum
from persecution” (Article 14),18 this right actually has no
corresponding legal guarantees under international law for civilian
victims of war or persecution. For example, even the 1951 Refugee
Convention and its 1967 Protocol do “not impose any obligation to
allow refugees to enter and reside in the territory of a state party.”19
Lebanon and Jordan are not signatories to the treaty in any case, and
are not legally obliged by the 1951 Convention to open their doors to
Syrian refugees.20 Arguably, their open-door policies early in the
crisis reflected a combined sense of moral responsibility, self-interest,
and maer-of-fact convenience when the influx was still
manageable and violence had not yet reaed border areas. But
Turkish, Jordanian, and Lebanese border policies have shied
considerably since mid-2014, with doors increasingly closed due to
security concerns, limited resources, insufficient infrastructure to
support refugees, and the perception of adverse pressure on host
communities and local economies.21
Access to territory: the case of Lebanon
e Lebanese government implemented a new border policy with
stricter entry requirements for Syrians starting in 2015.22 As directed
by Lebanon’s Cabinet of Ministers, this entry policy required all
Syrians to provide clarification of their entry status and
documentation to prove it. ose wishing to enter Lebanon had to
demonstrate that they qualified for one of several categories, ranging
472
from tourism to authorized employment to urgent medical needs.
ere was no category, however, for refugee or asylum seeker, but
only for “displaced” Syrians who would be permied to cross the
border only in the very narrow exception of “extreme humanitarian”
cases.
Lebanon’s Ministry of Social Affairs retained the power to
personally review these exceptional and extreme humanitarian cases
on an ad hoc basis to determine compliance with one of the
government’s four entry criteria for displaced Syrians: (1)
unaccompanied or separated ildren under 16 years with parents or
legal guardians in Lebanon; (2) individuals with disabilities
dependent upon family or relatives in Lebanon; (3) individuals
needing life-saving medical treatment not available in Syria; and (4)
individuals pursuing reselement or transitioning through Lebanon
to a third country with proof of travel (e.g. airline tiets).23
Lebanon’s border policy led to sharp public disagreements
between the government and U.N. agencies about the right to seek
refuge on Lebanese territory and who should qualify for protection.
Prior to Lebanon’s tighter border regulations, UNHCR registered all
Syrians seeking protected refugee status on a prima facie basis as
part of a broad group designation.24 is meant that Syrians would
qualify as refugees with UNHCR without going through an
individual interview or refugee status determination procedure with
the government or with UNHCR. As part of Lebanon’s revised
border policy, as of 2015 Syrians were no longer eligible for UNHCR
registration on a prima facie basis. e government border policy
barred UNHCR from registering any incoming Syrians as refugees in
Lebanon, and it required any outgoing Syrians to automatically
forfeit their UNHCR refugee status. No longer would Syrians be
allowed to re-enter Lebanon under the auspices of their previous
UNHCR-recognized refugee status, although the Lebanese
government had never recognized displaced Syrians as refugees
under domestic law anyway. But the revised policy and
473
corresponding border regulations marked a decisive effort to reduce
the overall number of Syrians in Lebanon and to bring cross border
transit of displaced Syrians to a halt. Presumably, those who faced
genuine risk in Syria, would not dare to cross ba and forth across
the border.
For those exceptional cases among the new arrivals from Syria,
the Lebanese government required UNHCR to petition the Minister
of Social Affairs for explicit approval to permit registration of
individual refugees on a case-by-case basis only. In April 2015, in
fact, Lebanon’s Minister of Social Affairs directed UNHCR to
deregister all Syrian refugees who had entered Lebanon aer
January 5, 2015 but before strict implementation of the new
regulations had begun, a move that affected 2,600 registered Syrian
refugees and their families.25 Lebanon’s new rules denied these
refugees UNHCR-registered status and also bloed access to
territory for Syrian refugees more broadly.26
Local NGOs, utilizing human rights arguments, also weighed in
on the debate about Lebanon’s border and entry policies. Beirut-
based FrontiersRuwad Association, for example, consistently
defended Syrian refugees and their right to seek asylum on the basis
of human rights norms. It faulted the government for rejecting
Syrian refugees and asylum seekers at the border and for denying
them entry or re-entry to Lebanon. Not surprisingly, FrontiersRuwad
opposed the Lebanese government’s position and articulated
objections in the NGO’s Mar 2015 Universal Periodic Review
stakeholder submission to the U.N. Human Rights Council.27 In this
submission, FrontiersRuwad decried fundamental human rights
violations of Syrian refugees and asylum seekers, “most notably their
right to seek asylum, and to liberty and security,” occurring in
Lebanon at the level of legislation, regulations, policies and
practices.28 FrontiersRuwad denounced the restrictive admission
criteria for Syrian nationals, calling on the Lebanese government to
474
grant displaced Syrians legal residency status on the basis of their
valid UNHCR registration.
FrontiersRuwad cited the customary international legal norm of
non-refoulement obliging Lebanon not to force individuals ba into
Syria if their lives or freedom would be at risk. At a minimum,
FrontiersRuwad insisted that non-refoulement would require
Lebanon to allow Syrians to enter the country in order to seek refuge
from persecution. Meanwhile, this permission to enter would at least
allow the government or UNHCR to investigate whether individuals
fleeing Syria needed protection. However, Lebanon has largely
ignored this obligation since January 2015.
All of this has raised a host of human rights questions related to
the right of entry. Opinions diverge about whether Syrian refugees
have the legal right to enter and to remain in neighboring countries
in their flight from violence and persecution. Should displaced
Syrians have the unqualified right to seek and enjoy asylum, or do
sovereign states have absolute authority to restrict entry into their
own territory? is debate became increasingly vivid as Syrian
refugees pressed beyond neighboring countries and into Europe.
Although it is beyond the scope of this apter, the European
dimension to the Syrian refugee crisis also speaks to the ability of
refugees to take maers into their own hands and exercise their own
agency in an effort to claim their human rights by seeking asylum
outside of the region.
475
Aer entry: respect for refugee rights
Policy debates also have revolved around treatment of displaced
Syrians once they enter neighboring countries. On many levels,
these debates have concerned access to the means for basic survival
and protection and the realization of subsistence rights su as
shelter, food, water, clothing, and sanitation. How and to what
extent should provisions be made available to refugees in order to
meet their basic needs? Debates also concern access to public
services, including education and healthcare, as well as access to the
courts and to social services su as ild protection systems. It is a
contested maer as to how refugees should avail themselves of these
rights in practice and what public services should be available to
them, at what cost, and by whom. In addition, host governments,
U.N. agencies and NGOs have varying approaes to the provision of
humanitarian aid and services, whether in the form of in-kind
benefits, vouers, cash assistance, or self-reliance. ese approaes
inevitably have significant impacts on the realization of refugees’
human rights and their ability to live in dignity and on their own
terms under displaced circumstances.
Camps or self-settlement?
Governments and U.N. agencies have put forward various proposals
and criticisms about where refugees should live and how collective
humanitarian responses should be organized.29 What bearing do
refugee camps have on the broader realization of refugees’ rights
including freedom of movement and right to work? What does it
mean for Syrian refugees to realize the right to an adequate standard
476
of living and to exercise their housing rights within or outside of
refugee camps? Some government officials and U.N. or NGO
representatives have supported the position that Syrian refugees are
beer off living in official camps, su as Nimis and Karkamis in
Turkey. Others have contended that they have the right to move
freely outside of refugee camps and self-sele in rural, village, or
urban seings, as the vast majority of Syrian refugees already have
across the region. Outside of camps, refugees have typically paid
rent, in cash or on credit, while others have sought shelter in
unfinished buildings, on unclaimed land, or in informal tented
selements, sometimes exanging their labor for temporary plots of
space. Palestinian refugees from Syria have tended to gravitate
toward pre-existing Palestinian camps or gatherings, oen forced to
live in the shadows because of their la of legal status in
neighboring host countries.
Regardless of their exact location, self-seled Syrian refugees have
encountered sub-standard and overcrowded dwellings with very
lile security of tenure and unsanitary surrounding conditions. is
is especially true in Lebanon’s roughly 1,500 informal tented
selements, where the government—as a maer of policy—has not
developed adequate municipal infrastructure to extend sufficient
pipes, sewage, sanitation facilities, and drainage systems to areas
densely populated by refugees. Refugees living outside of camps
have faced the prospect of moving from place to place on a continual
basis because of rising rent prices and forced evictions. Yet, oen
they still prefer to self-sele in urban or rural areas because life in
refugee camps is not necessarily sustainable or bearable, especially
when remote camp locations can diminish prospects of finding work
and generating income. Given the allenges of self-selement,
should host governments and aid agencies continue to operate and
construct refugee camps? Encampment has represented a significant
allenge to the protection of basic human rights of Syrian refugees
in neighboring countries, especially freedom of movement. Yet
477
official camps have also provided an organized and dignified way for
many refugees to realize their rights, particularly the rights to
housing and to an adequate standard of living. Open questions
persist about encampment policies and how host governments, U.N.
agencies and NGOs should prioritize certain human rights above
others.
National camp policies for Syrian refugees have differed in Jordan,
Lebanon, and Turkey. In all three countries, refugees have
predominantly self-seled, but official refugee camps still have been
home to significant numbers of refugees in Turkey and Jordan. In
Lebanon, the government has opposed the building of official camps
from the outset of the crisis and has also espoused a policy of non-
integration of Syrian refugees in the country. A brief examination of
the three neighboring countries’ camp policies serves to
contextualize the human rights questions at issue.
Jordan’s camp policies
According to a December 2015 UNHCR-World Bank study, “Jordan
opted early on to let refugees sele in urban areas and only later
decided to establish camps when the number of refugee arrivals
grew sharply.”30 e government held off on establishing camps until
2013, aer pressure had mounted from northern tribal leaders who
insisted on camps in response to the growing influx. Jordan’s two
primary official camps, Zaatari and Azraq, have been managed and
administered by UNHCR, with operational support from partner
NGOs and U.N. agencies, as well as Jordanian police forces.31 Until
2015, Syrians were able to ‘bail out’ of the camps provided they
obtained sponsorship from a Jordanian national. As a result, the
camps largely served as an initial entry point, and indeed, the
Jordanian government’s 2015 urban verification process indicated
that Syrians generally preferred to live outside of camp seings.
478
However, government policy in 2015 became more restrictive, with
‘escape’ from camps through the sponsorship system becoming a
formidable allenge. is raised questions about whether Jordan
was essentially warehousing a significant number of Syrians in
refugee camps and restricting their freedom of movement in the
name of containing security threats while effectively denying these
refugees their human rights.
Turkey’s shiing policy: costly camps to self-settlement
Across Syria’s northeastern border, Turkey has constructed, funded,
and operated 25 government-run camps housing approximately
280,000 people, comprising roughly 10-15 percent of the country’s
total Syrian refugee population, as of early 2016.32 e camps were
built in the three provinces contiguous to Syria, where most of
Turkey’s 2 million Syrian refugees entered into the country.
Construction of the camps was largely complete by the end of 2012;
but, aer initial enthusiasm for the establishment of camps, with
operational costs mounting, the Turkish government shied course.
By rough estimates, initial costs amounted to nearly $10 million for
the government to construct ea camp, followed by over $2 million
a month to keep ea camp running.33 With the Turkish government
having spent an estimated $6-8 billion on the refugee crisis by late
2015, the cost factor had a direct impact on policy decisions.34 As
Turkish political scientist, Cigdem Benam, explained,
Turkish camp policy was built on a number of inaccurate assumptions. e government
clearly assumed that Assad would be gone within a short period of time (3–6 months)
aer the uprising in Syria started … and the government wanted to ensure that its
Syrian “guests” lived comfortably in Turkish camps and had good memories of Turkey
during their time in the southern part of the county. ey even furnished camp
dwellings with luxurious flat screen TVs. e camps, of course, were expensive to build
and maintain. And once the government realized that it was not going to be just a
short-term crisis they stopped building camps.35
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Gradually the Turkish government shied policy, guided by its
system of Temporary Protection, through whi Syrian refugees
were allowed to self-sele and live interspersed in communities
throughout the country.36
Lebanon’s ‘no camps’ policy
By contrast, the Lebanese government established a policy against
camps from the outset of the refugee crisis. Since then, the prospect
of building official refugee camps has been highly contested among
cabinet ministers and U.N. agencies. In 2013–14, Minister of Social
Affairs, Rashid Derbas, actively lobbied for the construction of
refugee camps. He put forward a proposal for two camps—one in the
north and one in the east—to be built in the no-man’s-land between
Syria and Lebanon. is proposal won support from the Ministry of
the Interior, but it was met with opposition from others who
steadfastly supported Lebanon’s official “no camp” policy.37
roughout this policy debate, Minister of Social Affairs, Derbas,
has argued that Lebanon should deal with the question of refugee
camps from a humanitarian perspective, not a political one. Official
refugee camps, according to Derbas, would ease tension between
Lebanese and Syrians and provide refugees with decent and humane
conditions—especially if prefabricated houses were used instead of
tents. Besides, argued the Minister of Social Affairs to his fellow
Lebanese cabinet ministers, eventually the camps would serve as
border stations for refugees returning to their hometowns in Syria.
Derbas also added a security-based component to his argument,
contending “the (unofficial) presence of 1,400+ camps without any
kind of security surveillance is a danger in and of itself.”38 Derbas
contended that the Lebanese government had neglected to address
the issue due to expectations that only a few thousand Syrian
refugees would be displaced into Lebanon for a few months. is
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was, as it turned out, a vast underestimate: by the year 2016, the
number of Syrian refugees in Lebanon comprised one quarter of the
country’s population.
481
In camps or self-settled, rights remain
essential
Realizing rights for refugee communities goes well beyond the
sear for adequate living conditions and accommodations. It also
entails the quest for freedom of movement, access to education,
healthcare, and livelihoods, and protection from exploitation.
UNHCR’s 2014 Policy on Alternatives to Camps built further on the
Refugee Agency’s 2009 Policy on Urban Refugees.39 In both policy
statements, UNHCR has embraced a “rights-based approa” to
refugee assistance, explicitly moving away from camps as the
assumed foundation of refugee policy.40 Under the 2014 Policy on
Alternatives to Camps, notes legal solar, Miael Kagan, “Refugees
are now to be reconceived as people with autonomy. e focus is to
be on their rights, their legal status, their ability to support
themselves and to raise their families in dignity.”41 Indeed, as the
2014 policy explicitly states,
From the perspective of refugees, alternatives to camps means being able to exercise
rights and freedoms, make meaningful oices regarding their lives and have the
possibility to live with greater dignity, independence and normality as members of
communities.42
e question of how neighboring countries, aid agencies, host
communities, and Syrian refugees can seek to realize these human
rights guides the remainder of this apter.
Freedom of movement
Under Article 13 of the Universal Declaration of Human Rights and
Article 12 of the International Covenant on Civil and Political
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Rights, anyone lawfully present in a country has the right to
freedom of movement. Only in exceptional circumstances—not
generally present in the case of Syrian refugees—can governments
enact restrictions on movement, whi must be provided by law and
must be necessary to protect national security, public order, public
health, morals, or the rights and freedoms of others.43 As the U.N.
Human Rights Commiee has noted, in order to be consistent with
international human rights law, su restrictive measures on
freedom of movement must be proportionate to the narrow objective
or purpose of the restrictions without casting an overly wide net
over a geographic area, duration, or number of people.44 In addition,
discrimination on the basis of nationality is usually inconsistent with
human rights protections on the right to freedom of movement.
While there have been restrictions on mobility in and out of
camps in Jordan and Turkey, Syrian refugees have generally enjoyed
freedom of mobility within urban and rural areas of neighboring
countries. In Lebanon, however, dozens of municipalities have
imposed curfews for Syrian refugees.45 Ostensibly these curfews are
meant to ensure public order and community safety, but effectively
they serve to discriminate against Syrians in Lebanon on the basis of
their nationality. In additions to the nighime curfews, Syrians in
Lebanon have faced additional restrictions on their freedom of
movement. Many Syrians, especially those with expired residency
permits, have lived in constant apprehension of being stopped by the
police at epoints or in other public places. is has compounded
an already precarious situation by hampering their ability to seek
work or humanitarian assistance, oen meaning that Syrian refugees
cannot pay their rent or afford other basic necessities. In many
regards, freedom of movement is critical to other concerns about
refugees’ human rights and overall policies around integration (or
non-integration) of Syrian refugees. is entails recognizing
refugees’ legal right to work—or not—whi has been under active
483
scrutiny and consideration at various levels in neighboring
countries.
Right to work
Distinct legal and administrative barriers, including work permit
requirements, residency requirements, and border entry
requirements, have deterred Syrian refugees from exercising the
right to work, in both the informal and formal sectors, in
neighboring host countries. Specific parameters have varied in
Jordan, Lebanon, and Turkey. But these barriers have had significant
bearing upon Syrian refugees’ access to livelihoods and their ability
to provide for themselves and their families.
Because the 1951 Refugee Convention and its 1967 Protocol do not
apply to Syrian refugees in Jordan, Turkey, and Lebanon, the right to
work is not ensured to them under international refugee law. e
corresponding la of formal asylum or refugee frameworks in
Jordan, Lebanon, and Turkey has compounded the allenges
already facing refugees in exercising this right, especially since none
of the three neighboring governments under discussion have
officially recognized Syrians as refugees under domestic law.
In Jordan, work permit requirements have been difficult for most
Syrian refugees to meet, and they require considerable
documentation.46 Eligibility for work permits also has hinged on the
point of entry into Jordan, excluding most Syrian refugees from
eligibility depending on whi border crossing they traversed.
Meanwhile, employing Syrian refugees without work permits in
Jordan has led to fines for employers, with strict consequences for
the workers, who have faced the prospect of being sent ba to a
refugee camp, deported from the country and then barred from re-
entry. Additionally, the Labor Ministry has maintained a list of
‘closed’ professions for whi Syrian refugees are not eligible. e
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Ministry also has maintained quotas based on economic sectors for
migrants, including Syrians, so that work opportunities are
guaranteed to local communities. Fewer than 6,000 Syrians received
formal authorization to work in Jordan in 2014, but in the meantime
official measures have been under discussion to facilitate Syrian
refugees’ lawful access to the labor force, whether in camps,
qualified industrial zones, or host communities. Assuming that
Syrian refugees will eventually be allowed to work in certain zones
and sectors, it remains to be seen if the Jordanian government will
also allow these displaced Syrians to maintain their status as
UNHCR-registered refugees.
Turkey’s legal parameters for work permits have differed slightly
from Jordan. e Turkish government’s 2013 Law on Foreigners and
International Protection recognized Syrians’ need for protection—but
not their full refugee status. In 2015, members of the Turkish
Parliament draed bylaws and implementing legislation specifically
around the right to work. ese legal measures pinpointed certain
sectors and geographic zones for whi Syrian refugees would be
allowed to apply for work permits. is implementing legislation
was slated to pass through the Turkish Parliament by the end of
2015, but turbulent political dynamics led Turkey’s Minister of Labor
to announce instead that the government would not “give refugees
the right to work.”47 In 2016, however, the Turkish Council of
Ministers, did adopt regulations authorizing work permits for Syrian
refugees, representing a major development in the region.48
In Lebanon, displaced Syrians have been discouraged from
working in the formal and informal sectors even more so than in
Turkey and Jordan. According to Ministry of Labor data, only about
1,500 work permits were issued to Syrians in 2014.49 Since early 2015
the Lebanese government obliged UNHCR-registered refugees to
sign a notarized pledge not to work. Refugees were prohibited from
renewing their annual residence permits, authorizing their legal stay
in Lebanon, without signing this ‘no work’ pledge, among other
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requirements, in addition to paying a $200 yearly residency fee.50
According to a 2014 Ministry of Labor decree, Syrians were eligible
to work only in construction, agriculture, and cleaning sectors. Even
those Syrians who managed to find employment in these areas also
needed to have an official Lebanese sponsor to serve as their legal
guarantor in the country. is situation was compounded in 2015 by
Lebanon’s updated border requirements, as explained above, whi
have since prohibited ‘displaced’ Syrians from traveling ba and
forth across the border and have made it difficult for them to enter
Lebanon as migrant workers without ample documentation and
advance proof of sponsorship.
Su policies are understandable when one considers that the host
country governments are also concerned about the human rights of
their own citizens. Lebanese citizens, facing competition from
informal Syrian workers, have largely perceived Lebanon’s ‘no
work’ pledge as a positive policy decision.51 Key questions around
the right to work, meanwhile, have hinged on the fairness and
practicality of opening formal labor markets to Syrian refugees and
on proving the net positive effects of opening labor markets in host
countries. In this context, Western governments have pushed for
right-to-work policies for refugees, seeking to contain the refugee
crisis within the region. In practice, the situation has raised many
questions about whether Syrians have the legal right to work in
neighboring host countries, what law applies in this regard, and
whether Syrians should be restricted to work in specific zones and
sectors. e prospect of Syrian refugees gaining access to formal
labor markets in neighboring countries has raised hope for some and
apprehension for others. Neighboring host communities already
employ significant numbers of migrant workers from Egypt and
Southeast Asia, whose fate is unclear in this equation. It is also
unclear whether displaced Syrians will have to forego their status as
UNHCR-registered refugees in Jordan and Lebanon—or their status
486
under temporary protection in Turkey—if they obtain official
permission to work.
Regardless of these variables, the right to work is a contested and
contentious one, and one that has been under active debate and
consideration at the local level. It represents a potential source of
self-reliance for refugees and relative independence from insufficient
humanitarian aid and the limitations of the U.N. surrogate state. But
realizing the right to work for displaced Syrians across the board in
practice inevitably requires a significant amount of legal, political,
bureaucratic, and diplomatic maneuvering. Trade-offs are necessary
to benefit host communities, and negotiations will have to be guided
by a deep understanding of the competing interests and rights at
stake.
Economic, social, and cultural rights: food, health, and
education
Under relevant international standards and applicable treaties, states
have a duty to respect, protect, and fulfill basic human rights and to
allow for an adequate standard of living for everyone within a state
party’s jurisdiction. ese rights pertain to nationals and non-
nationals alike, including refugees, migrants, and other vulnerable or
marginalized groups. e rights to food, water, shelter and health are
set forth in the Covenant on Economic, Social, and Cultural Rights
(ESC Covenant) and in the Convention on the Rights of the Child
(CRC). Jordan, Lebanon, and Turkey have ea signed these treaties
without significant reservations. e binding nature of these rights,
however, is not fixed and is subject to progressive implementation.
In addition Article 2(3) of the ESC Covenant, specifies that
“developing countries, with due regard to human rights and their
national economy, may determine to what extent they would
487
guarantee the economic rights recognized in the present covenant to
non-nationals.”
e U.N. Commiee on Economic, Social and Cultural Rights
(ESC Commiee) has nevertheless identified a minimum core
content of fundamental rights as virtual obligations: minimum
essential levels of foodstuffs, primary healthcare, basic shelter and
housing, and the most basic forms of education.52 Regarding
refugees and situations of humanitarian emergency, the ESC
Commiee has clarified that all states’ parties have a joint and
individual responsibility to “cooperate in providing disaster relief
and humanitarian assistance in times of emergency, including
assistance to refugees.”53
The right to food
e ESC Covenant recognizes the right to food in Article 11
including “freedom from hunger and malnutrition.”54 Yet violations
of the right to food occur among refugees when a state fails to
ensure freedom from hunger or actively blos access to food. For
Syrian refugees, the dollar amounts, eligibility, and frequency of
distribution of World Food Programme (WFP) vouers—the
primary source of ‘income’ for many refugee families—have shied
over time. Vulnerability assessments have indicated that WFP food
assistance has been scaled ba, leaving many Syrian refugees on the
cusp of abject poverty and extreme food insecurity.55 Among Syrian
refugees in Jordan, food constituted an average of 51 percent of
household expenditures according to Jordan’s 2015 Comprehensive
Food Security Monitoring Exercise.56 Syrian refugees in all three
primary host countries have reported self-monitored food rationing
su as reducing food intake per meal, or eating one meal per day,
due to cost.57
488
The right to health
e ESC Covenant guarantees in Article 12 the “right of everyone to
the enjoyment of the highest aainable standard of physical and
mental health.”58 However, realization of the right to health and to
healthcare has been elusive for the vast majority of Syrian refugees.
Responsibility for the realization of refugees’ ESC rights may lie
with different actors simultaneously, including host states, U.N.
agencies and refugees themselves.
Syrian refugees’ healthcare needs have been steady and acute. In
contrast to the heavily subsidized healthcare system in Syria before
the war, most refugees in host countries found themselves at a loss
for how to sustain critical medical treatment and healthcare for
themselves and their families over any length of time.59 Medical care
has been a universal allenge for Syrian refugees regardless of the
condition: antenatal care, traumatic war injuries, communicable
diseases, ronic conditions, and cancer.
As with other refugee rights, host government policies on
healthcare differ. Lebanon’s mostly private healthcare system offers
public facilities. e Lebanon Crisis Response Plan 2015–16
identified healthcare as one of the most critical gaps in service
delivery among refugee communities: “Health centers are
overwhelmed by the increase in population … and persons displaced
from Syria increasingly need subsidization and support to access
basic healthcare.”60 In Jordan, more than half of the registered Syrian
refugee population has experienced high or severe vulnerability in
terms of access to healthcare.61 Jordan’s Ministry of Health,
according to the Jordan Response Plan (2016–18), predicted that the
direct financial cost of providing healthcare to Syrian refugees would
be roughly $67 million annually for the coming years. In Turkey,
Syrians under temporary protection have had the benefit of free
medical services, whi according to government officials has
489
amounted to 9 million medical consultations, 280,000 surgical
procedures, and 66,000 births since 2011.62
Yet Syrian refugees have encountered countless obstacles in
exercising the right to health in relation to the benmarks of
accessibility, availability, affordability, and quality. estions
abound as to whether Syrian refugees in neighboring countries
should have access to free or subsidized emergency medical
treatment, primary, secondary and tertiary healthcare. Public health
ministries and U.N. agencies have conducted vaccination campaigns
and have worked to contain outbreaks of contagious diseases,
particularly among ildren, su as measles, polio, and olera.
ey have aempted to counter outbreaks of Leishmaniasis, scabies,
and watery diarrhea as well as help to manage the symptoms of
ronic conditions su as cancer, leukemia, and hypertension.
In all three countries, realization of Syrian refugees’ right to
health depends on access to medical treatment, health clinics,
medication, and hospitals. Access can be a function of proximity,
local capacity, transportation, and quality. Public health clinics have
been expanded and NGO medical services have been ramped up, but
cost can still be a prohibitive factor for refugees. Access to
emergency care and primary care—among myriad other healthcare
services—all come at a price.
The right to education63
Human rights principles seek to ensure access to education for
refugee and non-refugee ildren alike. Although the 1951 Refugee
Convention provisions on education do not directly apply to Syrian
refugees in neighboring countries, the right to education is spelled
out explicitly in two core U.N. human rights treaties that do directly
apply: the ESC Covenant (Article 13) and the CRC (Articles 28 and
29). Both of these human rights treaties set forth the right to primary
490
education for all ildren within a state’s jurisdiction, without
discrimination, and regardless of legal status.64 e CRC in Article
22 goes a step further than the ESC Covenant with respect to
refugees, also calling on states to ensure special protection and
humanitarian assistance for refugee ildren or those seeking
refugee status—although granting states significant discretion in the
process.65
Despite policies making public education legally accessible for
Syrian refugees in all three countries regardless of their status,
practical barriers have remained.66 ese have included differences
in curriculum and language of instruction, discrimination and
bullying, transportation costs, la of adequate classroom space and
teaers, and la of familiarity with the registration process.
Dilemmas have also arisen with regard to certification and remedial
policies that restrict eligibility for any ild who has already missed
two or more years of formal education. Meanwhile, Ministries of
Education have facilitated refugees’ tenical eligibility for public
sools by waiving fees, taking measures to open the enrollment
process, and compelling local municipalities to comply. In addition,
governments have worked with U.N. agencies and NGOs to
introduce non-formal education options, offer double shis in
existing sools, construct new sools, hire new teaers, and
laun multiple ba-to-sool campaigns.
Yet aer years of crisis in the region, sool enrollment rates
among Syrian refugee ildren continue to fall severely short in
Jordan, Lebanon, and Turkey. is raises questions about what the
right to education means for Syrian refugees in practice. By UNHCR
estimates, over half of all sool-aged Syrian ildren in neighboring
countries were not enrolled in formal education programs in 2015.67
In Turkey, where language is an obstacle, less than 30 percent of
sool-aged refugee ildren (ages 5–17) in host communities had
enrolled in sool as of August 2015.68 By comparison, sool
enrollment rates in Turkey’s refugee camps reaed almost 90
491
percent by mid-2015. In Lebanon, sool enrollment rates for sool-
aged Syrian refugees have remained below 50 percent since 2011;
enrollment rates in Jordan have been relatively higher, reaing
closer to 80 percent by mid-2015 according to 3RP Country
Education Sector Dashboards. But virtually all sool-aged Syrian
refugees in Jordan—as well as in Turkey and Lebanon—have been at
high risk for non-aendance since the start of the conflict in Syria.
Significant dropout rates in all three countries have meant increasing
ineligibility for public education among Syrian refugee ildren;
they are generally disqualified from enrolment aer having missed
more than two consecutive years of sool. Remedial education
programs alone have not accelerated progress for the vast numbers
of refugee ildren who have fallen behind.
Wider barriers to education also exist in the form of financial
pressures, access to livelihoods, and ild labor. Human rights
principles seek to ensure access to education and also to protect
ildren from economic exploitation and to prevent them from
engaging in work that is harmful to their health, safety, or morals.
Legal standards to this effect have been agreed to by Syria’s
neighbors and are set out in the CRC, ILO Minimum Age
Convention, and the ILO Worst Forms of Child Labor Convention.
For Syrian refugee families, enrolling ildren in sool can mean
compromising income opportunities that would otherwise help meet
the family’s basic survival needs. Child labor rates in Jordan,
Lebanon, and Turkey have indicated that many refugee families
have been forced to prioritize work over education; in Jordan the
ILO has documented ild labor rates at 37 percent among Syrian
refugee ildren between the ages of nine and sixteen.69 Countless
numbers of Syrian ildren in Lebanon and Turkey have also worked
to support themselves and their families out of economic need while
foregoing their education in the process.
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The right to a nationality
Since the start of the crisis, more than 142,000 Syrian ildren have
been born to refugee families in exile. Beyond questions of access to
social services and livelihoods, this fact has raised human rights
concerns about how these ildren will claim another fundamental
right: the right to a nationality. According to Article 7 of the CRC,
every “ild shall be registered immediately aer birth and shall
have from birth the right to a name and to acquire a nationality.” e
process of official birth registration can be a daunting prospect for
refugees. But without birth registration and official documentation
of their nationality, Syrian refugees face a lifetime of allenges in
exercising their human rights, accessing public services, maintaining
their legal status, and moving freely from place to place.
UNHCR estimates that since the refugee crisis began, more than
70 percent of Syrian refugee births in Lebanon have not been
registered, and that this reflects the broader situation of newborn
refugees throughout the region.70 e pervasive la of birth
registration among ildren runs in parallel with an even broader
la of valid identity documents among Syrian refugee adults.71 In
their unexpectedly abrupt departures from Syria, many refugees le
behind national identity cards, marriage certificates, family books,
and passports. e allenge of renewing expired identity documents
also presents difficulties for most Syrian refugees.
When refugees cannot present required identity documents to
civil registry authorities, birth registration becomes virtually
impossible in most situations. is predicament may be exacerbated
by a la of familiarity with the registration process and
requirements, especially if a ild’s father is not present. Because
Syrian nationality is transferred only from the father, mothers on
their own oen struggle to register the births of their newborns.
Challenges in obtaining official birth certificates can translate
directly into statelessness.72 Without documentation to prove
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nationality, stateless Syrian ildren will inevitably face difficulties
in accessing healthcare and education, among other rights. ey will
face obstacles not only in exercising their freedom of movement, but
also in the right to return to Syria when the war ends. Syrian refugee
ildren who are listed in their parents’ family booklets will need
their own identity documentation when they turn fieen, but they
will not be able to go ba to Syria to obtain it and face difficulties
doing so in host countries.
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Conclusion
e longer-term outlook for Syrian refugees, in the context of their
inability to claim the full range of rights just discussed, is a lens on
the larger crisis. As the situation continues to intensify and becomes
increasingly complex, refugees are sometimes taking maers into
their own hands. In a fraction of cases, this means seeking asylum
outside of the region and beyond the boundaries of Lebanon, Turkey,
and Jordan. In other cases, this means staying in the region while
seeking human rights out of the ashes of human dignity.
It is now clear to the host governments, U.N. agencies, aid
organizations, and the international community that the Syrian
refugee crisis will persist, with no clear resolution and no immediate
answers on the horizon. Governments, U.N. agencies, NGOs, and
refugees that have continued to flee from Syria are forced to respond
to the crisis in whatever way they are able or willing. Despite the
desperation borne out of the situation, policies do not necessarily
reflect humanitarian or human rights considerations. estions,
including heartbreaking decisions about whether to flee or to remain
in a devastated country, and myriad other concerns and dilemmas
will arise, again and again, in response to the shiing, and at times
contradictory, policy positions in ea country.
e key debates concerning human rights will continue to focus
on access to territory, public services, and safe livelihoods. Given the
la of clearly applicable international standards, states, U.N.
agencies, and aid organizations will continue to look to one another
for guidance on how to proceed. Unfortunately, the complexity of
the Syrian refugee crisis will not diminish in the foreseeable future.
Answers will not suddenly emerge clearly, and outcomes will not
become more predictable. Yet, amidst the human tragedy, positive
495
work continues to be done—oen based on human rights standards
within legal frameworks.
estions will arise from the rubble of politics, policies, and
human life, as to whether hope remains for a beer future. In the
context of the Syrian refugee crisis, human rights norms and
standards are inadequate and insufficient. But they can and do offer
more than just the illusion of hope to refugees and their families. In
incremental ways, these standards and norms can provide a form of
rough scaffolding for individuals to utilize as bridges, or even as
tightropes. is can lead to the practical realization of human
dignity and to a minimum of decent treatment for Syrian refugees
who face innumerable dilemmas and allenges in neighboring
countries.
496
Notes
1 Interview in person with Maha Kaaa, ILO Syrian Refugee Response Coordinator for
Jordan, Beirut Lebanon, November 25, 2015.
2 For comparative data and statistics on recent humanitarian emergencies and protracted
refugee crises, see United Nations Refugee Agency information portal, available at:
hp://data.unhcr.org [accessed November 11, 2015].
3 United Nations Office for the Coordination of Humanitarian Affairs data, available at:
www.unoa.org/syria [accessed November 11, 2015].
4 e 1951 Refugee Convention and 1967 Protocol do not apply to displaced Syrians in
neighboring host states of Lebanon, Jordan and Turkey. is is because Lebanon and
Jordan have not ratified the treaty. And although Turkey has ratified the treaty, it filed a
significant reservation stating that it would not be held to convention standards with
respect to non-Europeans.
5 For breakdown of Syrian refugee population by host country, see U.N. Refugee Agency
information available at: hp://data.unhcr.org/syrianrefugees/regional.php [accessed
November 11, 2015].
6 e international legal definition of a refugee is “a person who owing to a well-founded
fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his nationality and
is unable or, owing to su fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his former
habitual residence as a result of su events, is unable or, owing to su fear, is
unwilling to return to it,” Convention Relating to the Status of Refugees, 189 UNTS
2545, done July 28, 1951, entered into force Apr. 22, 1954, supplemented by the Protocol
relating to the Status of Refugees, 606 UNTS 8791, done Jan. 31, 1967, entered into force
Oct. 24, 1967.
497
7 U.N. High Commissioner for Refugees (UNHCR), Handbook and Guidelines on
Procedures and Criteria for Determining Refugee Status under the 1951 Convention and
the 1967 Protocol Relating to the Status of Refugees, December 2011,
HCR/1P/4/ENG/REV. 3, p. 33 “War Refugees” Section, available at:
www.refworld.org/docid/4f33c8d92.html [accessed October 29, 2015].
8 e mandate of the United Nations High Commissioner for Refugees covers “all persons
outside their country of origin for reasons of feared persecution, conflict, generalized
violence, or other circumstances that have seriously disturbed public order and who, as
a result, require international protection.” U.N. High Commissioner for Refugees
(UNHCR), Note on the Mandate of the High Commissioner for Refugees and his Office,
October 2013, p. 3, available at: www.refworld.org/docid/5268c9474.html [accessed
November 14, 2015].
9 K. Hamill and S. Bartels, “Running Out of Time: Survival of Syrian Refugee Children in
Lebanon,” FXB/Harvard Report (2014), available at: hp://fxb.harvard.edu/fxb-report-
survival-syrian-refugee-ildren-lebanon/ [accessed October 31, 2015].
10 A. Farmer, “A Commentary on the Commiee on the Rights of the Child’s Definition of
Non-Refoulement for Children: Broad Protection for Fundamental Rights” (2011). Res
Gestae. Paper 8 hp://ir.lawnet.fordham.edu/res_gestae/8 [accessed September 4, 2016].
11 See 1998 MOU between UNHCR and Government of Jordan.
12 M.B. Dembour, “What Are Human Rights? Four Sools of ought,” Human Rights
Quarterly (2010), available at: hp://muse.jhu.edu/login?
type=summary&url=/journals/human_rights_quarterly/v032/32.1.dembour.html
[accessed September 4, 2016].
13 See Preamble to Constitution of Lebanon.
14 N. Katamine, World Bank Conference Remarks, “Fragility in Middle Income Countries:
New Ideas for Unique Challenges,” Lima, Peru, October 2, 2015, available at:
www.worldbank.org/en/events/2015/09/28/fragility-in-middle-income-countries-new-
ideas-for-unique-allenges.print [accessed October 11, 2015].
15 Interviews in person with UNRWA representatives and Palestinian refugees from Syria
in Jordan (June 2014); See N. Erakat, “Palestinian Refugees and the Syrian Uprising:
498
Filling the Protection Gap During Secondary Forced Displacement,” International
Journal of Refugee Law (Oxford University Press, 2014), available at:
hp://ijrl.oxfordjournals.org/content/26/4/581.full?etoc [accessed November 12, 2015].
16 Norwegian Refugee Council, “No Escape: Civilians in Syria Struggle to Find Safety
Across Borders,” NRC Report, November 2014, available at:
www.rescue.org/sites/default/files/resource-
file/No%20Escape%20Syria%20report%20IRC%20final%20Nov2014.pdf; U.N. News Center,
“UN Agency Urges Jordan to Allow 12,000 Desperate Syrian Refugees Stranded at
Border,” December 8, 2015, available at: www.un.org/apps/news/story.asp?
NewsID=52760#.VmeDuUzLQ [accessed December 8, 2015].
17 In early 2013, Jordan’s Prime Minister, Abdullah Ensour, announced the government’s
official non-admission policy for Palestinian refugees from Syria. It was widely
understood to reflect (1) the Jordanian Government’s reluctance to increase Jordan’s
pre-existing Palestinian population of roughly 2 million and (2) the Jordan
Government’s fear of becoming the long-term “alternative home” country for
Palestinians. Nevertheless, Jordan’s strict no-entry policy generally excludes Palestine
refugees from Syria who have a Jordanian national number. Other exceptions to the
policy occur sometimes for those who (a) are eligible to receive a Jordanian national
number (for example, those who possess a royal acquial form issued aer their
ancestors’ expulsion from Jordan due to the events of September 1970) and (b) have
applied for political asylum through the Jordanian embassy in Syria.
18 e Universal Declaration of Human Rights (Article 14), available at:
www.un.org/en/universal-declaration-human-rights/ [accessed December 10, 2015].
19 H. Hannum (ed.), Guide to International Human Rights Practice, (Hotei Publishing, 2004)
p. 214.
20 Under customary international law, however, they are arguably bound by the principle
of non-refoulement, or the prohibition of forcible return. is provides at least some
legal baseline for not rejecting refugees or turning them away at the border with Syria.
21 K. Kirisci, “Syrian Refugees in Turkey: e Limits of an Open Door Policy,” Brookings
Institution Blog, June 27, 2013, available at: www.brookings.edu/blogs/up-
front/posts/2013/06/27-syrian-refugees-in-turkey-kirisci [accessed October 10, 2015]; R.
499
Sweis, “Jordan’s Open Door Is Now Only Craed, Leaving Syrians Stranded,” New York
Times, November 20, 2014, available at:
www.nytimes.com/2014/11/20/world/middleeast/jordans-open-door-is-now-only-
craed-leaving-syrians-stranded.html [accessed November 21, 2014]; Human Rights
Wat, “Turkey: Syrians Pushed Ba at the Border,” November 23, 2015, available at:
www.hrw.org/news/2015/11/23/turkey-syrians-pushed-ba-border [accessed December
10, 2015].
22 Lebanese General Directorate for General Security, Specifications on Lebanon’s Border
Entry Categories and Requirements, available at: www.general-
security.gov.lb/getaament/e1e76fe0-181e-4fe7-a19c-9b175759ad49/Rules.pdf.aspx?
set=f247bae1-d485-42fa-8a33-079df973a536 [accessed November 10, 2015].
23 See Protection Sector Dashboard June 2015, InterAgency Coordination, Lebanon,
available at: data.unhcr.org/syrianrefugees/download.php?id=9236 [accessed December
10, 2015].
24 e 2003 MOU between the Lebanese government and UNHCR, however, does not cover
prima facie refugee determinations.
25 See Protection Sector Dashboard June 2015, InterAgency Coordination, Lebanon,
available at: data.unhcr.org/syrianrefugees/download.php?id=9236 [accessed December
10, 2016].
26 J. Owens, “UNHCR: Lebanon’s New Rules for Syrian Refugees Raise Concern,” VOA
News, January 20, 2015, available at: www.voanews.com/content/unhcr-says-lebanon-
new-syrianrefugee-rules-raise-concern/2606223.html [accessed Mar 20, 2016].
27 FrontiersRuwad, “Violation of the Right to Seek Asylum and Non-Refoulement,” Joint
Submission in View of Lebanon’s Second Periodic Review by the U.N. Human Rights
Council, Mar 23, 2015, available at:
hps://frontiersruwad.files.wordpress.com/2015/03/2015-upr_lebanon_right-to-seek-
asylum_joint-submission_mar-2015.pdf [accessed November 10, 2015].
28 ibid.
29 Norwegian Refugee Council Report, “A Precarious Existence: e Shelter Situation of
Syrian Refugees in Neighboring Countries,” June 2014, available at:
500
www.nrc.no/ar/_img/9179446.pdf [accessed November 10, 2015].
30 P. Verme, et al.,World Bank and UNHCR, The Welfare of Syrian Refugees: Evidence from
Jordan and Lebanon, December 16, 2015, available at:
www.worldbank.org/en/news/feature/2015/12/16/welfare-syrian-refugees-evidence-
from-jordan-lebanon [accessed December 17, 2015].
31 D. Sullivan and S. Tobin, “Security and Resilience Among Syrian Refugees in Jordan,”
Middle East Research and Information Project, October 14, 2014, available at:
www.merip.org/mero/mero101414 [accessed November 10, 2015].
32 “UN Refugee Chief Visits Camp in Turkey,” Andalou Agency, January 15, 2016, available
at: hp://aa.com.tr/en/turkey/un-refugee-ief-visits-refugee-camp-in-turkey/505716
[accessed January 16, 2016].
33 “Turkey Opens Up to International Aid in Camps,” IRIN News, November 16, 2012,
available at: www.irinnews.org/analysis/2012/11/16/turkey-opens-international-aid-
camps [accessed December 2, 2015]; Mac McClelland, “How to Build a Perfect Refugee
Camp,” The New York Times, February 13, 2014, available at:
www.nytimes.com/2014/02/16/magazine/how-to-build-a-perfect-refugee-camp.html?
_r=0 [accessed December 2, 2015].
34 O. Budak, “Global Migrant Crisis Requires Global Effort,” Boston Globe, November 14,
2014, available at: hps://www.bostonglobe.com/opinion/2015/11/14/global-migrant-
crisis-requires-global-effort/S4DVxSUm4NNJ9vWLhKVrpJ/story.html [accessed
December 2, 2015].
35 Interviews with C. Benam by phone and email, December 2015.
36 Ahmet Icduygu, “Syrian Refugees in Turkey: e Long Road Ahead,” Migration Policy
Institute, April, 2015, available at: www.migrationpolicy.org/resear/syrianrefugees-
turkey-long-road-ahead [accessed December 2, 2015].
37 “Lebanese Minister Lobbies for Refugee Camps,” The Daily Star, September 27, 2014,
available at: www.dailystar.com.lb/News/Lebanon-News/2014/Sep-27/272213-lebanese-
minister-lobbies-for-syrian-refugee-camps.ashx#axzz3EWzMs0 [accessed November
11, 2015].
501
38 E. Shoufi, “Lebanon: Political Consensus Over Establishment of Formal Syrian Refugee
Camps Remains Elusive,” Al-Akhbar, September 11, 2014, available at: hp://english.al-
akhbar.com/node/21514 [accessed November 11, 2015].
39 U.N. High Commissioner for Refugees, UNHCR Policy on Alternatives to Camps, July 22,
2014, UNHCR/HCP/2014/9, available at: www.refworld.org/docid/5423ded84.html
[accessed December 9, 2015].
40 An official refugee camp is defined by UNHCR’s Policy on Alternatives to Camps as
“any purpose-built, planned and managed location or spontaneous selement where
refugees are accommodated and receive assistance and services from government and
humanitarian agencies. e defining aracteristic of a camp, as highlighted in
paragraph 3.2 of the policy, is some degree of limitation on the rights and freedoms of
refugees, su as their ability to move freely, oose where to live, work or open a
business, cultivate land or access protection and services.”
41 M. Kagan, “Why Do We Still Have Refugee Camps?” Urban Refugees Debate, October 8,
2013, available at: hp://urban-refugees.org/debate/why-do-we-still-have-refugee-
camps/ [accessed December 1, 2015].
42 U.N. High Commissioner for Refugees, UNHCR Policy on Alternatives to Camps, July 22,
2014, UNHCR/HCP/2014/9, available at: www.refworld.org/docid/5423ded84.html
[accessed December 9, 2015].
43 Id. at ICCPR Art. 12.3.
44 U.N. Human Rights Commiee (HRC), CCPR General Comment No. 27: Article 12
(Freedom of Movement) 2 November 1999, CCPR/C/21/Rev.1/Add.9, available at:
www.refworld.org/docid/45139c394.html [accessed December 10, 2015].
45 Human Rights Wat, Lebanon: At Least 45 Local Curfews Imposed on Syrian Refugees,
October 3, 2014, available at: www.hrw.org/news/2014/10/03/lebanon-least-45-local-
curfews-imposed-syrianrefugees [accessed January 1, 2016].
46 As identified by Jordan’s Ministry of Labor, these requirements include a valid passport,
Ministry of Interior security card, work contract, registration of employer’s business,
proof of worker’s social security subscription, and annual work permit fees.
502
47 Today’s Zaman, “Minister: Turkey Will Not Give Syrian Refugees Right to Work,”
August 8, 2015, available at: www.todayszaman.com/anasayfa_minister-turkey-will-
not-give-syrian-refugees-right-to-work_395996.html [accessed November 1, 2015].
48 E. Gurses and M. Ozkan, “Turkey Plans to Introduce Work Permits for Syrian Refugees,
Minister Says,” Reuters, Jan. 11, 2016, available at: www.reuters.com/article/us-europe-
migrants-turkey-idUSKCN0UP0QP20160111 [accessed January 11, 2016].
49 Lebanese Ministry of Labor’s 2014 Annual Report, available at:
www.labor.gov.lb/_layouts/MOL_Application/Cur/%D8%A7%D9%84%D8%AA%D9%82%
D8%B1%D9%8A%D8%B1%20%D8%A7%D9%84%D8%B3%D9%86%D9%88%D9%8A%20%20
2014.pdf [accessed November 11, 2016].
50 UNHCR, Syrian Refugees in Lebanon, Snapshot Jan-Mar 2015, available at:
hp://reliefweb.int/sites/reliefweb.int/files/resources/Syrian_Refugees_Lebanon_Snapsh
ot_Jan_Mar2015_v3_20150417.pdf [accessed November 11, 2015].
51 Interviews conducted in person by author, November 2015, Beirut, Lebanon.
52 e Nature of States Parties’ Obligations (1990), U.N. Doc. HRI/GEN/1/Rev.7, May 12,
2004at 15, para. 10, available at:
hp://tbinternet.ohr.org/_layouts/treatybodyexternal/TBSear.aspx?
Lang=en&TreatyID=9&DocTypeID=11 [accessed November 11, 2015].
53 U.N. Commiee on Economic, Social and Cultural Rights (CESCR), General Comment
No. 12: The Right to Adequate Food (Art. 11 of the Covenant), 12 May 1999, available at:
www.refworld.org/docid/4538838c11.html [accessed December 10, 2015].
54 U.N. General Assembly, International Covenant on Economic, Social and Cultural
Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at:
www.refworld.org/docid/3ae6b36c0.html [accessed December 10, 2015].
55 “Syrian Refugees No Longer Receive Food Vouers,” Jordan Times, Mar 19, 2015,
available at: www.jordantimes.com/news/local/34000-syrian-refugees-no-longer-
receive-food-vouers-april [accessed November 14, 2015].
56 See 3RP, Regional Refugee & Resilience Response Plan 2016–17 In Response to the Syria
Crisis, Regional Strategic Overview, p. 31–2, available at: www.3rpsyriacrisis.org/wp-
503
content/uploads/2015/12/3RP-Regional-Overview-2016-2017.pdf [accessed September 4,
2016].
57 See 3RP, Regional Refugee & Resilience Response Plan (2016–17) in Response to the
Syria Crisis, Regional Strategic Overview, p. 31–2, available at:
www.3rpsyriacrisis.org/wp-content/uploads/2015/12/3RP-Regional-Overview-2016-
2017.pdf [accessed December 20, 2015].
58 U.N. General Assembly, International Covenant on Economic, Social and Cultural
Rights, December 16, 1966, United Nations, Treaty Series, vol. 993, p. 3, available at:
www.refworld.org/docid/3ae6b36c0.html [accessed December 10, 2015].
59 WHO Response to the Syrian Crisis: Regional Situation Report, World Health
Organization, January 2015, available at:
www.who.int/hac/crises/syr/sitreps/syria_regional_health_sitrep_january2015.pdf
[accessed December 20, 2015].
60 See Government of Lebanon and United Nations, Lebanon Crisis Response Plan 2015–16,
available at:
hps://docs.unoa.org/sites/dms/Syria/LCRP_document_EN_26Mar2015.pdf [accessed
November 20, 2015].
61 UNHCR Jordan, Jordan Refugee Response, Vulnerability Assessment Framework Survey,
May 2015, p. 38, available at:
hp://reliefweb.int/sites/reliefweb.int/files/resources/vaf.pdf [accessed November 19,
2015].
62 O. Budak, “Global Migrant Crisis Requires Global Effort,” Boston Globe, November 14,
2014, available at: hps://www.bostonglobe.com/opinion/2015/11/14/global-migrant-
crisis-requires-global-effort/S4DVxSUm4NNJ9vWLhKVrpJ/story.html [accessed
December 2, 2015].
63 Save the Children, “Futures Under reat: e Impact of the Education Crisis on Syria’s
Children,” (2014), available at: www.savetheildren.org/atf/cf/%7B9def2ebe-10ae-432c-
9bd0-df91d2eba74a%7D/FUTURES_UNDER_THREAT.PDF [accessed September 4,
2016].
504
64 See General Comment No 13: e right to education (1999) U.N. Commiee on
Economic, Social, and Cultural Rights, “Educational institutions and programmes have
to be accessible to everyone, without discrimination, within the jurisdiction of the state
party.”
65 CRC Article 22 “States Parties shall take appropriate measures to ensure that a ild who
is seeking refugee status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall, whether unaccompanied or
accompanied by his or her parents or by any other person, receive appropriate
protection and humanitarian assistance in the enjoyment of applicable rights set forth in
the present Convention and in other international human rights or humanitarian
instruments to whi the said States are Parties.”
66 Save the Children, “Futures Under reat: e Impact of the Education Crisis on Syria’s
Children,” 2014, available at: www.savetheildren.org/atf/cf/%7B9def2ebe-10ae-432c-
9bd0-df91d2eba74a%7D/FUTURES_UNDER_THREAT.PDF [accessed November 18,
2015].
67 3RP Regional Overview 2016-17, p. 34, available at:
hp://data.unhcr.org/syrianrefugees/download.php?id=9937 [accessed January 1, 2016].
68 S. Gee, “When I Picture My Future, I See Nothing: Barriers to Education for Syrian
Refugee Children in Turkey,” Human Rights Watch, November 2015, available at:
www.hrw.org/sites/default/files/report_pdf/turkey1115_reportcover_web.pdf [accessed
December 10, 2015].
69 Interview in person with Maha Kaaa, ILO Syrian Refugee Response Coordinator for
Jordan, Beirut Lebanon, November 25, 2015.
70 A. Sen, “Born In Exile, Syrian Children Face reat of Statelessness,” UNHCR News,
November 4, 2014, available at: www.unhcr.org/5458916.html [accessed December 19,
2015].
71 Norwegian Refugee Council, “Registering Rights: Syrian Refugees and the
Documentation of Births, Deaths, and Marriages in Jordan,” 2015, available at:
www.nrc.no/ar/img.aspx?file_id=9208964&ext=.pdf [accessed February 2, 2016].
505
72 Z. Albarazi and L. Waas, “Statelessness and Displacement,” Norwegian Refugee Council
Scoping Paper, 2015, available at: www.nrc.no/ar/_img/9197390.pdf [accessed
December 20, 2015].
506
Selected Bibliography
Abisaab, J. et al. Syrian Refugees in Jordan: Urgent Issues and
Recommendations. Boston: Harvard FXB Center for Health and
Human Rights, 2014. Available at:
hps://cdn2.sph.harvard.edu/wp-
content/uploads/sites/5/2014/12/Jordan_2014-final.pdf.
Active Learning Network for Accountability and Performance. Syria
Evaluation Portal for Coordinated Accountability and Lessons
Learning, available at: www.syrialearning.org/ [accessed January
29, 2016].
Akram, S. et al. Protecting Syrian Refugees: Laws, Policies, and
Global Responsibility Sharing. Boston University Law Sool
Report (July, 2014). Available at:
www.bu.edu/law/files/2015/07/FINALFullReport.pdf [accessed
February 24, 2016].
Balsari, S. et al. “Syrian Refugee Crisis: When Aid Is Not Enough” in
The Lancet (2015). Available at:
hp://thelancet.com/journals/lancet/article/PIIS0140-
6736(15)60168-4/abstract [accessed April 1, 2015].
Center for Middle Eastern Strategic Studies—ORSAM. The Situation
of Syrian Refugees in the Neighboring Countries: Findings,
Conclusions, and Recommendations, (April, 2014). Available at:
www.syrialearning.org/resource/12433 [accessed February 23,
2016].
Erakat, N. “Overlapping Refugee Legal Regimes: Closing the
Protection Gap During Secondary Forced Displacement” in
Oxford International Journal of Refugee Law (December, 2014).
Available at:
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[accessed February 24, 2016].
Fiddian-Qasmiyeh, E., Loeser, G., Long, K. and Sigona, N. eds.
Oxford Handbook of Refugee and Forced Migration Studies.
Oxford: Oxford University Press, 2014.
Forced Migration Review. The Syria Crisis, Displacement and
Protection, no. 47 (September, 2014). Available at:
www.fmreview.org/en/syria/syria.pdf [accessed February 24,
2016].
Goodwin-Gill, G. and McAdam, J. The Refugee in International Law.
Oxford: Oxford University Press, 2014.
Hamill, K. and Bartels, S. Running Out of Time: Survival of Syrian
Refugee Children in Lebanon (Harvard FXB Center for Health
and Human Rights, 2014). Available at:
hps://cdn2.sph.harvard.edu/wp-
content/uploads/sites/5/2014/01/FXB-Center-SyrianRefugees-in-
Lebanon_Released-01-13-13.pdf [accessed October 31, 2014].
Hathaway, J. ed. Human Rights and Refugee Law. Cheltenham:
Edward Elgar, 2014.
Icduygu, A. Syrian Refugees in Turkey: The Long Road Ahead.
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www.migrationpolicy.org/resear/syrianrefugees-turkey-long-
road-ahead [accessed February 22, 2016].
Kirisci, K. and Ferris, E. Not Likely to Go Home: Syrian Refugees and
the Challenges to Turkey and the International Community.
Washington D.C.: Brookings, 2015. Available at:
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anrefugee-international-allenges-ferris-kirisci/Turkey-Policy-
Paper-web.pdf?la=en [accessed February 25, 2016].
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Shibli, R. Reconfiguring Relief Mechanisms: The Syrian Refugee
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2016].
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hp://data.unhcr.org/syrianrefugees/regional.php; 3RP Regional
Refugee Response and Resilience Plans. Available at:
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[accessed July 17, 2015].
509
Part II
Issues
510
Section V
Gender and human rights in the
Middle East and North Africa
511
15
Colliding Rights and Wrongs
Intimate labor, health, human rights, and
the state in the Gulf
Pardis Mahdavi
512
Introduction
Migrant–state encounters transform both migrants and the states
within whi they move and live. Whether in the home or host
country, migrant interactions with local and state officials affect and
are affected by migrants’ intimate lives. Juxtaposing migrants
against a reified and monolithic state eclipses the micro
opportunities made possible by state actors. is apter looks at
what happens when migrants encounter the state in its various,
personified forms. ese personified manifestations of the state
include the individuals whom migrants experience as the state or
authorities acting on behalf of or in the interests of the state, su as
embassy officials, employers, hospital staff, or law enforcement. In
these encounters, migrants have opportunities to negotiate their
agency specifically within the realm of SRRH and mobilize through
their frustrating immobility. In addition, these interactions affect
those who present them with allenges and possibilities. e
following stories of various dyads and triads, whi represent
microcosms between migrants and the state, highlight the role of
migrants’ intimate lives in producing micro mobilities and
movements. Migrants and state officials come across profound
opportunities in the small openings throughout their journeys—
whether provided, created or imposed—and find possibilities of
drawing on intimate lives to ange the immobilities of others. ese
encounters provide an opportunity to look more closely at migrants’
agency as well as the intricate workings of state power.
513
Stories from the field
Nataly, born and raised in Madagascar, always knew she wanted to
be a mother, but she never imagined that becoming a mother would
land her in jail. ough she still does not fully understand the
reasons for her imprisonment, Nataly was sent to jail in Kuwait the
moment her employers discovered her pregnancy. She was arged
on two separate counts: zina (or adultery and sex outside of
marriage) and violation of her employment contract. Nataly’s
decision to migrate to work abroad had not been an easy one, and
now her only desire is to return home to Madagascar with her baby
boy.
Working with an informal recruitment agency, Nataly had gone to
Kuwait and was placed in the home of a local Kuwaiti family. Over
time, Nataly became very close with the eldest son of her employers
named Afzal. He would sometimes take her to the movies on her
days off, and the two started sneaking into one another’s rooms in
the late hours of the evening aer the rest of the family had gone to
sleep. Nataly remembers Afzal as being kind, courteous and gentle.
“And he smelled good. It was too easy to fall in love with him,” she
added.
But when Nataly became pregnant, Afzal and the rest of the
family anged their aitudes towards her almost overnight. At first,
Nataly tried to hide her pregnancy, even from Afzal. Given her
slender frame, however, the obvious protrusion of her belly was not
easy to hide. Afzal was the first to notice. “He put his hand on my
belly and asked, ‘is this what I think?’ When I nodded, he was so
angry with me! He started yelling at me, asking me how I could have
let this happen. en that night he stopped speaking to me, forever,”
Nataly said through tears. Her employers hadn’t noticed the ange
514
in Nataly’s figure, but they noticed the ange in their son’s
behavior. Afzal, who oen wanted to take all his meals at home and
took Nataly out most weekends, was suddenly absent most of the
time. is led Nataly’s employers to question her regarding his
whereabouts. Nataly could not properly answer her employers’
questions and eventually ended up confessing her pregnancy. is
was unacceptable to her employers who turned her over to the
police, reporting her for the crimes of zina and brea of contract.
e police took Nataly to a detention center where she met over a
dozen other pregnant women. e police explained to Nataly that
she would be held in the center until her due date drew closer. She
had regular medical examinations, and when it was time for her
delivery, she was taken to a local hospital and gave birth to a baby
boy whom she named Afzal aer his father. She tried to contact her
previous employers and the baby’s father, but they never returned
her calls. A week aer she had given birth, Nataly was sent to a
different detention center. is time her suitemates were other
Malagasy and Ethiopian women who had babies. e babies were
allowed to live with them in the center, but minimal supplies were
provided. During this time Nataly was vaguely aware that she would
have to go to court and possibly face deportation. What she did not
know, however, was that if she were deported, the baby would
possibly remain in Kuwait as a stateless person if paternity were tied
to a Kuwaiti citizen.
Nataly and others in the detention center feared deportation
because it would restrict them from returning to the region and
possibly from finding work abroad ever again. One day a
representative from the Malagasy government came to visit the
women in the center. He was accompanied by a local activist and
asked to meet with all of the Malagasy women who were being held.
When they had convened, he told the women that several women
who had been deported from the detention center had approaed
the Ministry of Labor to report the situation of those being held in
515
detention against their will. Because of the collaborative efforts of
survivors and several faith-based initiatives, the government of
Madagascar had become invested in helping the women go home
without the shame of deportation. He offered all of the women
amnesty in exange for testimony about their recruiters and their
working situations abroad.
Several of the women took the official up on his offer. But Nataly
refused. “I said I didn’t want to go home if I can’t take Afzal (the
baby) with me. I’m not leaving without my son, I told them that. I
said I would rather rot in this jail, twelve women and how many
babies to one room. All of it, I would take that, but I would not go
home, no way,” Nataly explained. But Nataly felt conflicted. On the
one hand she worried for her family ba home, especially given
that she had not been paid for these many months of her labor, and
her mother and siblings could barely survive. On the other hand, she
felt that she could not leave without her son. Nataly’s story,
however, toued the government official who used her case to begin
lobbying for new laws regarding ildren of Malagasy women. Most
of the women who did not have ildren were repatriated, and a few
Malagasy women who did have babies le their ildren behind and
went home. Today, Nataly remains in jail with her son, awaiting
trial.
Fabian is a close friend of Nataly’s who also migrated from
Madagascar to Kuwait in sear of employment abroad. While their
trajectories started out in a similar fashion, and they even shared the
same jail cell for a time period in Kuwait, the outcomes of their
experiences were quite different. “Me, I don’t detest the government,
or really, the governments (les gouvernmentes), because the
governments oen help me. But the people, or really, my employer,
it’s she who detests me,” said Fabian, a slender Malagasy woman not
more than five feet tall. Fabian wore a scarf on her head because, in
her own words, “the working abroad made me si, and made me
lose my hair and all and all.” Fabian was born and raised in a rural
516
area located in the southern part of Madagascar. Aer her two
brothers were killed during violent altercations resulting from the
illegal stealing and selling of zebu, Fabian’s father decided to move
to Antananarivo, the capital of Madagascar referred to as Tana by
locals, in sear of safety for his only remaining ild. When they
arrived in Tana in 2012, her aging father, who turned seventy-five
the same year, was unable to find work.
In order to support her family, Fabian sought out employment
abroad and worked through an unlicensed recruiting agency. e
agency turned Fabian over to their partnering agency in Kuwait.
When she arrived, the staff at the partnering agency told her that she
was on a tourist visa, as opposed to a working visa, and that she
should keep a low profile due to the fact that her migration had been
illegal. “at is the first time I’m hearing that I’m there illegally.
Later I come to learn that Malagae [Malagasy] women are not
supposed to go to the Middle East, for this reason I’m just given a
tourist visa, but then I didn’t know exactly,” she explained1. Fabian
was placed in the home of a Kuwaiti family who insisted that she
wear a veil that covered her from head to toe, only revealing her
hands and face. She was given a very small room where she was
made to sleep on the floor but was only permied three to four
hours of sleep ea night. She spent her waking hours cleaning the
five-story house whi had several rooms on ea floor. Fabian did
not have a lot of experience with domestic work, so it took her some
time to learn how to work efficiently.
Shortly aer Fabian’s arrival, her female employer began giving
her shots twice a week. To this day, Fabian does not know what
exactly was contained in the shots, but she explained that aer the
shots her muscles hurt, her hands trembled, and she could not sleep.
“e madam is telling me I must do the shots for no babies, and for
more energy so I work beer, but my body cannot support the
shots,” Fabian said, referring to the fact that she began to have
epilepsy aer receiving these unidentified injections. Later, Fabian’s
517
doctor told me that he suspected that the shots were some
combination of contraceptives and B-12 energy shots, but he could
not be sure. Five other migrant women who worked as domestic
workers in the Gulf also reported receiving these injections.
One evening, the male head of household returned from work to
find his wife beating Fabian so severely that Fabian began
hemorrhaging. Fabian’s male employer began to beat his wife and
loed her in their bedroom. Aerwards, he came to Fabian and
offered her money. “He came and said to me, ‘Fabian, you must
leave here, if not, my wife will kill you. She is a very jealous woman,
and she will hurt you. You must go.’ But I was too weak. He saw
then that I’m very si. So I try to rest some days, but I keep the
money he gave me and I keep the idea,” Fabian explained. One night
a few weeks later, Fabian exited the house under the pretense of
taking out the trash. “at night, I took out the trash and never came
ba,” she said with a slight laugh, revealing a warm smile that I had
never seen before.
She was not sure of where to go but knew she wanted to avoid the
police because she had migrated illegally. When an Ethiopian taxi
driver offered her a ride, asking her if she wanted to go to the police
or the hospital, she asked him to take her to the South African
embassy. “I don’t know why I’m saying South African embassy, just
I have a feeling that there they can help me,” Fabian recalled, smiling
once again at the decision she had made some months ago. She
arrived at the South African embassy just aer midnight, and the
embassy was closed. e taxi driver, however, recognized the
security guard at the entrance and convinced him to allow Fabian to
spend the night in the security booth. She was grateful for the help,
and glad to have a place to rest as her health worsened.
e next day she went inside the South African embassy and was
able to speak with the labor aaé despite not being a South
African citizen. “He was so kind and helped me. He took me to the
shelter and said that he would look aer me, whi he did,” Fabian
518
explained. She was taken to a local shelter run by the Ministry of
Foreign Affairs in Kuwait. e shelter housed over 130 women of
different nationalities, most of whom had run away from their
employers, and a caseworker would visit and work with the women.
“ere, the shelter, it was ok, but like a prison. Not mu to do, eat
and sleep, and you can’t leave. And you are just siing there,
waiting and waiting,” added Fabian. e labor aaé from the
South African embassy came to visit her aer a few weeks and
observed Fabian’s worsening health. He told her that he was
working on finding her passport and resolving her paperwork so that
she could return to Madagascar. “He asked me if I am happy at the
shelter, but he can see that I’m geing more and more si. So he
calls Mama Lisa from the ur and she comes to take me to
another, beer place, in the ur, where I have doctors,” Fabian
said, pulling out a photograph of her siing in front of a decorated
Christmas tree inside a Kuwaiti apartment with four other African
women.
Fabian met several other women in similar situations at Mama
Lisa’s informal shelter, many who had been waiting months, even
years to return home. Aer six weeks, however, the South African
labor aaé came once again to visit her. He told her that he had
worked with the Ministry of Foreign affairs in Kuwait and had been
able to create an outpass for her and procure a tiet ba home2.
e Kuwaiti government paid for her tiet and also issued her a
e for ba pay that she had not received for many months.
“ey were so kind to me, the South Africans and the Kuwaitis, so
kind, they helped me to come home. ey were worried for me, you
know, because I’m si, so they really wanted to get me home,” she
recalled, happily.
When she arrived in Madagascar, however, she did not receive a
warm reception from the customs and immigration personnel at the
airport. Several policemen took her to a holding room and
questioned her for many hours. She was told that she had violated a
519
Malagasy law that prevents Malagasy citizens from migrating to
work in the Middle East. A police officer told Fabian that she could
face arrest and heavy fines for having violated the law. “But even
this police, he could see I am si, that I need help. So, thankfully, he
called my Pastor instead of arresting me. en my Pastor came and
took me to the ur, I am so luy,” she said. Fabian spent a week
living in the informal shelter at the ur in Antananarivo before
going home to her father who was now very ill. Fabian’s Pastor
arranged for her to have regular medical eups, but she could not
afford the medical care that her doctor prescribed.
Today, Fabian struggles to support her own and her father’s
medical bills. She is working with another survivor to open a
clothing shop in Tana and has successfully secured a loan from the
ur. Most importantly, Fabian’s case and the cases of six other
Malagasy women who migrated to Kuwait and faced abuse have
actually inspired the creation of a new human traffiing law draed
in August of 2014. Her return and her ability to narrate her story,
complete with the allenges posed by the agencies and her
employers as well as the help she received from embassy officials
and the Minister of Foreign Affairs in Kuwait, has forced the
Malagasy government to re-think their law. Rather than banning
women from migrating to the Middle East, the government now
seeks to regulate migration and to ensure the presence of Malagasy
officials in ea country where citizens may travel to work. Fabian is
currently working with her pastor and her fellow survivors to
influence the new law being draed by the Ministry of Justice that
will take into consideration their lived experiences and concerns.
e stories above reveal the complex interconnections between
sexual and reproductive rights, health, migrant labor, and the role of
the ‘state.’ e selective giving and withholding of sexual and
reproductive health services constitute an obvious violation of
human rights for intimate laborers in the Gulf. Both Nataly and
Fabian experienced violations of their human rights as a result of
520
various health interventions (or la thereof). But both women were
also able to navigate through these allenges—albeit with differing
results—through their encounters with different personifications of
the state. In this apter, I argue that the intersections of health and
human rights in the intimate lives of migrant laborers reveal
multiple layers of complexity in migrant encounters with the ‘state.’
Examining the contours of these migrant–state encounters allows for
an exploration of migrant subjectivity as well as transformations
within the ‘state.’ Looking at the impacts of migrants on the state
(not just vice versa) foregrounds the possibilities for anging the
human rights discourse around the intimate lives of laborers.
Conversations about intimate labor and human rights in the Gulf
tend to focus on the problematically reified issue of human
traffiing3. Currently, the dominant framing of human traffiing
focuses almost exclusively on the sex industry to the detriment of
sex workers and other types of migrant laborers alike. An increased
international focus on human traffiing, traced through Hollywood
films, journalistic exposés, corporate investment, and policies, has
hijaed the human rights discourse pertaining to migrant labor in
the Gulf. Instead of understanding the context of lived experiences,
the many layers of allenges that migrants in all industries face,
and the multiple roles of the ‘state,’ the current framework of human
traffiing constructs stark oppositional binaries: migrants vs. the
state, employers vs. employees, sex workers vs. other (intimate)
laborers. When this human rights discourse becomes equated to the
broader human rights discourse, it obscures more than it reveals. e
binaries listed above, and indeed the oppositional nature of the
discourse, crudely simplify multidimensional encounters and
decisions. Instead, lived experiences of both migrants and various
arms of the state tend to be more fluid. us, a similarly fluid human
rights discourse that anowledges the many layers of nuance is
needed in order to help migrants overcome the obstacles that they
do face. In particular, the arena of health and human rights can
521
illuminate the flexible role of the state and the possibilities for
ange that can come about from a modified human rights
framework less focused on moral panic and more grounded in lived
experience.
As one of my interlocutors asked me, “but who or what is the
state?” Rather than a monolithic, reified or static construction, the
state here can refer to the many different facets—human,
bureaucratic, and political—of operating power. When talking about
migrant encounters with the state, I’m referring to both home and
host countries, as I follow migrants through the cycles of
interactions they have with state actors, citizens, migrant networks,
and home communities. Rather than one monolithic entity that
affects all individuals the same, different individuals, citizens and
non-citizens, experience the state in a myriad of ways. Legal, formal,
or academic notions of the state differ from that whi migrants
experience at home and abroad. Various operators of the same state
can also work at odds with one another. While some operators of the
state may facilitate access to sexual and reproductive rights and
health (SRRH), others restrict and allenge migrants’ ability to
access SRRH and in some cases pose direct harm to their wellbeing.
Fabian experienced both tendencies. On one hand, her employer,
operating as her sponsor, made Fabian adhere to an unhealthy work
sedule, made decisions about Fabian’s body, and inflicted physical
harm. On the other hand, the Kuwaiti sponsored shelter and
caseworker gave Fabian space to recover and connected her with
resources that could provide more appropriate healthcare.
Both of the women whose stories began this apter faced
significant rights violations regarding sexual and reproductive
health. Nataly was imprisoned as a direct result of not being able to
access sexual health services. Fabian’s rights were violated as her
female employer forcefully injected her with contraceptives and
other unidentified substances. But academia and popular discourse
rarely examine the SRRH of migrant women in the Gulf. Intimate
522
labor tends to be the predominant lens of analysis through a
traffiing framework; however, the intimate lives of intimate
laborers reveal both obstacles to and possibilities for empowering
intimate laborers and advancing conversations about the human
rights of migrants in the Gulf.
Migrant women’s sexualities have been eclipsed both discursively
and politically, whi both corresponds and contrasts with the
hyper-regulation of women’s bodies and reproductive capacities.
Migrant women in the Gulf are contractually bound to celibacy.
Engaging in sexual activity (or even being suspected of engaging in
sexual activity), even if it does not result in visible pregnancy, is
grounds for termination, deportation, and oen incarceration.
Migrant women who become pregnant while in the Gulf are
immediately imprisoned and also arged with the crime of zina4.
Women face criminal arges for breaking their contracts and are
subject to heavy fines, and women who migrated illegally are
further subject to worse penalties when arrested for suspected sexual
activity. To compound their already precarious legal situations,
migrant women are also arged with the crime of zina, or sex
outside of marriage. Ziba Mir-Hosseini, in a powerful article entitled
“Criminalizing Sexuality: Zina Laws as Violence Against Women in
Muslim Contexts” (2010), outlines the ways in whi zina has been
used to regulate and criminalize female sexuality leading both to
physical and structural violence. In the case of migrant women in
the Gulf, the deployment of zina laws reinforces the regulation of
migrant women’s sexuality also codified through labor laws su as
the kefala system. Other solars have emphasized the structural
violence inherent in the kefala system5. But many women, even
those who migrate informally or abscond in order to circumvent the
kefala system, still experience the violence of discursive and political
regulation of their bodies. rough a combination of kefala and zina
laws, women are subject to what De Genova and Peutz term a
523
“deportation regime” wherein women’s deportability (deportation or
the possibility of forced removal) is tethered to their sexualities6.
Women are painted as hypersexual and in need of regulation both
discursively and legally. In sending countries, anxieties about
migrant women’s sexualities manifest in the form of rumors or the
emasculation of men who stay behind7. In receiving countries, laws
that criminalize migrant women’s sexualities respond to and
perpetuate discourses about the need to control migrant women
because of their sexualities. Frequently employers cite these
discourses as reasons for not allowing their female employees out of
the house unaccompanied. Female employers also perpetuate this
fear by categorizing migrant women as threats and seek to control
them through the regulation of their movements, activities, and
bodies. In response to these anxieties, laws and policies aim to strip
women of their sexualities by forcing celibacy and punishing
deviance8. Part of the punishment for many women entails forced
separation from their babies, as they are deemed immoral and
“unfit” to parent given their status as “criminals.” Many women are
forcibly deported without their babies.
Foucault’s notion of biopower helps describe the contours of the
lives of women, su as Nataly and Fabian, whose bodies are
managed by a whole host of actors within their home and host
states. In particular, biopower emphasizes a regulation of the
reproductive capacities of women, focusing on who can reproduce
and under what conditions. Biopower continues operating through
the bodies of female intimate laborers as the state (including, again,
how migrants experience the state through individuals like their
employers) regulates their movements, locales, and statuses, purely
because of their genealogy. Women workers experience regulation
from employers and state surveillance of their bodies as a source of
constraint. Mothers and ildren experience constraint as various
factions of the state exert biopolitical management semes to
control the existence of these “foreign” bodies within their borders.
524
In struggling to aain their SRRH, migrants work with and against
various arms of the state to allenge current legal frameworks and
look for new solutions. ese migrant–state encounters have the
possibility to provide a road map for a way forward in helping
migrant intimate laborers aieve their rights.
525
Regulate, discipline, punish
Migrant workers are oen subject to two, incongruent levels of
policing and disciplining. e first level involves state laws,
including labor laws (and la thereof) and the sponsorship or kefala
system. e second level of discipline comes from the kafeels or
sponsors themselves, who oen do not abide by state laws. Kafeels
take the form of large corporations or private employers in the
home, and while there are rules outlining humanitarian treatment of
workers, including laws against retaining passports and not
providing days off, many sponsors take it upon themselves to
discipline their employees. Many employees do not agitate for their
wages or report abuse out of fear of the harm that will come to their
families, deportation, or detention, and so these employers continue
to violate migrant workers’ rights, resulting in traffiing-like
experiences.
UAE and Kuwaiti laws regarding abortion and pregnancy outside
of marriage further complicate the situation for many workers. Even
though female domestic workers in particular do not have rights or
access to women’s health or family planning services, their
pregnancies can be cause for immediate termination of their
contracts and subsequent deportation. Islamic law as interpreted in
the GCC strictly prohibits abortion unless it is to save the life of the
mother or if the baby will be born with serious genetic defects and
likely will not survive.
Pregnancy outside of marriage is not permied. Although migrant
women who become pregnant while in the host country are
encouraged to return to their home countries to deliver their
ildren, if they can not finance their own return travel they may be
held in detention. Several of my interlocutors did not have their
526
passports or working papers, whi made returning home difficult.
Some women do not wish to return to their home countries for
reasons including fear of family stigma, fear of returning without
money to pay ba their family or their own debts, or a general
preference to remain abroad. In these cases, the women become
immediately undocumented, and their ildren are placed in a
precarious position. Women who are domestic workers are
imprisoned both for zina and brea of contract.
Tropes about race, class and gender as articulated in the UAE and
Kuwait are important in marginalizing or privileging migrant
workers and their narratives. Racial hieraries play a role in the
construction of local discourses about migrant women’s sexualities
and reproductive capabilities. State policies about reproduction and
family reunification for non-citizens reflect anxieties about migrant
women (especially women from certain socioeconomic bagrounds)
as mothers, fueled by concerns about demographics and racial
purity. As is clear from the language in the laws, unmarried migrant
workers are encouraged (and this encouragement is enforced) to
return to their home countries to have their ildren in order to
remain in accordance with Sharia law. Women who are pregnant
and wish to get married in-country are encouraged to do so but
many times are not able to retain their employment and/or cannot
live with their new spouses because living arrangements are oen
tied to employers. For married couples who are not citizens, the
criteria for filing for a residency permit for a baby are numerous and
accompanied by high costs and bureaucratic red tape. A close look at
the requirements reveals the allenges in aaining su a permit in
the case of tenuous relationships with employers/sponsors and the
allenges in procuring a passport for the baby. If these requirements
are not met, and the parents fail to file the necessary paperwork for
their newborn ild within 120 days of the birth, the ild will not be
permied to leave the country and the parents or legal guardian
527
must pay a fee of 100 AED (equivalent to $25 USD) for ea day over
the 120-day period.
In actuality, most women cannot finance their journeys home nor
are they always aware of laws pertaining to zina. Many are arrested
and imprisoned before they have a ance to file for paternity or
complete the necessary paperwork for their families. Navigating the
bureaucratic red tape of citizenship can be a triy process for many
women. Experiences vary at sending-country embassies. While some
women report receiving assistance at their embassies and procuring
white papers for their ildren to travel home with them, others
report no help and, in some cases, further incarceration. I personally
witnessed this when spending time at various embassies in Kuwait
and the UAE. While the embassy of the Philippines was invested in
providing assistance to migrant women and allowing them to
remain at their shelter with their ildren, the Indian embassy was
not able to provide mu assistance. To be fair, citizenship transfer
laws in the Philippines allow for ildren of Filipinas to become
citizens right away, thus facilitating the procurement of papers for
the women who were able to avoid or break out of incarceration.
e Indian labor aaé’s hands were tied because of home country
pressures not to extend citizenship benefits to the ildren of Indian
women who are deemed ‘immoral.’
Various arms of the state constantly survey women’s bodies,
sexualities, and reproductive capacities. In both home and host
countries, this surveillance takes the form of laws that contractually
bind female domestic workers to celibacy while they are abroad
(oen during their most fertile years) as well as laws permiing
employers to monitor their (female) employees’ health and sexual
activity. Discourses in home and host countries paint women as
hypersexual by influencing policies that curtail the movements of
migrant women inside and outside the home. Examples of these
discourses include those articulated by weary employers in the Gulf
who narrate their domestic workers as constant sexual threats inside
528
their homes. Many female employers assume promiscuity on the
part of their domestic workers, casting them as sexual predators, and
accusing them of seducing the various men in the household. Other
employers use narratives of domestic worker promiscuity and
hypersexuality to legitimate their decisions not to allow their
employees out of the house unaccompanied or denying them a
cellular phone. at women who are imported to perform intimate,
reproductive labor are excluded from reproducing themselves is also
a testament to Marxian analysis of alienation of the self.9 Migrant
women who are legally prohibited from reproducing while working
experience a type of immobilization of their intimate and family
lives whi sometimes corresponds with the physical immobility
that can result from violating these laws. Contractually sterilizing
intimate laborers in the Gulf, involving continuous healthcare
screenings and es, also opens the door to the possibility of
forced contraception, as was the case of Fabian.
Some migrants face allenges to their SRRH while abroad, but
receive assistance and support when they return home. Several of
my interviewees commented on the irony of a state that was not
invested in their rights before their migratory journeys, but they
were pleasantly surprised to see their home states seeking to meet
their needs. is is likely because different arms of the state act in
these different capacities; one arm of the state needs to send its
citizens abroad for remiances, while another arm of the state is
invested in protecting the rights of its citizens. When the question of
SRRH is brought to the fore, the home state in particular steps in to
help alleviate rights violations experienced by the migrant women
that it previously sent abroad with lile protection.
529
Conclusion: migrants, intimacy, SRRH, and
the state
Multiple layers of allenges and opportunities can be observed
when looking at interactions between migrants and the state with a
focus on SRRH. Legally, migrants are contractually sterilized, leading
to a simultaneous hypersexualization of female laborers and erasure
of their sexualities. How host countries operationalize these laws
and what can be observed in home country responses reveals mu
about the grey areas and room for possible movement and
strengthening of rights in this important area of migrant women’s
lives. e variability of employers and the willingness of hospital
staff, embassies, or informal NGOs to assist migrant women are
important aspects of subjectivity formation for migrant women. At
the same time, the transformations that take place at the state level—
in both sending and receiving countries—should not be overlooked.
e arena of SRRH may be an important intervention point wherein
sending countries can push for rights and reform for their citizens in
the Gulf. It is also an opportunity to highlight the intimate lives of
intimate laborers that are so oen eclipsed in narrow portraits of
their lives.
Migrants—both men and women—are transformed by their
experiences working in the Gulf. eir intimate lives and selves
ange, and they face both allenges and opportunities for
emotional, social, and economic mobility. But it is also important to
note the ways that migrants transform the states between whi
they move, particularly within the realm of SRRH. Sending country
officials may wish to lobby their governments to enact ange and
protect the SRRH of their citizens. Receiving country employers or
hospital staff may be open to safe guarding the SRRH of migrant
530
women, even if they are not invested in protecting other aspects of
their rights. e arena of SRRH presents an opportunity for dialogue
that incorporates, and even foregrounds, migrant women’s voices
and lived experiences, not just between sending and receiving
countries at the state level, but globally as well. ese micro
movements and spaces that can be observed in migrant–state
microcosms and encounters become the foundations for larger
conversations not only about SRRH but also about human rights at
large and should not be overlooked.
As my ethnographic resear has shown, the relationship between
sexual and reproductive rights, health, migrant labor, and the role of
the ‘state’ is both complex, and also anging in possibly positive
ways. It is true that many migrants experience violations of their
rights, particularly in the arena of SRRH, but it is also true that
many are also able to navigate through these allenges through
their encounters with different personifications of the state. e
intersections of health and human rights in the intimate lives of
migrant laborers reveal multiple layers of complexity in migrant
encounters with the ‘state’ and it is in these micro movements that
migrant subjectivity, and transformations of the state can be beer
understood. Most importantly, understanding the impacts of
migrants on the state (not just vice versa) foregrounds the
possibilities for anging the human rights discourse around the
intimate lives of laborers, a conversation that is mu needed and
can be a powerful agent for ange for migrants and states alike.
531
Notes
1 See the Freedom of Movement section of the U.S. Department of State’s 1993 Human
Rights Practices report on Madagascar. U.S. Department of State, Bureau of Democracy,
Human Rights, and Labor, Madagascar Human Rights Practices, 1993 (January 31, 1994).
Accessed May 15, 2014.
hp://dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/93hrp_report_africa/Madagas
car.html.
2 An “outpass” is essentially documentation that allows migrants to exit the host country
without their passports. ese are usually created by migrant’s own embassies, but in
this case, because there is no Malagasy embassy in Kuwait, the South African embassy
was able to step in and assist Fabian.
3 For more in-depth discussion of the production of moral panic, an idea drawn from the
work of Stanley Cohen, around human traffiing especially in the Gulf, please see
Mahdavi (2011 or 2013).
4 Zina is the act of unlawful sex outside of marriage, including both premarital and
extramarital sexual relations. is law is established within Sharia law, whi is a
religious and moral code followed and combined with secular law in the GCC and other
countries. Sharia law mandates two means of proving zina: either the person who
commied zina confess or four eyewitnesses testify. However, when an unmarried
woman becomes pregnant, her pregnancy can be used to prove that she has commied
zina. Laws on zina drastically affect migrant women because they are women and
generally la citizenship within the GCC. Many migrant women are married, but their
husbands reside in another country. e use of pregnancy to prove zina ignores issues
of rape within the workplace and denies women sexual autonomy. Because of these
issues, pregnancy is considered circumstantial proof and is hotly debated. Zina may not
be directly cited within secular law, but the combination of Shaira law and civil law
within judicial systems makes zina present. In the UAE, the Federal Penal Code includes
provisions of Sharia law. Article 345, on rape, states that anyone who uses coercion to
532
have sexual intercourse with a female or homosexual relations with a male will be
sentenced to the death penalty. is article does not make direct mention of zina but is
cited in relation to laws concerning sex outside of marriage. is would seem to protect
survivors of rape from being arged with zina, and if they are migrants, from being
deported. is law combined with the use of pregnancy to prove zina ignores the
nuance and situational power dynamics that occur especially within an
employer/employee relationship. e article also states that coercion will be considered
existent if the victim is below the age of fourteen.
5 See Gardner (2008) and Longva (1999).
6 Niolas De Genova and Natalie Peutz, eds., The Deportation Regime: Sovereignty,
Space, and the Freedom of Movement (Durham, NC: Duke University Press, 2010).
7 See Osella and Osella (2012).
8 See Ong (2006).
9 See Marx and Engels (1848).
533
Selected Bibliography
De Genova, Niolas and Nathalie Peutz eds. 2010. The Deportation
Regime: Sovereignty, Space, and the Freedom of Movement.
Durham, NC: Duke University Press.
Gardner, Andrew M. 2008. “Strategic transnationalism: e Indian
diasporic elite in contemporary Bahrain” in City & Society vol.
20, no. 1, 54–78. doi: 10.1111/j.1548-744X.2008.00005.x.
Government of Dubai. 2013. “Complying with marriage and
pregnancy laws.” The Official Portal of Dubai Government.
Dubai Smart Gov, Mar 6. Accessed February 26, 2015.
www.dubai.ae/en/Lists/Articles/DispForm.aspx?ID=27.
Hondagneu-Sotelo, Pierree. 2003. Gender and U.S. Immigration:
Contemporary Trends. Berkeley, CA: University of California
Press.
Longva, Anh Nga. 1999. “Keeping migrant workers in e: e
Kafala system in the Gulf” in Middle East Report vol. 211, 20–2.
Accessed September 4, 2016.
www.merip.org/mer/mer211/keeping-migrant-workers-e.
Mahdavi, Pardis. 2013. From Trafficking to Terror: Constructing a
Global Social Problem. London: Routledge.
Mahdavi, Pardis. 2011. Gridlock: Labor, Migration, and Human
Trafficking in Dubai. Stanford, CA: Stanford University Press.
Marx, Karl and Friedri Engels. 1967. The Communist Manifesto
(1848). Translated by A. J. P. Taylor. London: Penguin, trans.
Ong, Aihwa. 2006. Neoliberalism as Exception: Mutations in
Citizenship and Sovereignty. Durham, NC: Duke University
Press.
Osella, Caroline and Filippo Osella. 2012. “Migration, networks and
connectedness across the Indian Ocean.” In Migrant Labor in the
534
Persian Gulf, edited by Zahra Babar and Mehran Kamrava, 105–
36. New York: Columbia University Press.
Parreñas, Rhacel Salazar. 2008. The Force of Domesticity: Filipina
Migrants and Globalization. New York: New York University
Press.
U.S. Department of State, Bureau of Democracy, Human Rights, and
Labor. 1994. Madagascar Human Rights Practices, 1993. January
31. Accessed May 15, 2014.
hp://dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/93hrp
_report_africa/Madagascar.html.
United Arab Emirates. 1987. Federal Law No. 3 for 1987 on Issuance
of the Penal Code. Issued on December 8, 1987. Accessed June 5,
2014. www.icrc.org/ihl-
nat/6fa4d35e5e3025394125673e00508143/e656047207c93f99c12576b
2003ab8c1/$FILE/Penal%20Code.pdf.
535
16
Turning Ba the Clo
Population policy and human rights in
Iran
Homa Hoodfar
536
Introduction
e Islamic Republic of Iran’s introduction of pro-natalist policies in
2012 following twenty-three years of the most successful family
planning program in world history is being hotly debated both
inside and outside the country.1 Proponents argue the policies are a
needed corrective to ensure population increase to support Iran’s
long-term economic growth, self-sufficiency and independence, as
well as to maintain a secure Shi`a majority nation for the benefit of
Shi`a Muslims worldwide. Opponents claim that the imposition of
pro-natal policies is economically foolish given Iran’s high
unemployment and under-employment; that the policies are one
more aempt by fundamentalist ideologues to engineer their version
of Islamic patriary; and that they violate human rights,
particularly those of women, who are being pressured by the State’s
framing of high fertility as women’s national and religious duty.
e pro-natal policies are contained in Bills 315 and 446
(heretofore ‘the bills’), as well as in several directives from the office
of Iran’s Supreme Leader, Ayatollah Khamenei.2 While it is every
State’s right to address the long-term future of the nation, it is
arguably also incumbent upon leaders—especially of nations su as
Iran whi are signatory to various human rights treaties—to
support human rights and freedoms domestically in accordance with
constitutional guarantees that serve to optimize individual, and thus
national, potential. How states balance these demands provides an
apt metric for assessing a state’s position vis-a-vis the protection of
individual human rights and freedoms.
In short, the details of the current directives and proposed bills
and the public discourses surrounding the State’s pro-natal policy
provide an opportunity to analyze the regime’s commitments to the
537
sexual and reproductive rights of women. is apter thus briefly
outlines the history of Iran’s population policies, then assesses the
explicit and implicit goals of the 2012 pro-natal policy, and finally
considers what the policy suggests about the regime’s commitment
to human rights, in particular reproductive rights.
e larger issue this apter raises is how the ideology underlying
su conservative policies reveals the overaring patriaral agenda
of governments su as Iran’s, whose power depends on reinforcing
conservative social structures, rather than reflecting the anging
voices and norms of its people.
538
History of population and family planning
1966–2012
In contrast to regional counterparts su as Turkey and Egypt, Iran
began concerning itself with population issues rather late; the first
official family planning policy (targeting urban populations) was
introduced in 1967. Despite Islam’s historical acceptance of
contraception, this program was sharply criticized by the religious
opposition, notably Ayatollah Khomeini, and called an imperialist
plot to reduce and subjugate Muslims.3 Nonetheless, and despite the
program’s limited scope, it eventually aieved some success.4 With
the downfall of the Shah’s modernist regime in 1979 and the Islamic
Republic’s subsequent fervent pro-natal position,5 Iran’s population
increased from 36 to over 50 million between 1979–89.6
e revolutionary regime promised to improve living standards
for the most disadvantaged– its primary constituency. However, by
the mid-1980s it was clear that state resources were insufficient to
aieve this, particularly in terms of education, health care, and
employment. It was under these circumstances that Ayatollah
Khomeini, in an about face shortly before his death in 1989,
instituted the Republic’s population program and experts set out to
design an effective, highly subsidized, modern family-planning
program.
A key strategy of the program was a campaign promoting small
families for healthier ildren, more resources within families, beer
health for mothers, beer social services for all Iranians, and a more
secure and stable nation; thus simultaneously affirming both the
very private nature of reproductive oices and the program’s deep
political implications for Iran’s political and economic
independence.7 e authorities also ensured that the program was
539
promoted and perceived as ‘family planning’ and not ‘population
control,’ explicitly emphasizing private reproductive oices as key
to family and national well being. To this end the State included
promotion of subsidized infertility treatment as part of family
planning. Abortion was not addressed as a component of family
planning, thus avoiding criticism from more conservative religious
leaders.8
Since women’s support was key to the program’s success, over
objections from some conservative religious leaders authorities
consistently ampioned women’s control over family size, as well
as their rights to education and labor market participation. is
created space for women’s rights proponents to successfully lobby
for women’s economic and legal status,9 and for over two decades
contributed to the most successful family planning program in the
world. Fertility declined steadily to approximately 1.7 in 2014, below
replacement rate. Conservatives grew alarmed that the decreasing
population would undermine the power and prestige of the Islamic
Republic and, with the election of neoconservative President
Ahmadinejad (2005–13), began working to ange Iran’s population
policy.
540
Sexual and reproductive rights and pro-natal
policies
Sexual and reproductive rights
Contemporary notions of sexual and reproductive rights—widely
accepted since the 1994 Cairo International Conference on
Population and Development (ICPD)—include rights and freedoms
related to human sexuality and reproduction based on the principle
of self-determination with respect to issues su as whether, when,
and how many ildren women oose to have.10 States whi are
signatories to the ICPD Plan of Action, including Iran, agree to
provide an environment ensuring highest possible standards of
sexual and reproductive health. Access to information and
contraception are inherent to these rights. With the exception of
abortion, whi remained illegal except under limited health
circumstances, Iran’s previous family planning program (1989–2012)
largely fulfilled this commitment. e question examined here is
whether, and to what extent, the 2012 population policy11 has
continued to align with citizens’ reproductive rights.
Pro-natal policies
e new population policy is criticized as pro-natalist and thus
inherently problematic; however its critics generally neglect to
define pro-natalism. ough pro-natalism might be rhetorically
manipulated by agenda-driven ideologues, at its most elemental pro-
natalism is simply those actions, agendas and policies whi
541
encourage motherhood and high female fertility. Pro-natalism has
historically been a preoccupation of states because of the
relationship between power and population; demographics are of no
less political concern to modern states.12 ough in the
contemporary literature pro-natal policies are oen presented as
regressive towards women’s rights and individual freedom,13 they
are neither inherently regressive nor progressive. Negative
perceptions of pro-natal policies stem in part from their association
with totalitarianism and eugenics.14 However, almost all
industrialized societies have practiced degrees of pro-natalism.
Sweden, France, the UK, ebec and many others have acted to
increase fertility rates by engineering social, economic and cultural
conditions that favor ildbearing. However, these states also respect
the rights of those who oose NOT to reproduce or raise ildren.
Hence, as noted, pro-natalist policies and reproductive rights are not
necessarily at odds.
What then is the acceptable degree to whi democratic states
should concern themselves with the reproductive behaviors of their
citizens through social policy? is question is linked with complex
issues around the nature of the relationship between a State, the
individual and ‘the family.’ At what level and through whi
institutions should the State intervene in the reproductive decisions
of its citizens? What should be the limits of su interventions?
Clearly the potential rea of modern states into the private lives of
citizens is greater today than ever in history. It is in this context that
we consider the tensions between individual rights, state interests,
and the common good in framing our analysis of Iranian population
policies.
From human rights and feminist perspectives, the best population
policies enable women to exercise their reproductive rights without
social or legal coercion. e reproductive rights agenda and pro-
natalist population policies clash only if the pursuit of pro-natalist
policies is undertaken at the expense of human rights and women’s
542
rights, including rights to health and bodily autonomy. us, states
wishing to increase their population while protecting human rights
should strive to ensure that encouraging ‘the oice’ to parent does
not result in discrimination against those who oose to limit their
family size or to not reproduce at all.
To assess whether a pro-natalist program contravenes
reproductive or other rights, particularly of women, we must note
that su programs generally operate on several levels. Culturally
motherhood might be promoted as a ‘natural’ aspect of women’s
identity and destiny. Politically motherhood may be ideologically
framed as an obligation to the nation, or to one’s ethnic group, or
even as a eugenic imperative as seen under Hitler. Su politicized
pro-natalism is historically associated with patriaral right-wing
ideological or fundamentalist religious perspectives and, when
baed by state and legal structures, strongly limits the life oices
and reproductive rights of women, and to a lesser extent men. Under
su conditions a woman’s oice to not have ildren or to
prioritise other pursuits is framed as aberrant.
Human and reproductive rights advocates argue that any pro-
natal policy whi constrains the practical exercise of citizens’ rights
is regressive. is includes the invocation by a state or by state-
baed religious authorities of divine will, natural order, or national
interest urging women to put the alleged common good ahead of
their own needs, as well as structural limitations for women’s
opportunities outside the family.
Rights advocates also condemn the stifling of protest against
reproductive policies and state suppression of information on
reproductive health rights. us, it is argued that pro-natalist
programs whi subvert women’s ability to manage their fertility by
aggressively prioritizing ideals of the common good, national
interest, or ethnic or religious dominance are generally anti-
democratic. Additionally, women of ildbearing age in su
contexts are rarely involved in seing fertility priorities. Pro-natal
543
policies in su contexts are oen underscored by a powerful
rhetoric, and the possibility of punitive action, whether moral or
material, is ever present for those who do not comply.
544
e price of success: from family planning to
pro-natal population policy in the Islamic
Republic
With fertility dropping to below replacement levels in the last
decade some policy makers grew increasingly concerned that Iran,
like Japan and the industrialized European nations, would soon
contend with an expanding elderly population and an inadequate
young workforce to support it. ese concerns were quily taken up
by conservative religious leaders who historically opposed the
Republic’s family planning program. In alliance with Ahmadinejad’s
neoconservative government elected in 2005, they began lobbying
for a pro-natalist initiative, despite warnings from experts that a
government focus on a hypothetical population deficit down the
road while ignoring the faltering import-heavy economy and high
youth unemployment would lead to economic and political
instability.15
Nevertheless pro-natal momentum increased when in 2006
President Ahmadinejad suggested in a spee to Parliament that
women should be given financial incentives to have more than two
ildren (though low oil prices and considerable national debt made
this entirely unfeasible). Religious and conservative leaders zealously
support pro-natal policy to counter the alleged decadent
individualism, rampant secularism and Westernization they claim is
threatening traditional society and values, in particular traditional
female gender roles. Pro-natalism is part of their push for a
comprehensive state program to reverse ‘un-Islamic’ trends, whi
they contend include later age of marriage, higher divorce rates,
fewer ildren, homosexuality, and more women oosing to remain
545
single—all alleged effects of Western influence. eir rhetoric
disregards the constant evolution of ‘Islamic’ culture over the last 14
centuries.
is conservative rhetoric of societal decay manifest primarily
through women’s anging behaviors ignores possible factors su
as marriage laws whi define women as minors and whi might
account for women’s decreasing interest in marriage. ere is in fact
government resear suggesting marriage inequality may be
contributing to marriage decline.16
Initially, pressure from conservatives led to major budget cuts to
the family planning program, despite the fact that a significant part
of that budget went to infertility treatment centers and maternal and
ild health.17 en, in May 2012, the Supreme Council of the
Cultural Revolution (SCCR)18 adopted and sent to Parliament a
resolution entitled “National strategies and actions to reverse the fall
in fertility rate in accordance with Islamic teaings and national
strategic requirements,”19 calling for the abolition of birth control
policies.20 is resolution, calling for a comprehensive mobilization
of a broad spectrum of economic and social resources to increase
population, provides some insight into the politics of demography. It
calls for all major ministries and structures, from health to
economic, labor and employment, welfare, education, housing,
marriage and family law, as well as the Office of Women and Family
Affairs, to be mobilized to promote earlier marriage and pregnancy
and to support lifestyle, educational and employment opportunities
“in accordance with Islamic values and the best interest of the family
for the purpose of complete fulfillment of the role of mother and
wife.”21
e resolution clearly illustrates some disregard for citizens’
rights, particularly women’s rights, by the highly influential SSCR.
In July 2012, a month aer the resolution was submied to
Parliament, the Supreme Leader Ayatollah Khamenei gave a
televised spee exhorting authorities to: “… End the policy of
546
population control and family planning and put an end to the idea
that one or at most two ildren is ideal.” He said that while su a
policy made sense twenty years ago, “its continuation … is wrong
…,” arguing that Iran should aim for “a population of 150 or 200
million,22 as was once stated by Imam Khomeini, and those are the
types of figures we must aieve.”23
e spee marked a turning point in Iran’s population policy as
the regime formally anowledged its shi to State directed
population expansion, and led directly to the elimination of the
Health Ministry’s ‘Population Control’ program. An interesting
ange of terminology occurred during these discussions. Prior to
the 2012 spee, particularly before the election of president
Ahmadinejad, authorities were vigilant to avoid terms like
population control—and in fact infertility treatment was a
highlighted aspect of the Population Program.24 However, as the
State shied gears around population policy, the term ‘family
planning’ was increasingly replaced with ‘population control’ by
pro-natalist politicians and the official media. In this way the family
planning program, considered by many to be the most women-
friendly initiative in the brief history of the Islamic Republic despite
its State-defined goal of fertility reduction, came to an end.
547
Translating pro-natal policies into law: Bills
315 and 446 and their implementation
Following the SCCR’s resolution, Parliament scrambled to prepare a
Bill translating the guidelines into law. As noted earlier, these
included increasing the fertility rate, removing barriers to marriage,
promoting larger families by supporting earlier age at marriage,
[and] “strengthening the foundation and sustainability of [the
institution of] family through reforming and developing public
education programmes about the merits of family formation and
ildbearing.”25 Bill 315, the Comprehensive Population and Family
Excellence Plan, was presented to Parliament on June 18, 2013.
However, because of the bill’s massive and unrealistic financial and
legal implications it was sidelined. Conservatives responded with
Bill 446, the Bill to Increase Birthrate and Prevent the Fall in Fertility
Rate on April 20, 2014.26 is ‘soer’ version le out more
controversial and especially the most costly aspects of Bill 315. e
government has proceeded with its new population policy based on
the SCCR resolution guidelines. Bill 446 passed in August but as of
this writing is still awaiting passage by the Council of Guardians;27 it
continues to be the subject of intense public discussion. Although
tenically not yet law, many aspects of the bills have been
incorporated into current policies, making their formal passage into
law somewhat irrelevant. is entire process calls in to question the
State’s aitude toward the democratic process and the ideals of a
Republic, and provides a window on how the Iranian state balances
the rights of citizens with its own priorities.
Cultural environment
548
Both the bills and the SCCR guidelines specifically address cultural
ideals pertaining to family life and social practices whi shape
behaviors around fertility. e bills thus dictate that the Ministry of
Culture oversee many aspects of their application and ban negative
media portrayals of marriage and family life, and of large families.
e Ministry of Culture, the Islamic Propagation Organization, all
cultural organizations, and the mass media—particularly radio and
television, whi continue to be a monopoly of the State—are to
develop programming portraying traditional large families living
happily in accordance with Islamic standards. Cultural centers and
media are banned from providing any information related to family
planning. Programming on marriage must focus on the pivotal and
discrete gender roles of women as mothers and men as
breadwinning authority figures. ese directives clearly disregard
the cultural rights and freedom of expression associated with the
ethnic and cultural diversity of Iranians. e increased social
engineering involved in the new population policy is uncomfortably
reminiscent of fascist teniques.28
Banning information: family planning, contraception,
and abortion
e “Two ildren are enough” and “Fewer ildren, happier life”
slogans of the family planning campaign promoted by reformist
governments from 1989–2004 did not sit well with the Ahmadinejad
government. In its early days the government aempted to replace
existing high sool and university family-planning syllabi with the
State-commissioned Glory of Marriage and Spousal Partnership,
published by the Office of Women and Family Affairs. Sools and
colleges protested that this violated the constitutional guarantee of
sools to function without political interference. Science teaers
549
argued that their obligation was to provide scientific facts, not
lifestyle and morality lectures.
However, following the submission of the SCCR resolution and
Bill 446—and, despite the bill’s failure to date to be formally adopted
as law—sools, including university departments of demography,
bowed to political pressure and dropped the family planning
component of their curricula. Su governmental interference with
educational content continues to worry civil society and rights and
democracy advocates.
Perhaps the most alarming section of Bill 446 is Article 1, whi
states:
All activities related to various methods of abortion and sterilization, su as vasectomy
and tubal ligation, as well as any other activities in view of promoting family planning
or discouraging childbearing (emphasis added) are prohibited and punishable under
article 624 of the Islamic Penal Code.29
Further, the bill mandates the Ministries of Health and Medical
Education, and of Culture and Islamic Guidance, to monitor
universities, hospitals and public and private health centers for
contraventions to Article 1, and report those responsible to the
authorities.30 is article interferes with the professional duties of a
wide range of medical, educational, and social service practitioners
involved with sexual and reproductive medicine and education, and
family planning services. It also enjoins colleagues to spy on one
another and their institutions, whi weakens social solidarity and
promotes distrust and suspicion—a common strategy of dictatorial
and repressive regimes. e directives also censure the activities of
human rights defenders advocating for sexual and reproductive
health. Medical professionals in particular worry that Article 1
leaves them open to potentially grave legal consequences, including
imprisonment, if they continue to follow their professional codes of
ethics by providing health information and services to their patients
whi are not in line with the pro-natal policy.31
550
Restricting sexual and reproductive health services, education,
and activism in this way inevitably violates the right to health.
Criminalizing access to contraception and to information concerning
sexuality undermines human dignity, a cornerstone of human rights
predicated on the freedom to make personal decisions without
interference from the State. While su laws are harmful to all
citizens, the impact on women and girls is particularly detrimental
as the biology of reproduction is generally embedded in economic
and social frameworks that oen disadvantage females, especially in
more conservative societies. To wit, denial of access to information
on sexual health and contraception (and abortion), along with
increased state control over women’s life oices, forces women into
unwanted and unplanned pregnancies.32 Measures whi limit
information and freedom of oice concerning sexual health and
reproduction disregard citizens’ rights, the Iranian constitution, and
Iran’s international commitment under the Cairo Plan of Action
(1994) and the World Health Organization whi declared:
… obligations to respect the right to health include a State’s obligation to ‘refrain from
limiting access to contraceptives and other means of maintaining sexual and
reproductive health, from censoring withholding or intentionally misrepresenting
health-related information, including sexual education and information, as well as from
preventing people’s participation in health-related maers.’33
Article 44, Section 1 of Bill 446 criminalizes any activities
“promoting” any form of contraception, with violators subject to two
to five years of imprisonment. In short, the State appears willing to
override democratic rights in order to increase the fertility rate. is
is a drastic about-face on the heels of a hugely successful state-run
family planning program that included subsidized contraception and
a massive education program promoting family planning.34
Another very significant ange concerns sterilization. A 2012
fertility survey showed 72 percent of men and women of
reproductive age using some form of contraception. Of these, 29
percent were sterilized (6 percent male and 23 percent female).35 Bill
551
446 bans voluntary vasectomy and tubal ligation except for very
limited health reasons. Whether done privately or in a state facility,
su procedures have been and are highly regulated, and restricted
to persons thirty and older with two or more ildren. In addition,
individuals are required to undergo counselling to ensure their
awareness of all the implications of their decision.36 e new policy,
whi essentially bans these procedures, creates a vacuum,
particularly for those who for various medical reasons cannot use
other forms of contraception.
Denying information on and access to any safe and effective
method of contraception will inevitably lead to an increase in
unwanted pregnancies, and puts younger people especially at risk
since the new population policy will prevent them from accessing
health information on sexuality and reproduction. Unwanted
pregnancies are highly detrimental to psyological and physical
well being.37
As concerns abortion, access to abortion in Iran has always been
restricted to cases where the pregnancy poses a danger to the
mother’s life.38 is has meant that most abortions were performed
illegally. However, persistent advocacy by medical personnel dealing
with the health consequences of boted illegal and self-
administered abortions resulted in a gradual easing of regulations.
Between 2000 and 2005, abortion was permied when certified as
medically necessary by two doctors for psyological or medical
reasons. Aer the Ahmadinejad government was elected in 2005
abortion restrictions increased once again. It is estimated that 60
percent of the 22,000 abortions performed in 2012 alone were illegal
and likely performed under less than optimal conditions.39 e
proposed law makes abortion subject to even more stringent
conditions; outside of these it criminalizes both abortion
practitioners and patients.
It is well established that, historically, no state has managed to
prevent abortion. ere is no doubt that the rate of illegal—and
552
therefore unsafe and potentially life threatening—abortions will rise
with the passage of the proposed legislation. Countless studies show
that highly restricted access to abortion leads women to seek unsafe
procedures, resulting in high rates of maternal mortality and
morbidity.40 It is estimated that worldwide 47,000 women die ea
year from unsafe abortions and 5 million women are treated for
serious medical complications.41
In fact, Article 45 of Bill 315 obliges the Ministry of Health to
conduct autopsies to “clarify the cause of suspicious death of a
mother, fetus, or infant,” ostensibly to prevent further su deaths.
is directive concerns women’s health advocates, given that it is
widely accepted that 10–20 percent of pregnancies end in natural
miscarriage in the first trimester. Investigations required under
Article 45 of Bill 315 can unduly burden already overextended
women’s health services, not to mention further traumatizing
women experiencing miscarriage. Autopsies in Iran are only done in
cases of crime or suspicious death; the push to include all maternal,
fetal and infant deaths in this category suggests authorities are well
aware that women with unwanted pregnancies are seeking abortion
and even commiing suicide.42 e promotion of this law indicates
the extent to whi the State is determined to ignore women’s rights
to bodily autonomy.
553
Pro-natalism in daily life: the patriaral
agenda
Conservative religious authorities, who consider the traditional large
family the cornerstone of Islamic society, profess deep concern over
the various factors underpinning the declining birthrate. e average
age of marriage for women in Iran has increased to 23 (it is higher
for men), and, according to the 2006 national survey, 10 percent of
women aged 15 to 34 had never married. Equally alarming to
conservative authorities is the climbing divorce rate, especially
among the urban population. Authorities aribute all these trends to
pervasive ‘westernization’ and some have gone so far as to offer
statistics on the number of ildren that have not been conceived. 43
ey also blame women’s pursuit of higher education and workforce
participation for delayed marriages and have imposed gender quotas
for university entrance and gender segregation within academia, in
some cases barring women from certain academic, presumably
‘masculine,’ high-income fields.44 e State has also established small
colleges and religious educational institutions in the smaller towns
to discourage women pursuing higher education from aending
urban universities (cities being alleged hotbeds of westernization).45
e bills and the SCCR resolution also use employment
regulations to encourage marriage and fertility. Bill 315 prioritizes
employment for men who are married with ildren, followed by
married men and finally single men. ese provisions leave out
women entirely, except for jobs in State-defined gender segregated
arenas, su as medicine.
e preoccupation with promoting early marriage and
ildbearing for women is very clear in the guidelines issued by the
supreme leader aer the introduction of Bill 446, as noted earlier.
554
ere has been no consideration of the reasons women are
increasingly wary of commiing to family building as defined by
law and State gender ideology, despite numerous studies showing
women’s dissatisfaction with their inferior legal status and
insecurity within marriage under current family law.46
ere appears to be lile institutional inclination toward legal
reform or democratization of family institutions that might render
marriage a more aractive option for contemporary Iranian women
or their male counterparts. Instead, there are moves to decrease
women’s access to divorce, whi is already very limited; and to
promote polygamous marriages through a bill ironically called the
“family protection law,” (proposed by a Parliament that includes 65
(out of 290) male members with two or more wives). is actually
contravenes the International Covenant on Civil and Political Rights
(ICCPR), whi Iran has ratified.47 It appears that the regime
believes limiting women’s educational and economic opportunities
and their rights within marriage will stabilize marriage and increase
fertility. is is alarming even to religious conservative and pro-
regime women, who have joined with reformist and secular women
to fight the bill.48
Women’s health also appears to be of lile concern in the push to
lower the age of marriage. In recent years, underage marriages, with
their aendant risks for ild brides, have increased. According to
2014 statistics, 22,641 girls aged 10 to 14 were married; some
marriages of girls younger than 10 have been registered.49 Su
marriages, contracted by fathers and guardians, oen for money,
cannot be seen as anything other than forced; they essentially
constitute the legal rape of ildren (Justice for Iran 2013, 2015).
Despite widespread public abhorrence, nothing has been proposed
by religious authorities or Parliament to definitively put an end to
this practice.50
Overall there is a conspicuous absence of concern for women’s
and citizens’ rights regarding bodily integrity, marriage, and
555
reproductive autonomy. e new population policy not only disrupts
democratization and the principle of expanding human rights, but
with its single focus on increasing birth rate creates conditions
whi ultimately threaten women’s and girls’ health.
556
Conclusion
Bills 446 and 315, and the guidelines put forward by the Office of the
Supreme Leader, upended previous population policies whi saw a
huge decline in the country’s fertility rate. e ief stated concern
of the regime is to raise the national fertility rate and ensure a larger
population, whi they view as necessary to ensuring Iran’s political
and economic independence. While a concern with population size
and its impact on the nation’s future is a prerogative of any State,
the means by whi a government implements population policy is
indicative of the significance it affords human rights. An analysis of
the various articles of Bills 315 and 466, along with the speees of
pro-natalist policy proponents, shows the Iranian State’s dismissive
view of individual rights. Because the State is well aware of
widespread disapproval of the bills by mu of the population, it has
been subtle and strategic in embedding its pro-natal directives into
the policies of various ministries; though Bill 466 is still sidelined
with the Council of Guardians, the Council supports it in speees,
and ministries—whi need Parliamentary approval for their budgets
– cooperate to incorporate new population policies into their annual
plans. In this way the State can avert direct criticism while
ministries will have to bear the brunt of it.
Iran is signatory to various international agreements, including
the ICPD Plan of Action (Cairo 1994), through whi it has pledged
to guarantee support for reproductive rights and access to safe
contraception, health information, and sexual and reproductive
health services. Yet many aspects of the pro-natalist policies
contradict the principles of the ICPD Plan of Action and other
widely accepted international conventions on reproductive rights
and sexual health. ese compromise women’s and families’ health
557
and dignity. e irony is that the new policy follows decades of
family planning in Iran that, on its own terms, was a stunning
success. But conservative leaders, who consider declining fertility
highly problematic, have tied the drop in fertility to the rise in
female education, feminism, and women’s rights activism. Hence, in
concert with its pro-natal initiatives, the State has devised policies
whi, as described in this apter, broadly seek to limit women’s
agency through legal and social directives whi constrain their
educational, cultural and economic opportunities. e common
thread behind these policies is an ideological impulse to reinforce
patriary.
Since its establishment in 1979, the Islamic Republic’s particular
religious ideology and identity have been largely constructed around
women’s bodies and women’s social and reproductive roles in the
family. Ideologically driven pro-natalist policies follow this paern.
eir aim is mu broader than the quest for higher fertility; it
includes the revitalization of Iran’s so-called traditional ‘Islamic’
family structures, whi conservative authorities claim are a
cornerstone of Iranian Islamic society.
Many experts doubt the regime and its ill-conceived policies will
succeed in anging the trend towards urbanization and smaller
families. Nonetheless, women have mu to lose under the current
conditions and, especially, under the proposed legal, structural, and
cultural conditions this policy creates. e preceding analysis of the
pro-natal policies clearly shows that the rights of citizens,
guaranteed by the Iranian constitution and various international
agreements signed by Iran, are being overruled in the State’s zeal to
promote its own ideological and political agenda under the guise of
demographic engineering.
558
Notes
1 Allowing for minor disagreements over estimates, fertility dropped from 7 births per
woman in 1980 to approximately 1.8 in 2014. e Moundi Index has put the rate as low
as 1.33 for 2014 (www.indexmundi.com/facts/indicators/SP.POP.GROW); Iranian
officials put the figure between 1. 5–1.7. Regardless, the major concern is that it is below
replacement.
2 e Supreme Leader provides religious and ideological guidance and, along with his
council, oversees the functioning of the elected government and the elected Parliament.
3 Hoodfar, Homa. “Population Policy and Gender Equity in Post-Revolutionary Iran” in
Family, Gender, and Population in the Middle East: Policy in Context, Carla Makhlouf
Obermeyer (ed.). Cairo: e American University in Cairo Press, 1995.
4 Aghajanian, Akbar. “Socioeconomic Modernization, Status of Women and Fertility
Decline in Iran” in Essays on Population Economics, ed. G. Gaburro and D.L. Poston.
Milan: CEDAM, 1991: 334–51; Aghajanian Akbar and Mehryar, Amir H. “Fertility
Transition in the Islamic Republic of Iran: 1976–1996.” Asia-Pacific Population Journal,
(1999) vol.14, No. 1: 21–42.
5 Hoodfar, “Population Policy and Gender Equity in Post-Revolutionary Iran.”
6 Government prenatal policies included promoting early marriage and larger families.
Fertility increased rapidly to 3.4 despite su mitigating factors as the Iran–Iraq war
(1981–7).
7 Hoodfar, Hooma. “Bargaining With Fundamentalism: Women and the Politics of
Population Control in Iran.” Reproductive Health Maers 8 (1996): 30–41; Hoodfar,
Hooma. Volunteer Health Workers in Iran as Social Activists: Can ‘Governmental Non-
Governmental Organizations’ Be Agents of Democratisation?” Occasional Papers No.
10. London: WLUML, 1998.
8 Hoodfar and Asadpour, “e Politics of Population Policy in the Islamic Republic of
Iran.” 1–17; Inhorn, M. and Tremayne S. (eds). Islam and Assisted Reproductive
559
Technologies: Sunni and Shia Perspectives. New York: Berghahn Books, 2012.
9 Hoodfar, Hooma. “Bargaining With Fundamentalism: Women and the Politics of
Population Control in Iran.” Reproductive Health Maers 8 (1996): 30–41; Hoodfar,
Hooma. Volunteer Health Workers in Iran as Social Activists: Can ‘Governmental Non-
Governmental Organizations’ Be Agents of Democratisation?” Occasional Papers No.
10. London: WLUML, 1998.
10 ese rights have been discussed in various solarly publications. See Grover (2011),
Cairo Program of Action, ICPD, in 1994; Center for Reproductive Rights (2009), Corrêa
and Petesky (1994), e Women’s Declaration on Population Policy (1993). Accessed
September 28, 2015. Available at
www.tandfonline.com/doi/pdf/10.1080/096145249100077121.
11 Population policies generally constitute laws and services, including financial support
and incentives and medical services enacted purposefully by states with the intention of
influencing fertility rates and modifying citizen’s reproductive behavior to aieve
desirable population levels.
12 Goldstone, J., Kaufmann E. and Duffy To, M (eds). Political Demography: How
Population Changes Are Reshaping International Security and National Politics. Oxford:
Oxford University Press, 2012.
13 Đorić, G. and Gavrilović D. “Between Pro-Natalist Population Policy and Women’s
Reproductive Rights: e Analysis of Exposure of the Two Discourses in Press Media
Aer 2000,” Sociologija, vol. 48 (2006): 73–95. Accessed July 10, 2016. Available at
www.doiserbia.nb.rs/img/doi/0038-0318/2006/0038-03180601073D.pdf.
14 Bo, G. “Racism and Sexism in Nazi Germany: Motherhood, Compulsory Sterilization
and the State. “Journal of Women in Culture and Society vol. 8 (1983): 400–42; Afshar,
Haleh. “Khomeini’s Teaings and eir Implications for Women,” Feminist Review vol.
12 (1982): 59–72.
15 Salehi-Isfahani, Djavad. “Human resources in Iran: Potentials and allenges,” Iranian
Studies vol. 38 (2005): 117–47; Salehi-Isfahani, Djavad. “Iran’s ird Development Plan:
A reappraisal,” Department of Economics, Virginia Polytenic Institute and State
University, 2006; Salehi-Isfahani, Djavad. “From Health Service Delivery to Family
Planning: e Changing Impact of Health Clinics on Fertility in Rural Iran,” Economic
560
Development and Cultural Change 61 (2013): 281–309; Habibi, N. “e Economic Legacy
of Mahmoud Ahmadinejad,” The Middle East Brief 74 (2013). Accessed July 10, 2016.
Available at www.brandeis.edu/crown/publications/meb/MEB74.pdf.
16 e divorce rate has roughly tripled between 2000 and 2010. Nationwide, there is one
divorce for every seven marriages; in Tehran, the ratio is app. one divorce for every four
marriages (Mohammadi and Tai 2014).
17 Hoodfar and Asadpour. “e Politics of Population Policy in the Islamic Republic of
Iran,” 1–17; Inhorn, M. and Tremayne S. (eds). Islam and assisted reproductive
technologies: Sunni and Shia perspectives. New York: Berghahn Books, 2012.
18 e Supreme Council of the Cultural Revolution (SCCR) was established by decree of
Ayatollah Khomeini in 1980, initially to Islamize the universities and their curricula.
ough the SCCR is highly criticized as an unconstitutional body, its power has
expanded over the decades and the Council debates and ratifies resolutions legally
defined as “governmental policy,” whi in practice carry the force of law.
19 (Resolution 8423/91) National Strategies and Actions to Prevent the Fall in Fertility Rates
and Promote eir Growth in Accordance With Islamic Teaings and National
Strategic Requirements (8423/91).Accessed August 28, 2015. Available at
www.iranculture.org/fa/simpleView.aspx?provID=1822.
20 (Resolution 8423/91) Article 2, paragraph 2 and Article 3, paragraph 8.
21 (Resolution 8423/91) Article 2, para 3.
22 e population in 2012 was around 78 million.
23 Fars News Agency, 25 July 2012, available at: www.farsnews.com/newstext.php?
nn=13910504000912 (retrieved July 1, 2014); see also the website of Ayatollah Khamenei,
Spee before government officials, July 24, 2012. Accessed November 17, 2015.
Available at hp://farsi.khamenei.ir/spee-content?id=20534.
24 Hoodfar and Asadpour. “e Politics of Population Policy in the Islamic Republic of
Iran.” 1–17; Inhorn and Tremayne. Islam and assisted reproductive tenologies: Sunni
and Shia perspectives.
25 For a more detailed account see Amnesty International (2015). Although this Bill
tenically has not become law, the authority of the SCCR is su that many of the
561
policies are already implemented.
26 e Bill to Increase Birthrate and Prevent the Fall in Fertility Rate (Bill 446) was
proposed on April 20, 2014 and passed first reading on May 11, 2014 by a parliamentary
vote of 106–101. It was finalized in August 2014 and repeals the 1993 Family Planning
Act.
27 e Council of Guardians oversees Parliament and has extensive legislative and
executive powers, including the authority to approve or reject legislative acts based on
their compatibility with Islamic law and constitutional provisions. It also has the
authority to disqualify presidential, Parliamentary and other candidates.
28 Bo. “Racism and Sexism in Nazi Germany: Motherhood, Compulsory Sterilization and
the State.” 400–42; Afshar. “Khomeini’s Teaings and eir Implications for Women,” 59
–72.
29 For various ways that, this poorly worded law can be used against medical personnel see
Justice for Iran (2014) “Using Rights to Do Wrong” 10.
30 See Amnesty International (2015) for more detail.
31 For more detail on this see Justice for Iran (2014).
32 Russo, N. and David, H. “When Pregnancies are Unwanted.” Prochoice Forum (2002).
Accessed July 10, 2016. Available at www.prooiceforum.org.uk/psy_ocr2.php; Monea,
Emily and omas, Adam. The High Cost of Unintended Pregnancy. Washington D.C.:
Brookings, 2011.
33 General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art.
12 of the Covenant). E/C.12/2000/4 on August 11, 2000. Available at
hp://apps.who.int/disasters/repo/13849_files/o/UN_human_rights.htm; (Retrieved July
1, 2014). See also the Interim report of the Special Rapporteur on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health
(A/66/254), August 3, 2011, at para 6 (quoted in Amnesty International, 2015).
34 e previous program trained some 100,000 health volunteers across Iran to provide
contraceptive education and pre and postnatal care (see Hoodfar 2010).
35 See Erfani 2015a.
562
36 Hoodfar and Asadpour. “e Politics of Population Policy in the Islamic Republic of
Iran.” 1–17.
37 Shah, I. and Ahman, E. “Unsafe Abortion: Global and Regional Incidence, Trends,
Consequences, and Challenges,” J Obstet Gynaecol Can 31(2009): 1149–58; Sedgh, G. et
al. “Induced Abortion: Estimated Rates and Trends Worldwide,” The Lancet 370 (2007):
1338–45. Accessed July 10, 2016. Available at www.thelancet.com/article/S0140-
6736(07)61575-X/abstract.
38 Abortion laws were slightly liberalized under the Shah’s regime in the 1970s. Aer the
Islamic Republic was established abortion was criminalized. During the late 1990s with
the advent of the family planning program and the rise of the reproductive rights
movement restrictions were slightly loosened. e new policy imposes mu more
stringent restrictions (Erfani 2015b).
39 Erfani. “Curbing Family Planning in Iran: an Appraisal of Bill 446,” 317–18; Erfani, A.
“Induced Abortion in Tehran, Iran: Estimated Rates and Correlates,” International
Perspectives on Sexual and Reproductive Health, 37(2011): 134–42.
40 Shah and Ahman. “Unsafe abortion: Global and regional incidence, trends,
consequences, and allenges.” 1149–1158; Center for G. Sedgh, S. World Health
Organization. Unsafe abortion: global and regional estimates of incidence of unsafe
abortion and associated mortality in 2003, 5th edition. Geneva: World Health
Organization, 2007. Accessed September 4, 2016. Available at
www.who.int/reproductivehealth/publications/unsafe_abortion/9789241596121/en/.
41 e U.N. Special Rapporteur on the right to health has further stipulated: “Criminal laws
penalizing and restricting induced abortion are the paradigmatic examples of
impermissible barriers to the realization of women’s right to health and must be
eliminated. ese laws infringe women’s dignity and autonomy by severely restricting
decision-making by women in respect of their sexual and reproductive health.
Moreover, su laws consistently generate poor physical health outcomes, resulting in
deaths that could have been prevented, morbidity and ill health, as well as negative
mental health outcomes, not least because affected women risk being thrust into the
criminal justice system. Anand Grover, Interim Report of the Special Rapporteur on the
563
right of everyone to the enjoyment of the highest attainable standard of physical and
mental health. U.N. Doc. No. A/66/254 (2011), para. 11.
42 Justice For Iran (2014) Using Rights to Do Wrong. Submission to the United Nations
Working Group on Discrimination against Women in Law and in Practice.
43 In response to the 2015 Amnesty International report pro-natal proponents noted that
4400 ildren annually are NOT born to Iranian couples due to delayed age at marriage
(see Mahyarsabouri hp://mehrkhane.com/fa/news/17657/).
44 See Golkar (2013), Amnesty International (2014): 8–9. Accessed September 4, 2016.
Available at www.amnestv.org/en/librarv/info/MDE13/015/2014/en.
45 Hoodfar, Homa and Sadr, Shadi. “Islamic Politics and Women’s est for Gender
Equality in Iran.” Special Issue Third World Quarterly: The Unhappy Marriage of
Religion and Politics: Problems and Pitfalls for Gender Equality 31 (2010): 885–903.
46 Mir-Hosseini, Z. “Broken Taboos in Post-Election Iran.” Middle East Report Online 46
(2009). Accessed July 10, 2016. Available at www.merip.org/mero/mero121709; Mir-
Hosseini, Ziba and Hamzic Vanja. Control of Sexuality: The Revival of Zina Laws in
Muslim Contexts. London: WLUML, 2010; Bariklou, AR. “e Wife’s Right of Divorce
on the Basis of the Delegation Condition Under Islamic and Iranian Law.” International
Journal of Law, Policy and the Family 5 (2011): 184–98. Accessed July 10, 2016. Available
at hp://lawfam.oxfordjournals.org/content/25/2/184.short; Detailing these is beyond
scope of this discussion, however, Iranian women’s magazines of all political stripes
ronicle women’s dissatisfaction (see Hoodfar 1999). Dissatisfaction with family law
underpins the 2006 women’s movements and civil society campaign One Million
Signatures for the Repeal of Discriminatory Laws
(hp://fordhampoliticalreview.org/280/). See Fariba Hajalio on reasons for divorce in
Iran www.ghatreh.com/news/nn20472598/ (accessed August 28, 2015). See also the
Amnesty International report, Iranian Women Fight Controversial ‘Polygamy’ Bill
(November 30, 2011). Accessed September 4, 2016. Available at
www.amnesty.ca/news/news-item/iranian-women-fight-controversial-
%E2%80%98polygamy%E2%80%99-bill; also Sahar Sepehri. Iran – Women Fight
Polygamy Proposal. (MR No. 2; also February 1, 2010). Accessed September 4, 2016.
564
Available at www.violenceisnotourculture.org/content/iran-women-fight-polygamy-
proposal#sthash.WDcrGBYq.dpuf.
47 Article 23 of the ICCPR stipulates that states must ensure that “men and women have
equal rights when marrying or at the dissolution of marriage” (IA 2011).
48 Under Iran’s civil code women seeking divorce need to prove they are facing
“unbearable hardship,” though men can divorce without providing any reason. Men also
have the exclusive right to marry up to four wives, and to enter into ‘temporary
marriages.’
49 e Islamic Republic of Iran, Article 1041 of the Civil Code states that marriage of girls
before the age of 13 and boys before the age of 15 is contingent upon the permission of
the guardian and upon the condition of the ild’s best interests as determined by a
competent court. In the constitution the age of maturity for girls remains 9 while for
boys it is 14.
50 See Ava Homa 2014. e Challenge of Forced Child Marriage in Iran. July 15, 2014.
Accessed September 4, 2016. Available at
hp://rudaw.net/english/middleeast/iran/15072014. For more details see Justice for Iran
submission to U.N. 2014.
565
Selected Bibliography
Afshar, Haleh. “Khomeini’s teaings and their implications for
women.” Feminist Review vol. 12 (1982), 59–72.
Aghajanian, Akbar and Mehryar, Amir H. “Fertility transition in the
Islamic Republic of Iran: 1976–1996.” Asia-Pacific Population
Journal vol. 14, No. 1 (1999), 21–42.
Aghajanian, Akbar. “Socioeconomic modernization, status of women
and fertility decline in Iran” in Essays on Population Economics,
ed. G. Gaburro and D.L. Poston. Milan: CEDAM, 1991, 334–51.
Center for Reproductive Rights. Reproductive Rights are Human
Rights. New York: CFRR, 2009. Accessed September 4, 2016.
Available at
www.reproductiverights.org/sites/crr.civicactions.net/files/docu
ments/RRareHR_final.pdf.
Corrêa, Sonia and Petesky, Rosalind eds. Reproductive and Sexual
Rights: A Feminist Perspective. London: Zed Books, 1994.
Erfani, Amir. “Low fertility intention in Iran: e role of aitudes,
norms, and perceived behavioral control.” Department of
Sociology, Nipissing University, 2015. Accessed September 4,
2016. Available at hp://paa2014.princeton.edu/papers/140343.
Goldstone, Ja A., Kaufmann, Eric P. and Duffy To, Monica. (eds).
Political Demography: How Population Changes Are Reshaping
International Security and National Politics. Oxford: Oxford
University Press, 2012.
Grover, Anand. Interim Report of the Special Rapporteur on the Right
of Everyone to the Enjoyment of the Highest Attainable Standard
of Physical and Mental Health. U.N. Doc. No. A/66/254 (2011),
para. 11, 2011. Accessed September 4, 2016. Available at
hp://daccess-dds-
566
ny.un.org/doc/UNDOC/GEN/N11/443/58/PDF/N1144358.pdf?
OpenElement.
Hoodfar, Homa. “Population policy and gender equity in post-
revolutionary Iran.” in Family, Gender, and Population in the
Middle East: Policy in Context, Carla Makhlouf Obermeyer (ed.).
Cairo: e American University in Cairo Press, 1995.
Hoodfar, Homa. “Bargaining with fundamentalism: women and the
politics of population Control in Iran.” Reproductive Health
Matters vol. 8 (1996), 30–41.
Hoodfar, Homa. “Health as a context for social and gender activism:
female volunteer health workers in Iran.” Population and
Development Review vol. 36, no. 3 (2010), 487–510.
Hoodfar, Homa. “Volunteer health workers in Iran as social activists:
can ‘governmental non-governmental organizations’ be agents of
democratisation?” Occasional Papers No. 10. London: WLUML,
1998.
Hoodfar, Homa and Asadpour, Samad. “e politics of population
policy in the Islamic Republic of Iran.” Studies in Family
Planning vol. 31, no. 1 (2000), 1–17.
Hoodfar, Homa and Sadr, Shadi. “Islamic politics and women’s quest
for gender equality in Iran.” Special Issue Third World Quarterly:
The Unhappy Marriage of Religion and Politics: Problems and
Pitfalls for Gender Equality vol. 31 (2010), 885–903.
Hossinie-Tehrani, Haj Sayd Mohammad-Hossien. The Reduction of
Population: A Major Catastrophe for the Muslim Population.
Tehran: Hekmat Publications/Institute for Translation and
Propagation of Islamic sciences, 1994/1415 Islamic calendar.
Justice for Iran. Using Rights to Do Wrong: Women’s Reproductive
and Domestic Labour at the Service of Nation-Building.
(Submission to the United Nations Working Group on
Discrimination against Women in Law and in Practice, 2014).
Justice for Iran. 2015. Veiled and Wed: Enforced Hijab Laws, Early
Marriages, and Girl Children in the Islamic Republic of Iran.
567
Submission to the U.N. Commiee on the Rights of the Child,
71st Pre Sessional.
Mir-Hosseini, Ziba and Hamzić Vanja. Control of Sexuality: The
Revival of Zina Laws in Muslim Contexts. London: WLUML,
2010.
Monea, Emily and omas, Adam. The High Cost of Unintended
Pregnancy. Washington D.C.: Brookings, 2011.
Shadpour, Kamel. The PHC Experience in Iran. Tehran: United
Nations Children’s Fund, 1994.
568
17
Women’s Rights in the Middle East
Constitutions and consequences
Anicée Van Engeland1
569
Introduction
e importance of a gender-inclusive constitution has been stressed
by many solars: the argument put forward to support the inclusion
of gender equality and women’s rights is the perception that a
constitution, as the babone of a legal system, captures the
aspirations of a society and is a source of rights.2 Constitutionally
guaranteed rights and gender-inclusive constitutional language are
crucial to improve women’s experience of law, politics, society, and
economy. is apter illustrates the need to further the inclusion of
gender equality and women’s rights in Middle Eastern constitutions
in order to ensure that women benefit from equal opportunities. As
stressed by the U.N. rapporteur Rashida Manjoo:
e explicit prohibition of discrimination on the basis of sex and gender in the
constitution would not only give women a practical tool to allenge inequality more
effectively, but would also serve to educate and raise awareness among the […] society
as a whole.3
Several sub-issues emerge when discussing the inclusion of gender
and women’s rights in the constitutions of the Middle East: How to
include gender? How are gender and women’s rights defined? Is it
necessary to adopt a pluralist approa and take into account Islamic
definitions of gender? e diverse understandings of the concepts of
gender equality and women’s rights make it difficult for any solar
to draw a perfectly inclusive constitution. For example, gender
equality and women’s rights are sometimes approaed from an
Islamic perspective focusing on the protection of the family; this
perspective might create a sizophrenic situation in whi women
are constitutionally empowered in the public sphere, while being
ignored in the private sphere. is raises the issue of the
constitution’s domain: should constitutions only consider the public
570
sphere or should they extend to the private sphere? is question is
especially crucial when it comes to the struggle against domestic
violence.
Diversity also is found in the multiplicity of sources a constitution
might refer to. Some constitutions, su as the one in Lebanon, are
secular in the sense that they protect freedom of religion and that
there is no State religion (Article 9). Other constitutions, like the
Iranian and Saudi Arabian constitutions, rely on Islam as a or the
main source of law (Article 2 and Article 1 respectively); the
constitution of the UAE also includes customary law as a source of
law (Article 32). e constitution in these cases becomes a referee
between competing sources of law.
Speaking of gender, human rights and pluralism in Middle Eastern
constitutions leads to questioning the constitutional limits on the
inclusion of these principles. is apter will suggest strategies to
best include gender equality and women’s rights in a Middle Eastern
constitution. First, a survey of some existing Middle Eastern
constitutions will be conducted. Second, the limits and then, third,
the consequences of the partial integration of gender equality and
women’s rights will be examined. A fourth section will look into
responses developed by different States, looking at the three
branes of power. A final section will examine agents and strategies
for dealing beer with gender in these constitutions. is approa
will provide an overview of the level of inclusion of gender in
constitutions; it will allow for an understanding of why some
countries are reluctant to include gender and how it is manifested.
e consequences of this partial inclusion or absence of inclusion
also will be looked at before examining potential solutions.
571
A comparative analysis of gender in Middle
Eastern constitutions
Women are addressed both directly or indirectly in the constitutions
of Middle Eastern countries. For example, the preamble of the
constitution of the Islamic Republic of Iran speaks to men and
women equally, and has a section dedicated to women and their role
in society and in the home. e constitution also speaks of women’s
rights: Article 3(14) guarantees equality of all before the law as a
woman’s right, and Article 21 specifically details a range of women’s
rights.
e current Yemeni Constitution provides equality for all citizens
and rejects discrimination based on sex (Article 27) without
mentioning women or gender. Article 5 also speaks of respect for
international human rights, whi would include all conventions
pertaining to gender. e 2015 dra of the Yemeni Constitution
(draing of whi is still underway as it is rejected in its current
form by Houthi representatives) also provides rights and protection
to women: it ensures women’s participation in public life (Articles
13.4; 38; 76; 95; 151; 236) and Article 10 guarantees respect for the
Universal Declaration of Human Rights and other human rights
conventions, treaties and principles—this would include conventions
pertaining to women. In addition, Article 57 states that
[T]he State shall be commied to the support and welfare of women, enactment of laws
that would ensure protection of women and advancing their status in society. e State
shall also eliminate negative cultural and social norms that demean the dignity of
women.
In short, therefore, the Yemeni State would have a positive obligation
to support equality under this constitution.
572
Article 23 of the 2012 Syrian Constitution also guarantees
women’s rights in the public life. Its preamble ensures the protection
of human rights, whi are then detailed in Title II. As mentioned
above, the Iraqi Constitution’s preamble refers to women as well:
Article 20 states that “Iraqi citizens, men and women, shall have the
right to participate in public affairs and to enjoy political rights
including the right to vote, elect, and run for office.” Article 49.4 says
that “[T]he elections law shall aim to aieve a percentage of
representation for women of not less than one-quarter of the
members of the Council of Representatives.” Article 26 of the Saudi
Constitution states that “[T]he state protects human rights in
accordance with the Islamic Shari`a,” advertising its difference by
supporting an Islamic understanding of the concept of rights.
ere are, in short, different levels of inclusion of gender equality
and women’s rights in Middle Eastern constitutions. Some
constitutions have taken positive measures to include women’s
rights (Yemen 2015, Iran); some will only ensure equality for all with
no mention of gender (UAE, Jordan, Lebanon, Iran, Kuwait, Yemen
2015); and others will only consider gender in the context of non-
discrimination (Bahrain, Iraq, Syria). Yemen and Bahrain are
examples of constitutions that tie in gender to Islam while Saudi
Arabia does not refer to women in any manner. It also seems that in
some existing Middle Eastern constitutions gender equality can be
inferred from the general principle of equality. A conclusion is that
Middle Eastern constitutions tend to grant protection to some classes
of women (the mother and the politician being the most recurrent),
but do not identify gender as a protected class. e constitutions also
address public discrimination while ignoring private discrimination
(except for Article 128 of the 2015 Yemen Constitution and Article 29
(4) of the Iraqi Constitution that stresses that “[A]ll forms of violence
and abuse in the family, sool, and society shall be prohibited”).4
Several constitutions already have been amended to claim equality
before the law without specific reference to gender: Bahrain in 2002,
573
Palestine in 2003 and Qatar in 2003. In Yemen, women demonstrated
in 2011, alongside men, demanding constitutional anges in favor of
equal rights.
574
Limited inclusion of gender equality and
women’s rights
It is noteworthy that women rights can be aligned with duties or are
limited in some constitutions. For example, Article 2 of the Iranian
constitution subjects all rights to the respect of Islam. is means
that any right granted is subjected to the respect of Islam. Women’s
rights and gender equality are therefore conditioned to undefined
religious norms. Article 5(b) of the Bahrain Constitution states that
“[T]he State guarantees reconciling the duties of women towards the
family with their work in society, and their equality with men in
political, social, cultural, and economic spheres without breaing
the provisions of Islamic canon law (Shari`a).” Article 2 of the Iraqi
Constitution sets similar limits when stating that “Islam is the
official religion of the State and is a foundation source of legislation:
A. No law may be enacted that contradicts the established provisions
of Islam.” Su religious-oriented approa to the constitution limits
all rights granted, and in the case at hand, may override the principle
of equality stated in Article 14 of the Iraqi Constitution that women
and men will be equal. Article 4 of the 2015 Yemeni Constitution
states that Islam is the source of the legislation, therefore seing the
same limit to gender equality and women’s rights: no gender-
oriented constitutional clause or law can contradict Islam. e
provision of Islam would then supersede the principle of equality
claimed in the constitution or in the law. Su limitations make it
difficult to make or amend a constitution as religion dictates limits to
human rights.
A particularity of most Middle Eastern constitutions is their
consideration of the private role of women. For example, Article 9 of
575
the Kuwaiti Constitution protects motherhood. Article 128 of the
2015 Constitution of Yemen states that:
[W]omen have full civil, political, economic, social and cultural rights without
discrimination. e State shall be commied to empower women to exercise the rights
of equal citizenship, and protect them from of all forms of violence, all inhuman
practices and enable them to reconcile between their family duties and the requirements
of their jobs. Legislation shall be enacted accordingly to realize these aims.
ere is then a separation between the private sphere and the public
sphere: the constitution grants public rights, su as political rights,
to women; it also grants protection to the family unit in the private
sphere. Another example is to be found in the preamble of the
Iranian Constitution that protects the role of the woman as a mother.
is distinction between the private and the public role of women is
problematic from a universal human rights perspective: it draws an
imaginary line between gender equality and women’s rights as
belonging to the public sphere, while the woman as a mother and a
wife is contained to the private sphere. A woman is perceived as
benefiing from universal rights in the public sphere only. In the
private realm, she is protected without any reference to a rights’
paradigm other than Islam. As stated by Suad Joseph, there are
consequences to this division between the private sphere and the
public sphere:
Most constitutions of Arab states identify the basic unit of society as the family. is
suggests the masculinization of citizenship in Arab states is tied to a culturally specific
notion of the citizen as subject. e Arab citizen subject is seen as a patriar, the head
of a patriaral family, legally constituted as the basic unit of the political community
who accrues rights and responsibilities concomitant with that legal status.5
is brief comparative overview demonstrates that ea Middle
Eastern constitution approaes women, gender equality and human
rights differently: some actively promote women’s rights while
others aempt a more gender-neutral tone to promote equality for
all. e purpose of this comparison is to get a beer understanding
of the obstacles in constitution-making and constitution-amending
576
in the Middle East when it comes to including gender. In times when
constitution-making is central to rule of law programs, it is
important to understand the theoretical and practical issues aaed
to gender equality in the region. e main issue remains the
pluralism of views on how gender and women’s rights can be
included; another maer is to know how to include gender equality
and women’s rights in a Middle Eastern constitution when there are
limitations that are caused by religious or customary factors. In
order to address these issues, it is necessary to first look into the
consequences of the limited inclusion of women’s rights and gender
in Middle Eastern constitutions.
577
Impact of the limited inclusion of gender and
women’s rights
Constitutions that approa gender neutrally by speaking of
equality, constitutions that do not include gender or constitutions
that propose an Islamically-conditioned vision of women’s rights
have different consequences. In some circumstances, non-
constitutional law has filled the void. For example, the Jordanian
legal system, whi is a mix of civil law and Islamic law, seeks to
support women’s rights despite the absence of gender equality in the
constitution. Article 6 of the Constitution promotes equality of all
before the law without mentioning gender or sex. Article 22 speaks
of equal opportunity to public appointment, without mentioning
women. Consequently, laws have expanded on or clarified the
Constitution. For example, a 2003 amendment to Article 11 of the
electoral law of 2001 implements quotas in Parliament to ensure the
representation of women: it reserves 6 seats out of 110 to women. In
2012, it went up to 15 seats.
While this law has had a positive impact, Jordan still faces many
legal issues when it comes to gender equality and women’s rights.
For example, the Penal Code’s Article 340 leaves it to the judge to
decide the right punishment with the opportunity to be lenient with
the perpetrator.6 is example is interesting as it links together sex,
gender and women’s rights in a complex matrix of social practices
and religious beliefs. Sex or perceived inappropriate sexual behavior
(whether sexual or not) becomes the justification for gender
inequality. is is not only a direct consequence of the la of a
strong gender statement in the constitution, it is also due to a strong
legal stance on the issue of tradition per Article 14 of the
Constitution. Social norms influence law-making and interpretation,
578
as well as the impact of Shari`a courts in operation. Despite reforms
and the creation of a special court to prosecute honor crimes, the
struggle to ange social norms is still key in terms of addressing
traditional and customary beliefs and values that undermine
progress toward gender equality.7 is example clearly demonstrates
why it is important to have a constitution with clear recognition of
gender’s role in the public and private sphere, reflecting women’s
societal demands and gender equality. Jordan has tried to address the
issue of gender equality through the creation of the Jordanian
National Commission for Women to “support mainstreaming of a
gender-equality perspective in all policy areas and to narrow the gap
between formal anowledgements of women’s rights as detailed by
legislation and actual societal aitudes towards women. ”8
e
Commission has been efficient at formulating solutions for both
public and private issues affecting women, but has had lile legal
effect. e aempt by the Jordanian Appointed Commiee for the
Constitution to include gender in Article 6 of the Constitution, for
example, did not succeed.
e 2015 Yemen Constitution makes a considerable contribution
to women’s rights and is an aempt to promote women’s rights and
gender equality while respecting Islamic and customary law. Yet,
despite the positive narrative of Article 128, the distinction between
the woman in her private role and the woman in a public role
demonstrates that gender equality is not yet a constitutional priority.
Indeed, while women’s rights are affirmed in the public sphere, the
constitution does not address deep-rooted discriminations that are to
be found in the Criminal Code, the Personal Status Act and many
more laws affecting women in the non-public sphere.
Iraq provides another interesting example of the disconnect
between gender and the legal system due to a constitution that does
not actively promote gender equality, except in its Article 14 that
ensures gender non-discrimination. Article 2 of the Constitution
mainly has an effect on the private sphere: it limits women’s rights
579
in the private sphere while protecting women’s political rights (as
illustrated by Article 49-4). is is illustrated by Article 30 of the
Constitution that protects the family unit; Article 29(b) whi
protects motherhood and the family; and Article 41, whi reinforces
personal status law as interpreted by different Iraqi communities.
e outcome is that family law is still controlled by religious
authorities who are allowed to enforce their law over any unified
domestic legislation.9
is section demonstrates how the la of clear direction or the
existing limitations regarding gender equality and women’s rights in
Middle Eastern constitutions affect the political, legal, social, cultural
lives of women. Su examples show how a theoretical debate about
gender-inclusive constitutions turns into practical issues for women.
e three branes of power have reacted differently to the
allenge.
580
e role of legislative, executive and judicial
power in protecting and promoting women’s
rights and gender equality
Limited constitutional protections for gender equality and women’s
rights have sometimes aempted to be addressed through legislative,
executive, and judicial action. For example, one is the Bahrain
National Plan for the Advancement of Bahraini Women (2013–22)
“contribut[ed] to mainstreaming women’s needs in development
programs.”10 e program is a series of aims with no real
methodology to implement them. It focuses on important maers
su as domestic violence, education, health and the promotion of
women entrepreneurs, but gives few tools to rea its aims in these
domains. It also pursues a more conservative trend by looking at
family stability. While the document makes no mention of gender, it
does speak to equality and women’s rights. e aim is clearly to
empower women and to develop awareness, not only for women’s
rights but also for women’s duties. e fact that women have duties
and the existence of a section dedicated to the family shows how
Bahrain tries to balance Islam with women’s rights. is reflects
Articles 1 and 5b of the Constitution that speak of balancing
women’s political rights with Islam. e approa developed for this
program demonstrates the impact the constitution has on executive
and legislative powers, reflecting the fundamental principles that a
State governs by. Bahrain seeks to find a balance between women’s
rights and family law by imposing a distinction between
empowerment of women in the public space versus the traditional
family roles of the private space. By doing so, Bahrain, like many
countries in the Middle East, seeks to find a solution to the dilemma
581
of reconciling a model of governance that is not local, a
Constitution, with deeply anored beliefs and values.
In Lebanon, the government also has tried to remedy the limited
constitutional protection with the Lebanon National Strategy for
Women in Lebanon (2011–21), whi seeks to address discrimination
between men and women. e current legislation is incomplete and
the la of constitutional guidelines makes it difficult to interpret.
For example, the preamble, Chapter II and Article 14 of the
Constitution speak to the equal rights of all citizens without
mentioning gender. e general interpretation has been to infer
equality between men and women from these articles. Yet, Article 21
then proceeds by stating that “[E]very Lebanese citizen who has
completed his twenty-first year is an elector provided he fulfills the
conditions laid down in the electoral law.” is use of the masculine
‘he’ has led to the conclusion that the concept of citizen only applies
to men, depriving, by extension, women of basic rights. Su
interpretations have been, as a result of this perceived constitutional
injunction, extended to different laws.11 e 2011–21 program
launed by the executive aims at anging these perceptions by
working on equality issues su as education. It has been noted that
the current programs and curriculum are not in line with the
Constitution with regard to human rights and with international
obligations regarding women. Part of the purpose is to ange the
content of the curriculum so that it reflects the equality message of
the Constitution regarding commitment to women’s rights. e
argument is well-known to constitutionalists: one has to look at the
intention of the draers rather than go through a literal
interpretation. e argument put forward is that the draers
intended to guarantee equality and human rights for all citizens. e
ratification of the 1990 Constitutional Amendments support this
view as they contain a paragraph regarding the commitment of
Lebanon to the U.N. Charter and the Universal Declaration of
582
Human Rights.12 One needs to stress, however, that Lebanon ratified
CEDAW with reservations limiting this commitment.
In cases like Iran, looking at the intention of the draers is
insufficient. e draers might have well intended to exclude
women, and those implementing the Constitution also seek to ensure
women do not have access to all their rights. For example, Article
163 of the Constitution has been interpreted in a way to bar women
from becoming judges. ere are therefore interpretative debates:
Article 115 of the Constitution says that “[T]he President must be
elected from among religious and political personalities …” e word
used to speak of personalities is the Arabic term of ‘rajol,’ whi can
be translated as ‘male’ or as ‘personality,’ and has caused a raging
debate in Iran on whether or not women are allowed to run as a
presidential candidate.13 In 2009, the spokesperson of the
Constitutional Court declared that it meant personality, thereby
allowing women to run for president.14 ere is not yet, however, a
consensus on the maer. is illustrates the importance of the
content and interpretation of the constitution. Another example is to
be found in the UAE where the appointment of the first female judge
in 2008 resulted of an equality-oriented reading of Article 35 of the
constitution, whi opens public office to all citizens on the basis of
equality. Based on the fact that the constitution does not exclude
women from becoming judges, interpreters have applied a generic
understanding that guarantees all citizens’ rights to women.
Legislative power has been the impetus to ange that has
happened in Iran. Article 1169 of the Civil Code grants custody of
girls older than seven years and boys older than two years to the
father. e mother loses her custody rights if she remarries. As
women oen have to remarry because of social pressure and for
economic reasons, they ultimately lose custody of their ildren. e
legislature amended the custody law in 1998 aer one particularly
upseing event when a lile girl was placed with her father who
had remarried; he and his spouse abused the infant. e mother
583
complained to the police and the custody judge but the authorities
did not listen to her as she had lost the custody. e ild later died
from starvation and repetitive beatings. Civil society pressured the
government so mu that female MPs proposed an amendment so
that the custody would not automatically be given to the father.
Instead, the facts of the case would be studied carefully with
consideration for the best interests of the ildren, puing an end to
automatically giving ild custody to the father. e law was
amended again in December 2003 so that Iranian women can keep
their sons until the age of seven.
Having looked at the role of the executive and the legislative, it
also is necessary to examine judicial activism on gender. In 2009, the
Kuwait Constitutional Court read gender equality into the
Constitution by deciding that the 1962 law that required a woman’s
male guardian to grant her permission to obtain a passport was
unconstitutional. e court’s reasoning was based on constitutional
guarantees of personal freedom and gender equality. at same year,
the court also declared that female parliamentarians were not
required to wear the veil when in session. e petitioners claimed
they had not violated the 2005 electoral law that stated that women
must respect and comply with Islamic law. e court stated that this
clause of the law was too vague and that the constitution sought to
guarantee the personal freedoms of all.15 is demonstrates how a
judicially active court can interpret and read women’s rights in a
constitution that promotes equality for all.
e mission of amending or draing a constitution reflecting
gender values is not only incumbent to the State, but also on society.
An empowered civil society demanding constitutional inclusions of
gender equality and women’s rights is key to promoting ange.
584
Strategies and recommendations
e support of civil society is, thus, crucial in fixing the gender gap
in the Middle East.16 Beyond governmental programs, judicial
activism and legislative anges, NGOs contributing are critical
agents impacting how constitutions are made and interpreted.17
585
Strategies
Women themselves are constitutional agents and many approa
gender equality and women’s rights along the same lines: they focus
on the role of women in the public sphere. For example, Wafa Bani
Mostafa, a Jordanian Member of Parliament, suggests that women
are equal to men and have the same rights and duties. She also
wishes for the creation of a “meanism to monitor women’s status
and penalize those who violate women’s rights.” Myriam Karouz
Aucar from the Lebanese Commiee on Women’s Affairs at the
Beirut Bar Association also demands equality before the law. Dr
Sallama Al Khafaji from the Iraqi Independent High Commission for
Human Rights has the same request, but also demands positive
discrimination in the public space.18 e constitutionalisation of
gender equality and women’s rights also happens through these
claims and requests.19 e case of Iraq draws aention to this in
terms of constitution-making. From 2003 to 2005, Iraqi women had
the opportunity to take leadership in constitutional anges, and the
outcome was that statutory gender quotas were adopted to ensure
the fair representation of women in political positions.20 e overall
outcome has been positive. Iraq is now one of the countries that has
the highest proportion of women in parliament. However, the
private status of the woman in her home remains unaddressed. Most
anges that are requested or implemented concern the principle of
equality or the representation of women in public. Very few claims
deal with private maers su as personal law or domestic violence.
Yet, addressing private discrimination remains crucial as women’s
rights will not progress until both spheres, public and private, are
addressed.
586
Obstacles to anging the constitutional approa to private and
family maers are found in religion, traditions, and customs. e
reference to Islam and Islamic law in the constitutions of the Middle
East is part of the gender equation. Article 2 of the Iraqi Constitution
claiming all laws pertaining to gender and women’s rights must
comply with Shari`a law led to worries that the Article would be
used to curb women’s rights.21 Declarations su as Ayatollah
Sistani’s in 2003 that “the religious constants and the Iraqi people’s
moral principles and noble social values should be the main pillars of
the coming Iraqi constitution,”22 fueled this fear.23 Another problem
lies with Article 41 that says “Iraqis are free in their commitment to
their personal status according to their religions, sects, beliefs, or
oices, and this shall be regulated by law.” All maers pertaining to
family law and women’s rights in the private sphere are therefore
subjected to personal status laws, whi for Muslims mean the
enforcement of Islamic law or a legal reference to the vague term of
Shari`a.
Article 9 of the Lebanese Constitution links freedom of conscience
to its confessional system. As a result, women are subjected to their
religion’s personal status laws, even as they have some political
rights. e diotomy private/public is yet again present,
aracterized by the absence of a law addressing violence against
women. Solars consider that this perpetuates a form of patriary
through the constitution.24 As a result, many believe constitution-
making and draing processes need to include some focus on private
discrimination or the results will be lost opportunities for women, as
it was in the case of Iraq.25
While Islam might constitute an issue for women’s rights, so too
are traditions and customs. In some Middle Eastern countries, the
protection of family law and the private sphere can find its roots in
su traditions and customs. In the case of Lebanon, but also Jordan
and Syria, for example, it has an impact on honor crimes that
victimize women. Article 562 of the Lebanese Penal Code26 is quite
587
lenient towards crimes of honor,27 similar to Articles 192, 242, and
548 of the Syrian Penal Code.28 ese articles reflect a la of
commitment towards human rights in general and illustrate a
discrepancy between the principle of equality in the constitution and
laws in practice. e existence of su legislation also demonstrates
why the inclusion of gender and women’s rights is important to send
a strong message of commitment to the respect and enforcement of
human rights. Yet, the inclusion of women’s rights in the Iranian and
the 2015 Yemen constitutions shows how this is not sufficient when
women’s rights’ protections are limited by Islamically-conditioned
rights and duties. In terms of strategy, it has become clear that,
besides a greater involvement of women in constitution-draing or
constitution-amending, a greater focus on political rights of women
and a reform of present day discriminatory law are simultaneously
needed.29
Recommendations
Legal reform is a necessary complement to any constitutional reform
or draing as it is key to countering the politics of religion,
traditions and customs.30 A strategy to ange laws inspired by
religion, customs and traditions is, however, a frustratingly long-
term process and with oen limited impacts when carried out in a
non-secular framework.31 An example can be found in Iran where
legal reforms of Islamic law have allowed for limited anges of
marriage, divorce, and custody laws without addressing the roots of
discrimination. Work also needs to be done to win the hearts and
minds of the population.
Some successes for women’s rights include major reforms su as
those on divorce, on custody of ildren, and on judging. By
mobilizing for legal reforms and initiating bills, women have become
agents of ange. at women are now granted divorce, for example,
588
is the fruit of a long social and legal evolution. At the time of the
Shah, there were some aempts to modernize that area of family
law, with lile effect. Under the Islamic Republic of Iran, a 1984 law
granted the permission to a woman to ask for divorce if su a thing
was mentioned in the wedding contract, if the husband agreed, and
if twelve conditions were fulfilled. Later, in June 2000, the Majles
adopted a law establishing nine conditions for the spouse to prove a
deficiency in the union. Proving one of the nine conditions was
enough for a divorce to be granted. Eventually, under social pressure
—spearheaded by women—the situation evolved even further.
Women now can not only ask for divorce but they can also obtain it
at their husband’s expense.
589
Conclusion
It emerges from the foregoing that the constitutional gender-neutral
approa implicitly favors maintaining discriminations that
advantage males.32 It does not allow gender equality and women’s
rights to become a reality because it leaves too mu to be inferred
from the constitution. Interpretations are necessary and are oen
carried out by men who do not necessarily have women’s interests
at heart. It also is clear that a strategy needs to be adopted to target
the private and the public spheres, working on all aspects of the
constitution and the laws that affect women. e necessity to include
the private sphere in Middle Eastern constitutions is key:33 the
private sphere should not be an area that escapes the rights’
paradigm.34 is separation between the private and the public
serves to “secure a version of the individual (in politics) that remains
resolutely male,” and “in this sense, citizenship itself becomes male,
even if it is expressed in gender-neutral terms.”35 is is why gender-
neutral equality is not sufficient as it does not address the
disjuncture between the principle of gender equality and
discriminatory laws.36
I therefore argue that the current state of inclusion or la of
inclusion of gender and women’s rights in Middle Eastern
constitutions does not provide enough protection to women. It is
necessary for Middle Eastern states and societies to develop
strategies to include gender and women’s rights to ensure that
women are given equal protections in the private and in the public
sphere. One of the possible ways of anging the constitution is
through legal reform during constitution-making or constitution-
amending, but this remains a slow-paced option: amending a
constitution or anging laws is a long-term project that is difficult
590
to carry out in an environment where interpretations are made by
men, as is oen the case in the Middle East. Supporting women in
playing a role in the legislative, executive, and judiciary power as
well as encouraging civil society to provide alternative approaes to
gender equality remains crucial. e potential role women can play
in this legal reform is key. e example provided above demonstrates
that Iranian women have influenced law and society, and have had
an impact on gender equality. eir effect as agents of ange has
been obvious on the law but also on the Constitution. Per the
example mentioned above, when it was decided that women would
be allowed to run in the 2009 presidential elections this can be partly
explained by a history of women’s struggles for gender equality.
e impact of su mobilization goes beyond gender equality in
discrete sectors. It benefits society as a whole when marginalized
segments of the population are at the forefront of economic and
political advances. Populations at the margins of society become
powerful agents of ange when doors are opened to new public and
private positions. Women in Iran now constitute the largest portion
of university students and they contribute to society as MPs,
entrepreneurs, solars and doctors. is supports Manjoo’s view
that greater gender equality serves the greater society, and has the
potential to position women as agents of ange for further positive
ange.
591
Notes
1 Visiting Academic, Oxford Centre for Socio-Legal Studies, Oxford University; Lecturer
in Law, Cardiff University.
2 Beverley Baines and Ruth Rubio-Marin, The Gender of Constitutional Jurisprudence
(Cambridge: Cambridge University Press, 2004), 1; Helen Irving, Gender and the
Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge:
Cambridge University Press, 2008); Catharine A. Mainnon, “Gender in Constitutions,”
in The Oxford Handbook of Comparative Constitutional Law, ed. Miel Rosenfeld and
András Sajó (Oxford: Oxford University Press, 2012).
3 U.N. News Center, “Jordan Must Act to End Violence Against Women,” UN News Centre,
November 24, 2011, www.un.org/apps/news/story.asp?NewsID=40507#.Va5eNvlViko
(accessed September 4, 2016).
4 Categorization inspired by Kathleen M. Sullivan, “Constitutionalizing Women’s
Equality,” California Law Review vol. 90, no. 3 (2002), 747.
5 Suad Joseph, Gendering Citizenship in the Middle East (New York: Syracuse University
Press, 2000), 4.
6 Article 340: “ere shall benefit from the mitigating excuse (`udhr mukhaffaf)
whosoever surprises his wife or one of his ascendants or descendents in the crime of
adultery or in an unlawful bed, and kills her immediately or kills the person fornicating
with her or kills both of them or aas her or both of them in an assault that leads to
death or wounding or injury or permanent disability. 2. Shall benefit from the same
excuse the wife who surprises her husband in the crime of adultery or in an unlawful
bed in the marital home and kills him immediately or kills the woman with whom he is
fornicating or kills both of them or aas him or both of them in an assault that leads
to death or wounding or injury or permanent disability. 3. e right of lawful defence
shall not be permied in regard to the person who benefits from this excuse nor shall
the provisions of ‘aggravated circumstances’ (zuruf mushaddida) apply.” Provided by
592
Professor Lynn Welman, CIMEL, June 2013,
www.soas.ac.uk/honourcrimes/resources/file55421.pdf (accessed September 4, 2016).
7 Ghuneim L. Eisner, “Honor Killing Aitudes Amongst Adolescents in Amman, Jordan,”
Aggressive Behavior vol. 39, no. 5 (2013), 405.
8 More can be found at www.women.jo/en/about.php?cat_id=10&type=0.
9 Zaary Elkins and Tom Ginsburg, “e Iraqi Dra Constitution in Comparative
Perspective,” Prepared for the Center for the Study of Democratic Governance,
University of Illinois, Urbana-Champaign, www.comparativeconstitutionsproject.org.
10 Cited in “National Report of the Kingdom of Bahrain on Progress Made in the
Implementation of Beijing Declaration and Platform for Action +20 2014” available at:
www.unwomen.org/~/media/headquarters/aaments/sections/csw/59/national_revie
ws/bahrain_review_en_beijing20.pdf (accessed July 14, 2016).
11 Ibid.
12 Ibid.
13 Elaine Sciolino, Persian Mirrors: The Elusive Face of Iran (New York: Free Press, 2000),
112.
14 Reuters, “Iran Watdog says Women can Run for Presidency,” Reuters, Press Release,
January 22, 2005.
15 Megan McKee, “Kuwait Constitutional Court Rules Women Lawmakers Not Required to
Wear Headscarf,” Jurist, October 20, 2009, hp://jurist.org/paperase/2009/10/kuwait-
constitutional-court-rules-women-28.php (accessed September 4, 2016).
16 Hanna Feniel Pitkin, “e Idea of a Constitution,” Journal of Legal Education vol. 37
(1987): 168.
17 Donna Gresner, “Can Constitutions be for Women Too?” in The Administration of
Justice, eds. Dawn H. Currie and Brian D. MacLean (Seskatoon: University of
Saksatewan Social Resear Unit, 1986), 20.
18 Woodrow Wilson Centre, “An Ideal Constitution on Women’s Rights,” Woodrow Wilson
Centre, January 2, 2013, hps://www.wilsoncenter.org/article/ideal-constitution-
womens-rights (accessed on July 14, 2016).
593
19 Helen Irving, “Draing, Design and Gender,” in Comparative Constitutional Law, eds.
Tom Ginsburg and Rosalind Dixon (Cheltenham: Edward Elgar, 2011), 19.
20 Pippa Norris, “Opening the Door Women Leaders and Constitution Building in Iraq and
Afghanistan,” in Women and Leadership: The State of Play and Strategies for Change,
eds. Barbara Kellerman and Deborah K. Rhode (New York: Jossey Bass, 2007), 211.
21 Isobel Coleman, “Women, Islam, and the New Iraq,” Foreign Affairs (January/February
2006).
22 Ibid.
23 Nadje Al-Ali and Nicola Pra, What Kind of Liberation? Women and the Occupation of
Iraq (University of California Press, 2009), 121.
24 Mai Yamani, Feminism and Islam: Legal and Literary Perspectives, eds. Mai Yamani and
Andrew Allen (New York: New York University Press, 1996), 21.
25 Jonathan Morrow, Iraq’s Constitutional Process II: An Opportunity Lost, Special Report
USIP (Washington DC: USIP, 2005), 16.
26 Article 562 Penal Code 1943 (as amended 1983, 1994, 1995, 1996, and 1999): Whosoever
surprises his spouse or one of his [female] ascendants or descendants or his sister in the
crime of adultery (in flagrante delicto) or in a situation of unlawful sexual intercourse,
and kills or wounds one of them unintentionally shall be liable to a lesser penalty [in
view of extenuating circumstances]. Excerpts provided by Professor Lynn Welman,
CIMEL, June 2013, www.soas.ac.uk/honourcrimes/resources/file55421.pdf (accessed
September 4, 2016).
27 Souad Mokbel-Wensley, “Statutory Discrimination in Lebanon: a Lawyer’s View,” in
Feminism and Islam, 327.
28 Article 192: “If the judge establishes that the motive [for the crime] was honourable, he
will apply the following penalties: in place of the death penalty, life imprisonment; in
place of hard labour for life, life imprisonment or for 15 years.” Article 242: “He who
commits a crime in a state of great anger resulting from a wrongful and dangerous act
on the part of the victim shall be liable to a lesser penalty.” Article 548 Penal Code 1949
(as amended 1953): “1. He who surprises his spouse or one of his ascendants or
descendants or his sister commiing adultery or illegitimate sexual acts with another
594
person and he unintentionally kills or injures one or both of them benefits from an
exemption of penalty. 2. e perpetrator of the murder or injury shall benefit from a
reduction in penalty if he surprises his spouse or one of his ascendants, descendants or
sister in a ‘suspicious’ situation with another.” Provided by Professor Lynn Welman,
CIMEL, June 2013, www.soas.ac.uk/honourcrimes/resources/file55421.pdf (accessed
September 4, 2016).
29 Mielle Baelet, “Reform to Reality: Empowerment of Women in the Middle East,”
Spee delivered by U.N. Women Executive Director Mielle Baelet at a lun event
hosted by the governments of the United States, Tunisia, Canada, Colombia, Jordan, the
Maldives and Norway, titled, held at the Palais des Nations, Geneva, June 10, 2011. See
more at: www.unwomen.org/en/news/stories/2011/6/reform-to-reality-empowerment-
of-women-in-the-middle-east#sthash.SRXiXDWE.dpuf (accessed September 4, 2016).
30 Maha Azzam, “Gender and the Politics of Religion in the Middle East,” Feminism and
Islam, 218.
31 Riwa Salameh, “Gender Politics and the Limits of Legal Reformism,” Civil Society
Knowledge Center, Lebanon, 2014, hp://cskc.daleel-madani.org/paper/gender-politics-
lebanon-and-limits-legal-reformism-en-ar (accessed July 14, 2016).
32 Lina Khatib, “Gender, Citizenship and Political Agency in Lebanon,” in Gender and
Diversity in the Middle East and North Africa, ed. Zahia Smail Salhi (New York:
Routledge, 2010), 147.
33 Anne Philips, Endangering Democracy (Cambridge: Polity Press, 1991), 31.
34 Judith Squires, Gender in Political Theory (Cambridge: Polity Press, 2004), 29.
35 Ibid.
36 Sherifa Zuhur, “Criminal Law, Women and Sexuality in the Middle East.” In
Deconstructing Sexuality in the Middle East: Challenges and Discourses, ed. Pinar
Ilkkaracan (London: Ashgate, 2008), 37.
595
Selected Bibliography
Al-Ali, N. and Pra, N. What Kind of Liberation? Women and the
Occupation of Iraq. Berkeley, CA: University of California Press,
2009.
Azzam, M. “Gender and the politics of religion in the Middle East”
In Feminism and Islam: Legal and Literary Perspectives Yamani,
M. and Allen, A. (eds) New York: New York University Press,
1996, 217–30.
Baines, B. and Rubio-Marin, R. (eds). The Gender of Constitutional
Jurisprudence. Cambridge: Cambridge University Press, 2004.
El Azhary Sonbol, A. Women of the Jordan: Islam, Labor and the
Law. Syracuse, NY: Syracuse University Press, 2003.
Elkins, Z. and Ginsburg, T. “e Iraqi dra Constitution in
comparative perspective,” Prepared for the Center for the Study
of Democratic Governance, University of Illinois, Urbana-
Champaign, 2005. Available at:
www.comparativeconstitutionsproject.org (accessed September
4, 2016).
Feniel Pitkin, H. “e idea of a constitution.” Journal of Legal
Education 37 (1987), 167–9.
Gresner, D. “Can constitutions be for women too?” In The
Administration of Justice, Currie, D. H. and MacLean, B. D.
(eds). Seskatoon: University of Saksatewan Social Resear
Unit, 1986, 20.
Irving, H. Gender and the Constitution: Equity and Agency in
Comparative Constitutional Design. Cambridge: Cambridge
University Press, 2008.
Irving, H. “Draing, design and gender.” In Comparative
Constitutional Law, Ginsburg, T. and Dixon, R. Cheltenham:
596
Edward Elgar, 2011, 19–37.
Khatib, L. “Gender, citizenship and political agency in Lebanon.” In
Gender and Diversity in the Middle East and North Africa, Zahia
Smail Salhi (ed.). New York: Routledge, 2010, 145–60.
Mainnon, C. A. “Gender in constitutions.” In The Oxford
Handbook of Comparative Constitutional Law, Rosenfeld, M. and
Sajó, A. (eds.). Oxford: Oxford University Press, 2012, 397–416.
Mokbel-Wensley, S. “Statutory discrimination in lebanon: a lawyer’s
view,” In Feminism and Islam: Legal and Literary Perspectives,
Yamani, M. and Allen, A. (eds). New York: New York University
Press, 1996, 321–30.
Morrow, J. Iraq’s Constitutional Process II: An Opportunity Lost.
Washington DC: USIP, 2005.
Norris, P. “Opening the door women leaders and constitution
building in Iran and Afghanistan.” In Women and Leadership:
The State of Play and Strategies for Change, Kellerman, B. and
Rhode, D. L. (eds). New York: Jossey Bass, 2007, 197–226.
Riwa Salameh, R. (2014). “Gender politics and the limits of legal
reformism.” Civil Society Knowledge Center. hp://cskc.daleel-
madani.org/paper/gender-politics-lebanon-and-limits-legal-
reformism (accessed July 15, 2016).
Suad Joseph, S. Gendering Citizenship in the Middle East. Syracuse,
NY: Syracuse University Press, 2000.
Yamani, M. “Introduction.” In Feminism and Islam: Legal and
Literary Perspectives, Yamani, M. and Allen, A. (eds). New York:
New York University Press, 1996, 1–30.
Woodrow Wilson Centre (02 January 2013). “An ideal constitution
on women’s rights.” Woodrow Wilson Centre.
www.wilsoncenter.org/islamists/article/ideal-constitution-
women%E2%80%99s-rights (accessed July 15, 2016).
Wouters, J. “Constitutional limits of differentiation: the principle of
equality.” In The Many Faces of Differentiation in EU law, de
Wie, B. et al. (eds). Antwerpen: Intersentia, 2001, 301–46.
597
Zuhur, S. “Criminal law, women and sexuality in the Middle East.”In
Deconstructing Sexuality in the Middle East: Challenges and
Discourses, Ilkkaracan, P. (ed.). London: Ashgate, 2008, 17–40.
598
18
e Arab Uprisings and the Future of
Human Rights1
Micheline Ishay
599
Introduction
In 2011, the Arab uprisings spread throughout the Middle East like a
Khamsin storm. From the Maghrebian desert to the Arabian
Peninsula, Arab regimes toppled one aer the other like sandcastles.
Aer many decades of oppression, expectations soared for a new era
of human rights in the region. Within less than two years, however,
the Arab Spring had turned into a brutal winter. Hopes for a nascent
Egyptian democracy collapsed, sliding ba into fears, and fears into
greater repression. roughout the region, struggles for human
rights were superseded by entrened authoritarianism and religious
extremism. In 2014 alone, over 100,000 people were killed in Syria,
Iraq, Libya, Yemen, and Gaza, making it one of the bloodiest years in
Middle East history. Millions were forced from their homes, creating
an intractable refugee crisis with no end in sight.
Will the human rights spirit, whi animated the first season of
the Arab revolutions, reappear to shape the future of the region? Or
will counter-Enlightenment tides, associated with the most
fundamentalist and anti-human rights perspectives, take a lasting
hold? is apter explores how human rights can resurface even in
the worst of times, addressing prospects for human rights in the
Arab world in light of broader lessons from history. First, against
understandable cynicism and pessimism, it argues that while human
rights progress is oen derailed by counterrevolutionary setbas, as
currently witnessed in the Arab winter, those baward steps may
well be temporary. Revolutionary societies are oen initially ill
prepared to deal with political transition. Human rights is always
borne of tragedy, war, economic crisis or revolutions; and despite
setbas, the fire of human rights tends to reappear over time,
finding in hidden cras poets of oxygen that fan new flames.
600
Second, it maintains that while a number of social, economic, and
international factors, working in tandem, lead to revolutionary
contagions, human rights progress will not occur without qualitative
anges in the nature of civil society, most accurately gauged by
progress in women’s rights. ird, if human rights are to resurface,
they must be embodied in institutionalized strategies, su as those
that protect against gender discrimination.
601
A brief history of human rights in the Middle
East
John Loe reminds us in his Second Treatise of Government that
removing dictators is far from an easy process, as people endure
abuses for a long time before they demand radical ange. Assuming
they succeed, the democratization of a society in accordance with
human rights is even harder to accomplish. Aer all, revolutions
always create social vacuums, and leaders trying to build
institutional steppingstones toward democratization must fear that
real reforms could cause the state to collapse. A retreat to
authoritarianism, rationalized as rescuing society from the abyss of
anary, has thus aracterized many counterrevolutions. is is not
to suggest that the impulses of freedom and human rights that
inspired the 2011 revolutions will be buried forever in the dustbin of
history. When the clarion call of human rights seems to have gone
silent, it oen continues in less conspicuous venues, only to be
reclaimed under the sun in more propitious times. Over the long run,
through successive generations, societies still see progress.
e many recurrences of human rights demands in the Arab
world since World War I were usually context-driven, articulated
selectively rather than comprehensively. For example, the right to
self-determination was ampioned during the struggle against
imperialism; the call for economic rights emanated from
underdeveloped post-colonial states during the cold war; cultural
rights were advocated against globalization, widely perceived as
another form of Western intrusion; and civil and political rights
moved center stage when Arabs rose against their tyrannical
governments. e following section reviews these quests for rights
from World War I to the present, observing that ea wave pushed
602
human rights forward—even when wars and economic crises caused
dire historical regressions—and showing that with ea new wave
the discourse of human rights becomes more comprehensive.
e Arab revolt of 1916–18, or al-Thawra al-`Arabiyya, led by
Sharif Hussein bin Ali, sought independence for a unified state
streting from Aleppo in Syria to Aden in Yemen. However, with
the Ooman Empire collapsing, Britain and France were already
making deals, particularly the 1916 Sykes-Picot agreement, to divide
the region in terms of imperial influence. In the 1919 Treaty of
Versailles, imperial powers continued to infantilize the Arab world,
informing Arab leaders that they were not ready to exercise their
right to state sovereignty, that they needed to rea political
maturity before claiming full control over their territories. A few
decades earlier, Rudyard Kipling had justified colonialism as the
civilized man’s moral responsibility to rule over people who were
“half devil and half ild,” who needed discipline, oversight and
governance in order to become fully civilized.2 Kipling’s famous
poem, “e White Man’s Burden” (1899), simply reflected the
mindset of the imperial leaders who dominated the Middle East aer
World War I, when Arabs, for the most part, were given only partial
independence.
Aer the devastation of a second world war in Europe, the
promulgation of the 1948 Universal Declaration of Human Rights
(UDHR) created new opportunities in the Middle East. At the time,
most Muslim countries were not yet members of the U.N., yet those
who were independent—including Egypt, Iran, and Pakistan—signed
the UDHR. Charles Malik, Lebanon’s Ambassador to the U.N., was a
member of the first commission of human rights and a contributing
draer of the UDHR. “What interests me most concerning this
question of the Bill of Rights,” he maintained, “is the whole problem
of personal liberty … (I)f we fail in the formulation of our
International Bill of Rights, it is not going to be on the grounds of
failing to state explicitly the rights of the individual for food,
603
housing, work, migration …. Rather, it will be on the grounds of
failing to allow sufficiently for the all-fundamental problem of
personal liberty.”3 But not all Arab leaders agreed with his views.
Saudi Arabia and Yemen did not vote in favor of the UDHR, and
Saudi King Abdul Aziz reasserted his adherence to Sharia law and
the r`an. e Declaration, the King asserted, was draed in
violation of Islamic law and failed to take the cultural values and
religious beliefs of non-Western countries into account.4 e conflict
between religious versus individual liberties would re-emerge later
as a core human rights debate in the Middle East.
During the Cold War, the imperialist and paternalistic discourse of
human rights, with its vestigial intimations of the “white man’s
burden,” was rejected with growing disdain in what had become
known as the ‘ird World.’ Anti-colonialists who fought for self-
determination would not allow a repeat of Versailles. e UDHR
provided a powerful weapon in the arsenal of human rights activists
against efforts by European powers to retain their trustees or
colonies. e UDHR would similarly strengthen the fight against
apartheid in South Africa, and would be invoked by numerous
groups seeking self-determination. While few Arab states were
independent in the immediate aermath of World War II, the anti-
colonial struggle anged the map of sovereign states. In 1966, when
the right to self determination was stated in the first common article
of the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural
Rights (ICESCR), there were thirteen Arab states; nine more states
would follow suit a few years later. With the exception of the
Palestinians and the Kurds, the right to self-determination seemed to
be secured across the Middle East.
With greater numbers of Arab states becoming members of the
United Nations, a new wave of human rights claims shied toward
economic rights. Developing countries upheld the ICESCR as a
critical document, to be contrasted with the notions of individual
604
rights, oen associated with the ICCPR and well praised in the West.
In the Arab world, individual rights were secondary, to be
implemented only aer the successful modernization of a newly
independent state. Authoritarian leaders usually asserted that
national development required centralism and the suppression of
individual rights. In the Middle East, the arismatic Egyptian
dictator Gamal Abdel Nasser offered that line of argument:
e first essence of the Revolution was to tear down the social barriers between classes
and the redistribution of the countries [sic] wealth more fairly. It also aimed to restore
the basic freedoms to the regular Egyptian citizen, su as the freedom to work, the
freedom of sustenance, the freedom of owning the land he toils, the freedom to protect
himself and his family, and the right to a share of the national wealth and to
superintend it. ese are all rights and freedoms, whi helped the citizen to restore his
sense of honor and personal dignity, both of whi are a natural human right.5
With the waning of the Cold War, ronic economic crises, and state
failures to implement equitable economic reforms, authoritarian
leaders continued to regard pressure for civil and political rights as a
threat to their regimes. Concessions to Islamists were not new, but
now à l`ordre du jour; it was useful to counter liberal demands by
invoking an adherence to a 1400 years old religious order. Sayyid
Abul Ala Maududi, the influential Muslim Indian-Pakistani
theologian, claimed that human rights were Islamic in origin, and
were then distorted by the West. In his view, the rights given by the
Prophet stood the test of time, in contrast to competing conceptions
of social justice.
It refreshes and strengthens our faith in Islam [he claimed] when we realize that even in
this modern age whi makes su loud claims of progress and enlightenment, the
world has not been able to produce juster and more and equitable laws than those given
1400 years ago.6
In 1989, the fall of the Berlin Wall sent a showave through the
world. With the collapse of the Communist bloc, the maestros of
globalization announced the universal triumph of Western
conceptions of liberalism and universal individual rights, countering
605
paroial notions of cultural rights ampioned by religious leaders
across the Middle East, Asia, and Africa. Islamist defenders of
cultural rights replied defensively to the spread of Western culture
by promulgating the Cairo Declaration of Human Rights (adopted in
1990), whi offered both an Islamic view of human rights and a
reaffirmation of Islamic Sharia as a guide for Arab states. Article 1
affirmed that true faith is the only guarantee for enhancing dignity
along the path to human perfection, and that Islam is “the religion of
unspoiled nature.” anks to its reliance on Sharia law, the Cairo
Declaration directly conflicted with universal human rights by
failing to protect the equal rights of women and non-Muslim
minorities. ese asms between Islam and the West were
ironically captured by Samuel Huntington as “a clash of
civilizations.”
What Huntington did not anticipate, among other things, was that
other clashes could erupt in the Arab world. e Cairo Declaration’s
allenge to women’s rights, combined with the rise of Islamism and
civil war in Algeria, contributed to a sudden rise in women’s rights
organizations in the Middle East. From Algeria, to Tunisia, to Egypt,
to Morocco and the Palestinian territories, women were devising
new strategies to gain greater influence in the public sphere. Many
su women’s organizations were sponsored by the U.N.’s regional
commission for West Asia in Amman, Jordan, in preparation for the
1995 Beijing Conference. A working document was issued to remedy
women’s la of employment rights in the workforce, the absence of
civil rights, the inequality between women and men in positions of
authority, and women’s suffering from domestic violence and honor
killing. 7
ese demands encroaed upon the Islamist worldview, whi
was also making new political inroads in the 1990s. Secular
authorities found it convenient to side with the Islamists against
increased demands for human rights, and rights violations
intensified in the Middle East and North Africa (MENA) region as
606
the new millennium approaed. Guardians of the international
order continued to ally with the dictatorships of Ben Ali, Hosni
Mubarak, Bashar Al Assad and other dictators to secure their
geopolitical and economic interests. e level of military repression,
police brutality, and torture (oen in cooperation with Western
intelligence) in the post-9/11 environment further justified
emergency laws in the name of ‘national security.’ A revolutionary
situation, intensified by the 2008 global economic recession,
however, continued to brew underground, beneath the radar of
dictators, and despite a list of forewarnings su as the ones
documented in the Arab Development Report of 2009.
e Arab solars and former senior level policy makers who
draed this important report wanted to shi aention from national
to human security, to explain why there were persistent obstacles to
human development in the MENA. eir analysis drew aention to
the fragility of the region’s political, social, and economic structures,
its la of people centered development policies, and its vulnerability
to outside intervention. “In the Arab region, human insecurity—
pervasive, oen intense and with consequences affecting large
numbers of people—inhibits human development,” the report states.
Adding that,
It is revealed in the impacts of military occupation and armed conflict in Iraq, Sudan,
Somalia and Occupied Palestinian Territory. It is found in countries that enjoy relative
stability where the authoritarian state, buressed by flawed constitutions and unjust
laws, oen denies citizens their rights.8
e report, widely read in the fields of development and human
rights, fell however on deaf ears in Arab and Western policy-making
circles. With these leaders turning a blind eye to failed political,
economic, and social reforms, the Arab world was becoming a
terrain combustible to popular revolts.
607
Human rights during the Arab uprisings
e likelihood of contagion rises when the influence of major
powers (in this case the US) declines; when a regional or global
economic crisis (in this case the 2008 economic meltdown) produces
uncontrolled unemployment; and when leaders (like Ben Ali,
Mubarak, and Assad and others) raise expectations of reform but fail
to deliver. Su dysfunctional structural conditions may produce a
revolutionary powder keg, but the revolutionary movement cannot
be sustained without an active and robust civil society capable of
superseding the power of the state.
Ultimately, key actors in civil society sit in the driver’s seat of
revolutions. As events unfold, diverse members of the population
(some from the ‘silent majority’ and others from NGOS, unions, or
other social entities) join the ranks of revolutionary leaders. e
involvement of women, in particular, contributes to the development
of a global discourse of rights. In this respect, Karl Marx and
Friedri Engels aptly suggested that real revolutionary anges in
civil society are animated by human rights emancipations; and these
can only be determined by “women’s progress towards freedom,
because here, in the relation of woman to man, of the weak to the
strong, the victory of human nature over brutality is most evident.
e degree of emancipation of woman is the natural measure of
general emancipation.”9
General emancipation, however, requires a sturdy civil society,10
whi during the Arab uprisings varied from one context to another.
In Tunisia and Egypt, where the uprisings began, civil society was
vibrant and homogenous and the state had been greatly weakened
by its incapacity to enact political and economic reforms. In the
highly divided authoritarian societies of Libya, Syria and Yemen, a
608
burgeoning civil society was still too fragmented to confront the
state effectively, and the revolutions stalled. In the divided Gulf
monaries (Saudi Arabia, United Arab Emirates, Kuwait, and
Oman), civil society was weaker compared to the state and could not
lead to substantial revolutionary ange.11
Despite these different paths, the cry of human rights, amplified
by the revolutionary events of 2011, resounded in new public spaces.
e availability of the Internet and the privatization of television
offered new paths forward beyond the rea of censorship.
Governments lost their monopoly over political coverage with the
rise of semi-independent newspapers and ubiquitous satellite dishes
streaming not just Al Jazeera but many new outlets. Simultaneously,
the early penetration of the Internet into the Arab world provided a
social forum for activists and bloggers and a political platform for
educated and idealistic youth. All these meanisms had the
capacity to create a sense of unity, hastening the revolutionary
contagion.
e introduction of satellite television in 2005 initially offered an
alternative to otherwise government-owned and regulated media; it
represented an important shi to mu more pluralistic and diverse
sources of information, allowing ordinary Arabs a wider exposure to
new cultural and political influences.12 e satellite dish had a
significant impact throughout the Arab world from the Maghreb to
the Arabian Peninsula. Beyond roads and telephones, whi
connected numerous towns and villages, it exposed people to new
tastes, from Islamist programming, to art and pornography. It shaped
social participation and a sense of togetherness, creating a virtual
Arab cosmopolitanism. e Arab dream of unity, invoked for 50
years by politicians’ speees, was, at least in the sense of mass
communication, becoming a reality.13 Al Jazeera was decisive in
connecting protests across the region into a unified narrative,
highlighting simultaneous protests on split screens, and employing
609
identical language to describe the aspirations of protagonists in
different contexts.
roughout the Middle East, rap music provided a new rhythm of
resistance. Observant and secular Muslims found a place in the
Internet to express their views. Tunisian rapper Hamada Ben Hamor
(aka El General) posted a hip-hop song called ‘Rais-LeBled,’ a pun on
the words rais el bled, whi means the president of the republic.
With easy access to YouTube, resistance rap spread swily through
the streets and alleys, real and virtual, of the Middle East. No one
had dared publicly blame a president for unemployment and
injustice, but El General sang fearlessly; his courage and words were
contagious. Enjoyed by millions throughout the Middle East, rap
became the new revolutionary music of young artists.
Su free artistic expressions in the public sphere were baed by
the activism of labor organizations. Tunisian, Egyptian and Bahraini
unions provided an outlet for workers to express their economic
discontent. More independent than some of its counterparts, the
Tunisian Union Genéral du Travail (UGTT) was able to capitalize on
the economic plight of Tunisians, forever symbolized by the self-
immolation of Mohamed Bouazizi. e union demanded political
ange, galvanizing popular protests across the country from
Kasserine and Gafsa in the hinterland to Sfax and Sousse on the
northeastern coast. e Egyptian Trade Union Federation (EFTU),
somewhat less autonomous than its Tunisian counterpart, had a
relatively more modest goal: to advance economic rights demands
rather than regime ange.14 e union set in motion a series of
factory strikes, some of whi extended beyond its control. e
General Bahrain Trade Union (GFBTU) was more like its Tunisian
counterpart, demanding not merely economic rights but also greater
political freedom, including the creation of a fully elected
parliament.15 However, its efforts failed when members of the Gulf
Cooperation Council sent thousands of soldiers and police to
cradown on protesters in Manama.
610
e activism of labor unions intersected with the work of local
activism. In Egypt, the Kefaya (“Enough”) grassroots organization
emerged in 2004, directing its rage against Mubarak’s presidency and
permanent emergency laws. e April 6 Movement was formed in
2008 to support the workers’ strike in the industrial town of El-
Mahalla, located in the middle of the Nile delta.16 One year earlier,
the National Association for Change, led by Mohamed ElBaradei,
launed its own pro-democracy activities. ese groups formed the
core of the pre-mobilization stage of the uprising, providing the
hidden organizational foundation beneath what looked liked a
spontaneous gathering of youth.
Since the mid-1990s, both the US and the Europeans had provided
funding to human rights organizations in the MENA region. Even
though the Arab awakening was homegrown, su external support
offered critical practical assistance in the anging social theater.
While the ruling elite in Egypt and elsewhere indulged these NGOs
before and even during the early phase of the revolutionary turmoil,
that tolerance did not survive as the uprising intensified. NGOs were
shut down throughout the Middle East, newspapers were censored
and journalists imprisoned. With the exception of Tunisia, and
possibly Morocco, governmental censorship returned at best to the
status quo ante and at worst to a greater form of repression.
e sanctuary of the mosques, oen le uncontrolled by the state,
was another important space of resistance. Some mosques openly
recruited young activists and served as hubs for demonstrations
following Friday prayers. Islamic groups invisible in the 2011
protests became more noticeable. Islamists were sometimes able to
bridge class differences, connecting professional and middle classes
with workers and poor citizens.17 While some Islamists sought to
gain new converts in that religious seing, others took a more
inclusive approa, exploring an interface between Islam and
democracy. While the Muslim Brotherhood in Egypt and en-Nahda
in Tunisia were ambiguous with regard to democracy during the
611
liberal revolutionary phase, they re-emerged through highly
disciplined mass mobilization campaigns, aieving victory in ea
country’s first elections.
At all times, the level of human rights progress in civil society can
be measured by the status of women’s rights. In the words of
Eleanor Roosevelt:
Where, aer all, do universal human rights begin? In small places, close to home … Su
are the places where every man, woman, and ild seeks equal justice, equal
opportunity, equal dignity without discrimination. Unless these rights have meaning
there, they have lile meaning anywhere.18
Su calls for equality, bridging the private and public realms, had
now begun to resonate throughout the Arab world.
From Tunisia to Yemen, the increased involvement of women in
Arab civil society has been unprecedented, even in Gulf countries
where conservative religious forces have long been powerful.
Tawakol Karman, a leader of Yemen’s democracy movement, shared
in the 2013 Nobel Peace Prize in recognition of the empowerment of
women in the struggle for democracy and development. In Tunisia,
where women had already reaed near-equality with men, they
protested with them in broad daylight from the outset of the
revolution. Egyptian demonstrations also included large numbers of
women and in Syria crowds of women mared in the face of
Assad’s murderous soldiers and tanks, demanding the release of
their imprisoned husbands. Photos and accounts of women taking
over the street became familiar images of the Arab Spring.19
While many women had assumed an active role during the
nationalist movements against European domination, what was
unprecedented in Tunisia and Egypt was the sheer scale of women’s
participation and their growing equality within the revolutionary
movements. A tragic caveat to this optimistic observation were the
sexual assaults by groups of men against women in Cairo’s Tahrir
square—constant offenses that came to the world’s aention through
612
an aa on CBS reporter Laura Logan. However, it is worth noting
that this aspect of male rage did not drive women out of the square,
despite multiple incidents. e same square witnessed courageous
unarmed women facing down armed pro-Mubarak thugs. All of
these stories, good and bad, circulating worldwide through blogs,
Twier, and Facebook, continued to empower women and highlight
their critical role in the revolution.
Even more remarkable in 2011 were those women in the Gulf
region who became a force for ange. On February 20, thousands of
Bahraini women protesters took to the streets of the capital
Manama. In the Sultanate of Oman, shoulder-to-shoulder with men,
women came out to protest against the government and to insist on
their rights. In a country where 5 percent of marriages are
polygamous, some Omani women called for an end to the practice.20
In Yemen, women and men joined on the streets in protest against
President Saleh’s regime. When Saleh suggested that anti-
government protesters in the capital were in violation of Islamic law,
prohibiting women from mixing with men, he stirred an even
greater uproar and further emboldened female protesters. Even the
late King Abdullah bin Abdulaziz of Saudi Arabia surprised many in
2011 by announcing women’s right to vote in the 2015 municipal
elections, and to be included on the Shura Advisory Board. While
the right to vote means very lile in the Saudi monary, those
anges represent a small step toward the improvement of women’s
gender equality in the most male-dominant society on earth.
e activism of women in civil society was anging the discourse
of democracy and universalizing the struggle for human rights. Aer
all, the oppression of women has for centuries served as the lynpin
of authoritarianism. As depicted in Engels’ Origins of the Family,
followed by Horkheimer and Marcuse’s essay on ‘authoritarianism
and the family,’ despots reduced their population to servitude in part
by allowing ordinary men to become masters in their homes,
thereby appeasing male anger against their regimes.21
613
e symbiosis between tyranny and patriaralism has been well
evidenced in the history of women’s rights. In the seventeenth
century, the British feminist writer Mary Astell highlighted the
hypocrisy of male protest against the monary in the name of equal
rights. “If the authority of the husbands … is sacred and inalienable,”
she wrote, “why not that of the Prince?”22 at sarcastic question
recognizes the repression of women as a fundamental pillar of
authoritarianism. As long as men can still subjugate or legally
discriminate against women, their own frustration, due to
unemployment or repression, can be more easily appeased or vented
at home. Put another way, when a man’s home is his castle, the
Prince is safer on his throne.
Arab women’s rights opportunities, however, began to dwindle
aer the revolution. Women’s revolts have always been against a
double repression: patriaral and political. Even aer tyrants are
removed, their subjugation persists. Indeed, during the final act of
the Fren Revolution, Louis Marie-Prudhomme, a Jacobin who had
initially urged female citizens of all ages to join the revolution,
remarked that once “the country is purged of all these hired
brigands, we will see you [women] return to your dwellings to take
up once again the accustomed yoke of domestic duties.”23 Similar
setbas were experienced aer the Bolshevik and Chinese
Revolutions. As Nawal El Saadwi, Nikki Keddie and others have
documented, many women fought for independence against colonial
rule under the banner of Arab nationalism only to return to more
traditional roles aer national liberation was aieved.24
“Women united by Revolution may be divided by Politics,” was
the title of a Gulf newspaper article.25 True, the Arab women who
took their grievances to the streets were protesting as citizens, not as
women. In the push for pluralism, however, resurgent Islamist
groups, previously censored, dedicated themselves to defeating the
democratic agenda of feminists and progressive revolutionaries.
Even for secular participants in the revolution, the identification of
614
women as the moral anor of the family could once again be
invoked, especially when social aos reinforced the appeal of
domestic order. Women were reminded that the hijab kept them safe,
that virginity before marriage was sacred, and that they were in
need of vigilant protection. ese religious rationales were consistent
with a broader historical reality: the sacrifice of women’s liberation
on the altar of post-revolutionary regimes.
For women’s rights to sti, they must be thoroughly protected in
constitutional documents. In response to the uprisings, Jordan and
Morocco stabilized their kingdoms through constitutional
adjustments, increasing the power of parliament and establishing a
constitutional court to prevent social upheavals. Four countries
engaged in a more complete overhaul of their constitutions: Tunisia,
Egypt, Libya and Yemen. e laer two dried into tribal and
sectarian warfare, rendering their early legal bales irrelevant, but
Tunisia and Egypt completed the constitutional process, creating the
possibility of genuine ange. In both countries, however, clashes
between Islamists and liberals le advances in women’s rights
highly precarious.
e balefield over the separation of religion and state in Tunisia
and Egypt would have clear implications for the rights of women.
During the short-lived Islamist governments in both countries,
women’s rights suffered a real setba. For instance, the Tunisian
Constitution’s first dra, published in 2012, raised secular eyebrows
by describing women as “complementary to” rather than equal with
men. Likewise, Egyptian critics of that nation’s 2012 constitution
were rightly concerned that Al-Azhar (Egypt’s principal mosque and
recognized as an important center of learning across the Sunni
world) was identified as the unquestioned interpreter of Sharia.26
Sharia applies to maers of the family, and the interpretations
emanating from most Al-Azhar based solars tended to
discriminate against women with regard to marriage, divorce, ild
law and inheritance. Under the 2014 Egyptian Constitution, despite
615
Article 2’s continuing stipulation that Islam is the principle source of
legislation, the language of women’s rights was substantially
improved: women were now able to hold public and senior
management offices in executive and judicial bodies without
discrimination. Overall, however, the Tunisian Constitution finalized
in 2014 upheld higher standards of rights for both women and men.
If women’s rights serve as a barometer for the vitality and
emancipatory direction of civil society, there is now more reason to
be hopeful for Tunisia than for Egypt, as the laer slid into
authoritarianism aer 2013. e 2014 constitutions of Egypt and
Tunisia, though enacted at the same time, and as a consequence of
very similar revolutionary forces, resulted in different outcomes.
While the Tunisian Constitution limited executive power, Egypt has
to a large extent fallen ba into the structures of the 1971
constitution and will likely continue to restore its historically
authoritarian presidency, especially as the armed forces play su a
dominant role in the political and constitutional life of the country.
Tunisia seems to have embraced a new constitutional paradigm that
is based on a balanced institutional framework that provides for
substantial es and balances between the three branes of
government. e promotion of political pluralism and the peaceful
rotation of power, declared aims in both countries’ constitutions,
remain a real possibility in Tunisia but no more than a distant hope
in Egypt.
Beyond a human rights-based constitution, the transition from an
old to a new regime based on human rights also requires
consolidation and the establishment of legitimacy through statecra.
Revolutionary leaders need to build a broad national consensus,
implement equitable economic policies, and restore stability. Again,
Tunisia has taken critical steps in that direction. Unlike its Egyptian
counterpart, it was able to institutionalize a pluralist society through
a constitution based on human rights, without fearing retaliation of
its relatively weak military. While Tunisians negotiated differences
616
in a parliamentary seing, the Egyptian army—the foundation of
that country’s deep state—reestablished its power aer the first
political crisis. In contrast to Egyptian civil society, Tunisia’s, with a
longer tradition of human rights activism, was sturdier and in a
beer position to allenge the old regime. at is not to say that the
process is complete. Many Tunisian intellectuals rightly believe that,
to consolidate a civil and political revolution, there must still be a
social revolution, understanding that the future of their country may
yet be imperiled by a lingering weak economy and the continuing
threat of terrorism. Given the region’s transnational problems, the
question remains: can the initial success of the Tunisian revolution
survive as the rest of the region spirals into more sectarian conflict?
e optimistic spirit of 2011 today seems a distant memory
throughout mu of the Arab World, particularly as radical Islamists
have expanded their rea in Syria, Iraq, Libya, and beyond. e
ascendency of ISIL has dramatically intensified sectarian war in the
Middle East, provoking fear of escalating global conflict. Amidst
growing despair, it is worth remembering the remarkable advances
of human rights in Europe following the horrors of World War II.
What might we learn from that historical experience? How might
the lessons of postwar Europe be implemented in a future Middle
East? e following can be read as a thought experiment.
617
e fih freedom
e contemporary situation in the Middle East, however tragic, still
pales in comparison to World War II. en, in the midst of the
deepest darkness, as 80 million people were losing their lives on the
balefields, in the Nazi concentration camps, and in the
bombardment of cities, President Franklin Roosevelt raised his voice
against isolationism and proclaimed a commitment to four pillars of
freedom to whi all humans are entitled: freedom of spee,
freedom of worship, freedom from want, and freedom from fear.
ese fundamental rights are likewise key to the Arab world’s
future: without free expression, religious tolerance, economic
opportunity, and an end to sectarian conflict, real progress will never
be made toward human flourishing.
Roosevelt did not highlight women’s rights as a pillar of his
essential freedoms spee; but during his administration, his wife
and political partner, Eleanor Roosevelt, lent her considerable
influence to the improvement of women’s rights, fighting for a
limitation on the number of hours an employer could force a woman
to work and striving to remedy the unsafe and exploitative
conditions in many women-dominated workplaces. e advance of
women’s rights in postwar Western Europe clearly reinforced the
overall progress toward both human rights and European peace.
Identifying freedom from gender discrimination as a fih
fundamental freedom provides an essential element in arting
human rights possibilities in the Arab Middle East.27
As noted earlier, during the Arab Spring, the participation of
women from Tunisia to Syria drew considerable media aention.
While sexual discrimination against women in the Arab world
remains the highest in the world, there are signs of positive ange.
618
e numbers differ from one country to another, but women in the
Arab world have, overall, mated their world peers in literacy rates,
life expectancy, and reduced infant mortality.28 Most remarkably,
Arab women have reversed the gender gap in the key sector of
tertiary education, where women now outnumber men. Combining
beer health and a breakthrough in higher education, the moment is
approaing when women will almost certainly emerge as a political
force capable of allenging the patriaral foundation of Arab
societies.29 “I cannot separate the liberation of women, as half of the
society, and the liberation of the country,” affirmed Egyptian
feminist and novelist Nawal al-Saadawi. “I cannot separate between
revolution in relation to women’s rights and revolution in relation to
country rights: women and men and peasants and the working
class.”30
If Egypt and Tunisia, two countries with a strong history of
feminism, are still experiencing significant hindrances regarding
women’s rights, the inclement winds of religious conservatism from
the Gulf monaries provide even less hope for women. Nonetheless,
social and economic anges in the Gulf region and beyond could
promote human rights and assuage Islamist fervor. Compared to
other women in the MENA region, women in the Gulf are far
wealthier, and, bestowed with that advantage, the young generation
of Gulf women, who now outcompete men in terms of education,
could potentially lead the way toward a different form of human
rights revolution—one whi literally begins at home. Given the tiny
number of citizens in comparison to the large foreign labor sector,
women from most Gulf countries (with the exception of Saudi
Arabia) have been encouraged to become part of the workforce. As
employees with growing levels of responsibility and aievement,
women are becoming an integral part of these nations’ social capital,
able to push for liberal reforms. Just as the late nineteenth century
suffragee movement arrived on the European political scene
following similar socio-economic trends, Arab women’s demands of
619
their inalienable rights could well become a time bomb in the Arab
Middle East.
620
Conclusion
e progress of human rights and the animating hope that toppled
the Arab nationalist dictators have unquestionably suffered a serious
reversal. Historically, this has been the case for nearly all
revolutions. Yet, over time, the forces of human rights unleashed
during the Arab uprisings are bound to revive, drawing from lessons
learned in previous struggles. Eleanor Roosevelt’s optimism, whi
may have seemed naive to those who just survived the horrors of
World War II, was ultimately vindicated: “However dark our times
… we gain strength, and courage, and confidence by ea experience
in whi we really stop to look fear in the face. … [W]e must do that
whi we think we cannot.”31
621
Notes
1 I would like to thank Robert Pyne for reviewing and commenting on this apter and
my resear assistant Adam Jepsen.
2 Rudyard Kipling, “e White Man’s Burden,” Modern History Sourcebook: Rudyard
Kipling, The White Man’s Burden, 1899. Fordham University, accessed August 18, 2008.
hp://legacy.fordham.edu/halsall/mod/kipling.asp
3 Charles Malik, “Proposing Ground Rules for Commiee Debates on Human Rights,”
United Nations Commission on Human Rights, February 4, 1947, accessed November 8,
2015.
www.gwu.edu/~erpapers/humanrights/casestudies/ERandHR%20case%20study%20PDF.
4 omas W. Jacobson, “Ambassador Charles Malik and the Universal Declaration of
Human Rights,” Focus on the Family, accessed November 6, 2015.
www.idppcenter.com/UDHR-Dr_Malik_book_summary.pdf. See also Mary Ann
Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of
Human Rights (New York: Random House, 2002).
5 Gamal Abd El Nasser, Interview by David Morgan, Sunday Times, June 18 1962,
accessed November 3, 2015. hp://nasser.bibalex.org/common/pictures01-sira3_en.htm
6 Sayyid Abdul Ala Mawdudi, Human Rights in Islam (Leicester: e Islamic Foundation,
1976), 39.
7 Valentine M. Moghadam, “Women, Citizenship and Civil Society in the Arab World,” in
Anthony Chase and Amr Hamzawy, Human Rights in the Arab World: Independent
Voices (Philadelphia: University of Pennsylvania Press, 2006), 100.
8 Arab Human Development Report 2009: Challenges to Human Security in the Arab
Countries (New York: United Nations Development Programme Regional Bureau for
Arab Studies, 2009) 2, accessed November 3, 2015. www.arab-
hdr.org/publications/other/ahdr/ahdr2009e.pdf
622
9 Fourier as quoted in Marx and Engels, “e Holy Family,” In Selected Works (Moscow,
For. Lang. Pub. House, 1956), 258–9.
10 See Mieline Ishay, The History of Human Rights: From Ancient Times to the
Globalization Era (Berkeley: University of California Press, 2008), 315–55.
11 Mieline Ishay, “e Spring of Arab Nations? Paths Toward Democratic Transition,”
Philosophy and Social Criticism 39, no. 4–5 (2013): 373–83.
12 Tarek Atia, “Paradox of the Free Press in Egypt,” (presentation, USEF Expert Panel
Discussion), Washington, D.C., 2004; Sahar Khamis, “e Role of the New Arab Satellite
Channels in Fostering Intercultural Dialogue: Can Al Jazeera English Bridge the Gap?”
in New Media and the New Middle East, ed. P. Seib (New York: Palgrave Macmillan,
2007).
13 Marc Lyn, “Assessing the Democratizing Power of Satellite TV,” Transnational
Broadcast Studies, no. 14 (2005): 150–5; Philip Seib, “New Media and Prospects for
Democratization,” in New Media and the New Middle East, ed. P. Seib (New York:
Palgrave Macmillan, 2007), 1–18.
14 Viy Langhor, “Labor Movement and Organization”, in The Arab Uprisings Explained,
ed. Marc Lyn (New York: Colombia University Press, 2014), 183.
15 Ibid 185.
16 David Kirkpatri, “Egyptian Government Figures Join Protesters,” New York Times,
February 4, 2011.
17 Nurullah Ardiç, “Understanding the ‘Arab Spring’: Justice, Dignity, Religion, and
International Politics,” Afro Eurasian Studies 1, no. 1 (2012): 8–52.
18 Eleanor Roosevelt, “In Our Hands” (Spee, Tenth Anniversary of the Universal
Declaration of Human Rights, New York, NY, Mar 27, 1958).
19 Bill Law, “Bahrain Protests Prompt Global Concerns.” BBC World News, February 15,
2011, accessed Mar 8, 2011. www.bbc.com/news/world-middle-east-12471243;
Elizabeth Donger, “Why Protesting Sexism is Taboo in a Land of Endless Protests,”
Broad Recognition, February 23, 2011, accessed November 6, 2015.
www.broadrecognition.com/women-of-the-world/why-protesting-sexism-is-taboo-in-a-
land-of-endless-protests/
623
20 Saleh al Shaibany, “Women in Oman whose Husbands Marry Again Refuse to be
Second-Best,” The National, April 1, 2011, accessed November 10, 2015.
www.thenational.ae/news/world/middle-east/women-in-oman-whose-husbands-marry-
again-refuse-to-be-second-best
21 Max Horkheimer, “Authority and the Family,” in Critical Theory: Selected Essays, Max
Horkheimer, ed. Mahew J. O’Connell (New York: Continuum Publishing Company,
1975), 83.
22 Mary Astell, “Some Reflections upon Marriage,” in The Portable Enlightenment Reader,
ed. Isaac Kramni (New York: Penguin Books, 1995), 563.
23 Louis Marie-Prudhomme, “On the Influence of the Revolution on Women,” Revolutions
of Paris Editorial, February 21, 1791.
24 Nikkie Keddie, Women in the Middle East (NJ: Princeton University Press, 2007) and
Moghadam Valentine, Modernizing Women: Gender and Social Change in the Middle
East (Boulder, CO: Lynne Reinner, 2001); Nawal El Saadawi, The Nawal El Saadawi
Reader (London, New York: Zed Books, 1997), apter 22.
25 Faisal Al Yafai, “Women United by Revolution may be Divided by Politics,” The
National, Mar 8, 2011, accessed November 5, 2015.
www.thenational.ae/thenationalconversation/comment/women-united-by-revolution-
may-be-divided-by-politics
26 Mieline Ishay, “Response to ‘What Killed Egyptian Democracy?’,” Boston Review,
January 21, 2014, accessed September 4, 2016. www.bostonreview.net/forum/what-
killed-egyptian-democracy/mieline-ishay-response-egyptian-democracy
27 Part of this section was revised and drawn from Mieline Ishay, “Violent Islamism
Beyond Borders: Can Human Rights Prevail?” Philosophy and Social Criticism, 2016.
28 Opening Doors: Gender Equality and Development in the Middle East and North Africa
(Washington D.C.: World Bank, 2013), 31.
29 Maysa Jalbout, “Unloing the Potential of Educated Arab Women,” Brooking institute,
Mar 12, 2015, accessed January 19, 2016. www.brookings.edu/blogs/education-plus-
development/posts/2015/03/12-unloing-potential-education-arab-women-jalbout
624
30 Faisal Al Yafai, “Nawal El Saadawi: Nothing has really Changed since Revolution in
Egypt,” Middle East online, May 12, 2012, accessed August 6, 2014. www.middle-east-
online.com/english/?id=52215
31 Eleanor Roosevelt, You Learn by Living: Eleven Keys for a More Fulfilling Life (New
York: Harper Perennial, 2011), 29–30.
625
Selected Bibliography
Arab Human Development Report 2009: Challenges to Human
Security in the Arab Countries. New York: United Nations
Development Programme Regional Bureau for Arab States, 2009,
accessed November 3, 2015. www.arab-
hdr.org/publications/other/ahdr/ahdr2009e.pdf.
Chase, Anthony Tirado and Amr Hamzawy, Human Rights in the
Arab World: Independent Voices. Philadelphia: University of
Pennsylvania Press, 2006.
Chase, Anthony Tirado. Human Rights, Revolutions, and Reform in
the Muslim World. Boulder, CO: Lynne Reinner, 2012.
El Saadawi, Nawal. The Nawal El Saadawi Reader. London, New
York: Zed Books, 1997.
Horkheimer, Max. “Authority and the Family,” in Critical Theory:
Selected Essays, Max Horkheimer, ed. Mahew J. O’Connell.
New York: Continuum Publishing Company, 1975, 47–128.
Ishay, Mieline. “Response to ‘What Killed Egyptian Democracy?’,”
Boston Review (January 21, 2014), accessed July 14, 2016.
www.bostonreview.net/forum/what-killed-egyptian-
democracy/mieline-ishay-response-egyptian-democracy.
Ishay, Mieline. The History of Human Rights: From Ancient Times
to the Globalization Era. Berkeley: University of California Press,
2008.
Ishay, Mieline. “Violent Islamism Beyond Borders: Can Human
Rights Prevail?” Philosophy and Social Criticism, May-June, vol.
42, 4–5 (2016), 363–74.
Langhor, Viy. “Labor Movement and Organization,” in The Arab
Uprisings Explained, ed. Marc Lyn. New York: Columbia
University Press, 2014, 180–200.
626
Keddie, Nikki. Women in the Middle East. Princeton, NJ: Princeton
University Press, 2007.
Moghadam, Valentine. Modernizing Women: Gender and Social
Change in the Middle East. Boulder, CO: Lynne Reinner, 2001.
627
Section VI
Religion and human rights in the
Middle East and North Africa
628
19
Shari`ah and Human Rights
Khaled Abou El Fadl*
629
Introduction: human rights discourses in the
modern Muslim world
e construct of human rights has aieved notable symbolic
significance in the modern world. Politically, whether a nation
regularly violates the rights of its citizens or not, most nations go
through the pretense of claiming to honor some version of human
rights. In the past half-century, human rights have become a
significant part of international relations, as there has been a
globalization of human rights concerns and discourses.1 At least
since the widespread adoption of what has been referred to as the
International Bill of Rights,2 the idea of human rights has become
established as a powerful symbolic construct oen used to shame or
embarrass governments into exhibiting a higher degree of restraint
in dealing with their citizens.3 Importantly, in the case of the Muslim
world, the human rights movement has, so-to-speak, won
indigenous converts, and as a result, it is not unusual to observe the
language of human rights being used as a medium for expressing
dissent and making demands on local governments. is is the case
particularly with women’s rights activists in the Muslim world who
frequently cite international standards and obligations as a means
for exerting pressure upon their domestic governments.4 More
significantly, the revolutions of the so-called Arab Spring
demonstrated the widespread utilization of the language of rights
(huquq), demands for dignity, and social justice. ere were
persistent efforts su as the document called Wathiqat al-Azhar
hawl mustaqbal fi Misr (Azhar Statement on the Future of Egypt) in
whi the Azhar theological seminary recognized that all citizens
have basic and fundamental unwavering rights.5 However, the
tumultuous conditions into whi the countries of the Arab Spring
630
deteriorated have made aempts at deriving conclusions from these
aotic lived socio-political experiences problematic.
A number of Arab countries su as Egypt, Lebanon, and Tunisia
actively participated in draing the aspirational language of the
Universal Declaration of Human Rights as well as other international
human rights documents.6 Nevertheless, a considerable tension
remained between traditional Islamic law and the normative
demands of human rights. is was particularly the case in maers
relating to personal status laws, equal rights for women, freedom of
religion, and harsh Islamic criminal penalties for offenses su as
the, adultery, and apostasy.7 However, the primary intellectual and
theological response to the allenge of international human rights
followed a paern that had become well ingrained since the
onslaught of colonialism and the taunting criticisms of Orientalists
against the Islamic tradition and systems of belief. Colonialism, and
its accompanying institution of Orientalism, had not only played a
pivotal role in undermining the traditional institutions of Muslim
learning and jurisprudence, but it had also posed a serious allenge
to traditional Muslim epistemologies of knowledge and its sense of
moral values.8
Although international human rights law was enshrined in
various treaties during a period in whi most Muslim countries
gained political independence, the experiences of colonialism and
post-colonialism influenced the Muslim intellectual response in
several important respects. Muslims did not first encounter Western
conceptions of human rights in the form of the Universal
Declaration of Human Rights of 1948, or in the form of negotiated
international conventions.9 Rather, Muslims encountered su
conceptions as part of the ‘White Man’s Burden’ or the ‘civilizing
mission’ of the colonial era, and as a part of the European natural
law tradition, whi was frequently exploited to justify imperialistic
policies in the Muslim world.10 ere is considerable irony in the
fact that 1948, the year the Universal Declaration of Human Rights
631
was issued, is the same year that Palestinians lost their homeland.
ese experiences have had a significant impact on the
understanding of human rights in the Muslim social imaginary and
on the construction of Islamic discourses on the subject.11 Although
in the late nineteenth and early twentieth centuries there were
several systematic efforts to come to terms with the Western natural
law tradition in general,12 and human rights more specifically, the
Muslim intellectual response to the emergence of the human rights
tradition tended increasingly to range between two predominate
orientations: apologetics and exceptionalism.
e apologetic orientation consisted of an effort by a large number
of Islamists to defend and salvage the Islamic system of belief and
tradition from the onslaught of Westernization and modernity by
simultaneously emphasizing both the compatibility and supremacy
of Islam. Apologists responded to the intellectual allenges of
modernity and to universalist Western paradigms by adopting
pietistic fictions about the presumed perfection of Shari`ah and
esewed any critical evaluation of Islamic legal doctrines. A
common heuristic device of apologetics was to argue that any
meritorious or worthwhile modern institutions were first invented
and realized by Muslims. erefore, according to the apologists,
Islam liberated women, created a democracy, endorsed pluralism,
and protected human rights long before these institutions ever
existed in the West.13 e apologetic orientation raised the issue of
Islamic authenticity in relation to international human rights but did
not seriously engage it. By simply assuming that Islam presented a
genuine and authentic expression of international human rights, the
apologetic orientation made those international rights redundant.
According to the apologetic orientation, all society needed to do in
order to fully aain the benefits of human rights was to give full
expression to real and genuine Islam. But what naturally flowed
from this position was an artificial sense of confidence and an
632
intellectual lethargy that neither took the Islamic tradition nor the
human rights tradition very seriously.
An incidental effect of the apologetic movement was that it
contributed to the secularization, and therefore to the
marginalization, of human rights movements in the Muslim world. It
is notable, for instance, that human rights activists in Muslim
countries most oen belonged to a Western educated secular elite,
who typically possessed no more than a superficial familiarity with
the Shari`ah tradition. I am not arguing that all human rights
activists in Muslim countries are commied to a secular paradigm or
that they entirely ignored the Islamic tradition. e point is that
activists who articulated human rights demands in society did so
while armed with Western categories and paradigms, but their
demands did not arise from a dynamic engagement with Shari`ah
imperatives. As discussed later, in contrast to speculative theological
works of classical Islam, and the oen complex rights conceptions of
pre-modern Islam, contemporary Islamist approaes remained
superficial. For instance, during the heyday of socialist ideologies in
the third world, a large number of Islamists insisted that the
essential aracter of the Islamic approa to rights is collectivist
and not individualistic. But in the 1980s, with the increasing
influence of the United States on the world scene, a large number of
Islamists claimed that Islam emphasized individualistic conceptions
of rights and guaranteed the right to private property. Unfortunately,
as a number of commentators pointed out, even the Universal
Islamic Declaration of Human Rights, and others mentioned
previously, would have to be considered apologetic in nature.
Typically, these international instruments affirm the Universal
Declaration of Human Rights and International Covenant on Civil
and Political Rights, and are modeled aer the so-called
International Bill of Rights. But they have been criticized for failing
to resolve any of the real tensions between Shari`ah law and
633
international human rights su as the hudud punishments, and the
unequal treatment of women.14
In the 1970s, mu of the Muslim world witnessed an Islamic
resurgence, whi took the form of a powerful puritan movement
demanding a return to an authentic Islamic identity through the re-
implementation of Shari`ah law. e return to an authentic Islamic
identity as well as the call for the reassertion of Shari`ah law were
recurrent themes during the colonial era. Both the Wahhabi15 and
Salafi16 theological movements, the main proponents of puritan
Islam, had emerged during the Colonial era, and remained active
throughout the twentieth century. However, for a variety of reasons,
including the aggressive proselytizing and generous financial
support of Saudi Arabia, these two movements became practically
indistinguishable from ea other, and they also became a dominant
theological force in contemporary Islam. Puritanism resisted the
indeterminacy of the modern age by escaping to a strict literalism in
whi the text became the sole source of legitimacy. It sought to
return to the presumed golden age of Islam when the Prophet
created a perfect just polity in Medina. According to the puritans, it
was imperative to return to a presumed pristine, simple, and
straightforward Islam whi was believed to be entirely reclaimable
by a literal implementation of the commands and precedents of the
Prophet, and by a strict adherence to correct ritual practice. e
puritan orientation also considered any form of moral thought that
was not entirely dependent on the text as a form of self-idolatry, and
treated humanistic fields of knowledge, especially philosophy, as ‘the
sciences of the devil.’ It also rejected any aempt to interpret the
divine law from a historical or contextual perspective, and in fact,
treated the vast majority of Islamic history as a corruption or
aberration from the true and authentic Islam. e dialectical and
indeterminate hermeneutics of the classical jurisprudential tradition
were considered corruptions of the purity of the faith and law. In
that puritanical context, this movement became very intolerant of
634
the long-established Islamic practice of considering a variety of
sools of thought to be equally orthodox, and aempted to narrow
considerably the range of issues upon whi Muslims may
legitimately disagree.
In some of its more extreme forms, the puritans explicitly
demanded that Muslims must show enmity and hostility towards the
unbelievers (mushrikun)—insisting that a Muslim should not adopt
the customs of unbelievers, and should not befriend them. According
to these puritans, Muslim displays of enmity and hostility towards
the unbelievers must be visible and unequivocal. In this particular
puritan orientation, it was argued that it is entirely immaterial what
a non-Muslim might think about Muslim practices, and in fact, it
was a sign of spiritual weakness to care about whether non-Muslims
were impressed by Muslim behavior or not.17 In general, the puritans
espoused a self-sufficient and closed system of belief that had no
reason to engage or interact with the other, except from a position of
dominance.18 is is plainly evident in many of the fatawa (non-
binding legal opinions) issued by Saudi jurists in favor of the
institution of slavery and patriary. It is also tragically evident in
the thought of movements su as the Taliban, Al Qaeda, and ISIS.
All of these movements drink from the same spring well of
puritanical Wahhabi thought, and all exhibit a contemptuous
aitude towards the institutions and ideas of universal human
rights. It is not entirely accurate to describe the puritan orientation
as exceptionalist because the puritans did not seek a relativist or
cultural exception to the universalism of human rights. Rather, the
puritan claim was that whatever rights human beings are entitled to
enjoy, they are entirely within the purview of Shari`ah law. It is
important to realize that the puritans did not deny, in principle, that
human beings have rights; they contended that rights could not exist
unless granted by God. erefore, one finds that in puritan literature
there is no effort to justify international rights on Islamic terms but
simply an effort to set out the divine law, on the assumption that
635
su a law, by definition, provides human beings with a just and
moral order.
636
Shari`ah and human rights: between
ambiguity and determinism
In this apter, I am primarily interested in human rights as a
convictional paradigm—human rights is a moral and normative
belief about the basic worth and standard of existence that ought to
be guaranteed for any human being.19 Whether this belief is founded
on a vision of human dignity, rational capacity, or freedom from
harm and suffering, in its essence, it expresses a commitment to the
well-being of the human being. Even collectivist or communitarian
visions of rights are oen forced to justify their commitments by
claiming to provide for the well-being of most of the members of the
imagined community or collectivity.20 Importantly, visions of human
rights do not necessarily seek to exclude subjective or contextual
perceptions of rights or entitlements. Su visions are not necessarily
premised on the idea that there is a fixed set of human rights that is
immutable and unevolving from the dawn of history until today.
However, human rights visions do tend to objectify and generalize
the subjective experiences of human beings.21 By evaluating the
socio-historical experience of human beings—the demands made for
protection, and the resistance offered to these demands—and by
evaluating the impact of practices that cause suffering, degradation,
or deny people the ability to develop, it becomes possible to
articulate objectified visions of a universal set of rights that ought to
be enjoyed by all human beings.22 At the legalistic level, arguably,
the so-called Bill of International Human Rights has already
recognized what ought to be objective standards for human conduct,
and su standards are binding on all nations of the world, even to
states that have not become signatories to the two human rights
covenants.23 But whether the legal argument is valid or not, the
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universal human rights semes have the unmistakable aracteristic
of an ideology that, as noted above, resembles a religious faith in
that it believes that human beings ought to be treated in a certain
way because, quite simply, as a maer of conviction, it is what is
right and good.24 Once a claim of right is objectified, unless it goes
through a process of deconstruction and de-objectification, as a
maer of commitment and belief, it becomes binding to all, and it
also becomes a measure by whi to judge the behavior of
violators.25
One of the major aspects that human rights semes share with
the Shari`ah is the objectification of subjective experience. e
tension between religion and human rights, as systems of
convictional reference, is not in the subjective experience. Genuine
regard for human rights may be subjectively experienced in a
fashion that is entirely consistent with one’s religious convictions.26
Put differently, a religious person’s unique set of experiences may
resolve all possible tensions between his/her own personal religious
convictions and human rights. At the subjective level, individuals
may feel that they have not experienced any irreconcilable conflicts
between their commitment to human rights and their religious
convictions. Rather, the tension between the convictional systems of
religion and human rights exist in the objectified standards and
realities that ea system claims.27 Put rather bluntly, whi of the
two generalized and objectified systems warrants deference, and
whi constitutes the ultimate frame of reference? Unless one
argues, as was claimed in the classical natural law tradition, that
God willed that human beings have a particular set of rights, the
tension between the two systems becomes inevitable.28 If the
generalized and objectified set of human rights asserted by people
just happens to be exactly the same as the divinely ordained set of
rights, then, in effect, the tension is resolved, or su a tension never
really existed in the first place. e tension is most pronounced,
however, when the objectified religious experience is inconsistent
638
with the objectified claims to human rights. is is especially the
case when, as is the situation today, su claims arise from a
fundamentally secular paradigm.29
e ambiguity that one finds in modern Muslim discourses
regarding a commitment to human rights is due to the failure to
confront the two objectified experiences of Shari`ah and human
rights. e apologetic discourse avoided the issue by assuming that
the two experiences must be one and the same, and that God has
granted human beings the same set of rights found in the
international human rights discourse. But su a claim was not made
out of a process of re-objectifying or reconstructing Islam so as to
engineer su a consistency. However, in light of the colonial
experience, and the perception of the vast hypocrisy in human rights
practices, many Muslims did not take the human rights discourses
seriously enough to effectuate su an engineering of the objectified
experience of Islam.30 e puritan orientation, exemplified in the
Wahhabi movement, Al Qaeda, or ISIS, on the other hand, opted out
of the process altogether, and asserting the supremacy of Islam as a
convictional system, rejected, as a maer of principle, the process of
the re-engineering or re-objectifying of Islam in order to resolve
su a tension. is is what accounts for the puritan orientation’s
defiant stance towards contemporary international human rights
claims and its assumption that Islamic imperatives must necessarily
be very different from the imperatives set by human rights
commitments.
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What is the Shari`ah?
According to Islamic legal theory, the purpose of Shari`ah is to
aieve the welfare of people by seeking aer the righteous path—to
try to come as close as possible to it, and in doing so, promote
goodness or Godliness. In Islamic law, aieving the welfare of the
people (tahqiq masalih al-`ibad) is a term of art that is intended to
anowledge that the pursuit of abstract values, su as justice,
compassion and mercy, is supposed to translate into concrete and
tangible benefits to be enjoyed by human beings. Muslim and non-
Muslim writers oen refer to Islamic law as Shari`ah, whi is not
entirely accurate. Linguistically, the word Shari`ah literally means
the fountainhead that quenes the thirst of living beings or the way
to goodness. Jurisprudentially, the Shari`ah is the revealed guidance
of God—perfect, complete, incorruptible, immune and immutable. In
a sense, the Shari`ah provides the skeletal ethical and moral norms
of the Islamic legal system. e Shari`ah is comprehended, absorbed,
and expressed through a jurisprudential process known as the fiqh
(the human understanding of Shari`ah). While Shari`ah is Divine,
fiqh was recognized to be only potentially so, and it is the distinction
between Shari`ah and fiqh that fueled and legitimated the practice
of legal pluralism in Islamic history.
e conceptual distinction between Shari`ah and fiqh was the
result of recognizing the limitations of human agency, and also a
reflection of the Islamic dogma that perfection belongs only to God.
While Shari`ah was seen as an abstract ideal, every human effort at
understanding or implementing this ideal was considered necessarily
imperfect. Muslim jurists debated whether in the final analysis, on
every point of law, there is a single correct position, but this position
is known only to God and it is only in the Hereaer that this truth
640
will be revealed. Mu of this debate tended to revolve around a
number of traditions aributed to the Prophet. According to one
group of legal theorists, those who are ultimately proven to be
wrong will still be rewarded for their due diligence, but those who
prove to be right will receive a greater reward. e alternative point
of view, however, argued that on all maers of fiqh there is no single
truth to be revealed by God in the Hereaer. All positions held
sincerely and reaed aer due diligence are in God’s eyes correct.
is classical debate had an impact upon the development of various
doctrines and institutions in Islamic jurisprudence, the most
important of whi was negotiating the dynamics between Shari`ah
and fiqh.
In the Islamic legal tradition, there is only one Shari`ah (Shari`at
Allah) but there are a number of competing sools of thought of
fiqh (madhahib fiqhiyyah). Even the most ardent of the process-
oriented jurists did not go as far as claiming that there are no
objective and ultimate values to Shari`ah. Process-oriented jurists
contended that the sear for the Divine Will is the ultimate moral
value but only as to maers open to a fiqh inquiry. At the same time,
although all jurists embraced the theological dogma that God’s
perfection cannot be reproduced or aained by human beings, this
did not mean that they considered every aspect of Shari`ah to be
entirely unaainable or inaccessible until the Hereaer. In many
regards, one could say that Shari`ah is the unwrien constitutional
law of the Islamic common law system but because of the particular
historical practices of the sools of fiqh, su a re-conceptualization
would need to be developed analytically. For instance, it is firmly
established in the Islamic legal tradition that Shari`ah seeks to
protect and promote five fundamental values: 1) life; 2) intellect; 3)
reputation or dignity; 4) lineage or family; and 5) property.
Furthermore, Muslim jurists overwhelmingly held that there are
three basic levels of aainment or fulfillment of su values: the
necessities, needs, and luxuries. Under Shari`ah law, legal
641
imperatives increase in proportion to the level demand for the
aainment of ea value. us, when it comes to life, for example,
the legal duty to secure a person’s survival is a priori to the
obligation of guaranteeing human beings any basic needs that are
above and beyond what is necessary for survival. Nevertheless,
alongside these broad fundamental principles, historically, Muslim
jurists developed specific positive commandments that were said to
be necessary for the protection of the values mentioned above. ese
laws include, for instance, the laws punishing slander, whi were
said to be necessary for the protection of reputation or dignity, or the
laws punishing fornication, whi were said to be necessary for the
protection of lineage and family. I will discuss the hudud penalties
below, but for now it is important to emphasize that many of the
positive legal determinations purportedly serving the five values
were oen declared to be a part of Shari`ah, and not just fiqh, or
were le in a rather ambiguous and contested status between
Shari`ah and fiqh. Claiming that a positive legal commandment is
not a byproduct of fiqh but is essentially part of Shari`ah effectively
endowed su a commandment with immunity and immutability.
e boundaries between Shari`ah and fiqh were negotiated in a
variety of highly contextually contingent ways in the course of
Islamic history, but the dynamics and processes of this history
remains grossly understudied.
e application of fiqh (human understanding) to Shari`ah allows
the jurist to emerge with determinations about God’s will and law.
Essentially, through the meanics of fiqh, the values and virtues of
Shari`ah are translated into a set of duties, obligations, and rights
that allow for the realization of Shari`ah through learned and
considered judgments. In classical theory, no one can pretend that
his/her opinion or judgment is the will of God or the fulfillment of
Shari`ah unless it is based on the literal word of God that cannot
withstand different interpretations or ambiguity in meaning. In the
classical tradition, the so-called hudud offenses were cited as the
642
typical example of laws that are Divinely stipulated without
ambiguity or vagueness.
643
e allenge of the Hudud punishments
e so-called hudud punishments—whi include lashing, stoning to
death and the severing of hands—are the most controversial aspect
of Shari`ah law in the modern age. For many Muslims, they have
become the indisputable proof of the unique identity of the Islamic
legal system and also the symbol for Muslim cultural and political
autonomy. For many non-Muslims and Muslims, however, hudud
punishments are considered medieval, draconian, and barbaric.
Furthermore, many non-Muslim and Muslim solars and writers,
who are poorly informed about Islamic jurisprudence, treat these
laws as if they are the very heart and core of the Islamic legal
system. Consequently, many have come to the rather inescapable
conclusion that Shari`ah law is fundamentally incompatible with
modern conceptions of human rights.
e example of criminal penalties that include corporal
punishments, maiming, and mutilations are of special interest
because they are irreconcilable with contemporary human rights
paradigms, but they are also significant because they put us squarely
before the allenge of the immutability of r`anic law. r`anic
laws, or the special class of specific ethical commandments, although
a small and narrow part of the legal system, are of considerable
symbolic significance. is particular set of laws includes the group
of criminal sanctions that have become known as the hudud
punishments.31 Underscoring the significance of the hudud
punishments is the fact that most of these laws, as explained below,
implicate the mixed rights of God and human beings (huquq
mukhtalitah).
ere is no question that most medieval Muslim jurists considered
the hudud punishments to be part of the immutable and eternal
644
Shari`ah and, therefore, they rendered the hudud punishments not
subject to ange, modification, or abrogation. Whether intentionally
or not, most medieval Muslim jurists created the impression that it is
not possible to implement Shari`ah law without enforcing the hudud
punishments and that, in general, the hudud are integral to the
Islamic legal system. Interestingly, however, hudud punishments
were hardly ever implemented in Islamic legal history, for the most
part because Muslim jurists made the evidentiary requirements and
the tenical pre-conditions for the enforcement of the hudud
practically impossible to fulfill, or because they admied so many
mitigating factors to the point that only a criminal who was most
determined to be punished could be made to suffer the hudud
penalties.32
Whether the so-called hudud crimes ought to be considered an
immutable and permanent part of Shari`ah warrants rethinking. As
mentioned earlier, generally, the Shari`ah embodies the
aracteristics and aributes of Divinity, whi consist of general
ethical and moral teaings. However, Muslim jurists treated specific
laws, whi are explicitly commanded by God, to be a part of the
eternal Shari`ah as if these laws are in and of themselves ethical
precepts that by their nature are not subject to contingency, context,
or temporal variations.
Dealing with the hudud, Muslim jurists focused on the
punishments and not on the behavior or conduct that warranted the
penalties. In doing so, they erroneously rendered some of the
punitive measures mentioned in the r`an and Prophetic traditions
sacrosanct and eternal. But there is no plausible reason to believe
that the aributes or aracteristics of Divinity or that the ethical
precepts of Islam are embedded in specific punishments—whatever
these punishments may be. If the Divine Will was to safeguard the
hudud punishments, either as embodying the aributes and
aracteristics of God or essential ethical and moral values, it would
645
be incongruous for su punishments to be contingent, contextual,
or subject to mitigation.
In my view, the classical approa, whi tended to sanctify
particular punitive measures, and treat them as if part of the
immutable and eternal Shari`ah, is quite unfortunate. What ought to
be considered immutable and eternal are the ethical values that the
punitive measures were intended to safeguard, and not the punitive
measures themselves. e severity of the punishments mentioned in
the sources is an indication of the importance of a particular value to
the Shari`ah.
erefore, the punishments prescribed for fornication or stealing
are powerful indicators of the value that the Shari`ah places on
astity and on not stealing. e punishments themselves, however,
are contextual—they depend on a variety of factors su as:
mitigation; evidentiary certitude; the intent and purpose of the
individual perpetrator; the reliability and accountability of the
judicial system at a particular time and place; community standards;
sociologically dependent and shiing notions of cruelty, barbarity
and mercy; and the possible deterrence value of su punishments
within the context of a certain age and place.
As already noted, the classical jurists were keenly aware that to
the extent possible, an Islamic judicial system ought to avoid
applying the hudud punishments. In fact, in a well-known set of
traditions, the Prophet is reported to have taught that in criminal
maers any doubt must be construed in the light most favorable to a
defendant.
Moreover, in the case of hudud, the Prophet instructed that
Muslims ought to seek out the shadows of doubt in order to avoid
having to inflict a hadd (singular of hudud) punishment against a
defendant. According to the Prophet, if a person knows that
someone has commied a hadd crime, it is beer to help the
criminal repent than to expose the criminal by turning him in to the
authorities. Furthermore, bringing hadd arges against a suspect
646
that the accuser is ultimately unable to prove might in some
circumstances subject the accuser to punishment, and sneaking and
spying are not valid ways of proving a hadd crime.33
is principled recalcitrance and various safeguards against a
wide application of the hudud are a clear indication that the hudud
punishments themselves do not embody an ethical or moral value.
e value is in the unethical and immoral behavior that the hudud
are intended to deter. erefore, for instance, it is the ban against the
consumption of alcohol that is immutable and eternal and a part of
the Shari`ah, and not the punitive measure prescribed in the text for
the commission of su an offense.
I do realize that this argument requires something of a paradigm
shi in the way that Muslims think about the so-called hudud
punishments. Nevertheless, I believe that this paradigm shi is
critically important for the internal coherence of the Shari`ah
system. It is reasonable to deal with the ethical and moral values of
the Shari`ah as immutable, eternal and absolute, but any positive
and context-based laws are temporal and angeable.34
Beyond puritanism and apologetics, there have been some serious
efforts by contemporary Muslim solars to deal with the conflicts
between the two systems of Shari`ah and human rights paradigms.35
Methodologically, many of these efforts have tried to locate a
primary Islamic value, su as tolerance, dignity, or self-
determination, and utilize this value as a proverbial door by whi
the human rights tradition may be integrated into Islam. Other
efforts, however, have relied on a sort of original intent argument;
namely that God’s original intent was consistent with a seme of
greater rights for human beings, but that the socio-historical
experience was unable to aieve a fulfillment of su an intent.36
My point here is not to critique these methodological approaes,
and I do not necessarily even disagree with them. I do think,
however, that Islamic discourses need to go further than either
identifying core values or constructing arguments about a
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historically frustrated divine will. It is not an exaggeration to say
that what is needed is a serious rethinking of the inherited categories
of Islamic theology. Nonetheless, in my view, what is needed is not a
human centered theology, but a rethinking of the meaning and
implications of divinity, and a reimagining of the nature of the
relationship between God and creation. It is certainly true that in
r`anic discourses, God is beyond benefit or harm, and therefore,
all divine commands are designed to benefit human beings alone,
and not God. One of the basic precepts of Shari`ah is that all laws
are supposed to accrue to the benefit of human beings, who are
ultimately arged with fulfilling the Divine Covenant.37 But in and
of itself, this avowed goal of Islamic law is not sufficient to justify a
commitment to human rights. Rather, the allenge is to reimagine
the nature of the Divine Covenant, whi defines the obligations and
entitlements of human beings, in order to centralize the imperative
of human rights, and to do so from an internally coherent
perspective in Islam.
From an internal perspective, the questions are: Is the subjective
belief of human beings about their entitlements and rights relevant
to identifying or defining those entitlements and rights? And may
human beings make demands upon ea other, and God for rights,
and upon making su demands, become entitled to su rights? As
Islamic theology stands right now, the answer would clearly be that
in the eyes of God, the demands of human beings are irrelevant to
their entitlements. God is not influenced one way or the other by
human demands, and it is heretical to think otherwise. e response
given by traditional Islamic theology does not necessarily preclude a
recognition of human rights, but I do believe that su a response
creates the potential for foreclosing the possibility of giving due
regard to the evolving field of universal human rights. As I noted
earlier, in this article, I am dealing with potentialities, and not
absolute determinations. erefore, as argued below, giving a
different response to these questions could contribute to, or could
648
create a potential for resolving, what I described as the problematic
tension between human rights semes and Shari`ah law. I will
argue that in order to create an adequate potential for a realization
of a human rights commitment in Shari`ah law, it is important to
visualize God as beauty and goodness, and that engaging in a
collective enterprise of beauty and goodness with humanity at large
is part of the realizing of the divine in human life.
649
e rights of God and the rights of people
e very notion of individual rights is elusive both in terms of the
sources and the nature of those rights. Furthermore, whether there
are inherent and absolute individual rights, or simply presumptive
individual entitlements that could be outweighed by countervailing
considerations, is debatable.38 In addition, while all constitutional
democracies afford protections to a particular set of individual
interests, su as freedom of spee and assembly, equality before
the law, right to property, and due process of law, whi exact rights
ought to be protected, and to what extent, is subject to a large
measure of variation in theory and practice. In this context, I am
using a minimalist, and hopefully a non-controversial, notion of
individual rights. By individual rights, I do not mean entitlements,
but qualified immunities—the idea that particular interests related to
the well-being of an individual ought to be protected from
infringements whether perpetuated by the state or other members of
the social order, and that su interests should not be sacrificed
unless for an overwhelming necessity. is, as noted, is a minimalist
description of rights, and in my view, a largely inadequate one. I
doubt very mu that there is an objective means of quantifying an
overwhelming necessity, and thus, some individual interests ought to
be unassailable under any circumstances. ese unassailable
interests are the ones that, if violated, are bound to communicate to
the individual in question a sense of worthlessness, and that, if
violated, tend to destroy the faculty of a human being to
comprehend the necessary elements for a dignified existence.39
erefore, for instance, under this conception, the use of torture, the
denial of food or shelter or the means for sustenance, su as
employment, under any circumstances, would be a violation of an
650
individual’s rights. For the purposes of this apter, however, I will
assume the minimalist description of rights.
It is fair to say, however, that the pre-modern juristic tradition did
not articulate a notion of individual rights as privileges, entitlements,
or immunities. Nonetheless, the juristic tradition did articulate a
conception of protected interests that accrue to the benefit of the
individual. However, as demonstrated below, this subject remains
replete with considerable ambiguity in Islamic thought. As noted
earlier, the purpose of Shari`ah in jurisprudential theory is to fulfill
the welfare of the people. e interests or the welfare of the people is
divided into three categories: the necessities (daruriyyat), the needs
(hajiyyat), and the luxuries (kamaliyyat or tahsiniyyat). e law and
political policies of the government must fulfill these interests in
descending order of importance: first the necessities, then the needs,
and then the luxuries. e necessities are further divided into five
basic values (al-daruriyyat al-khamsah: life, intellect, reputation or
dignity, lineage or family, and property).40 But Muslim jurists did not
develop the five basic values as conceptual categories and then
explore the theoretical implications of ea value. Rather, they
pursued what can be described as an extreme positivistic approa to
these rights. Muslim jurists examined the existing positive legal
injunctions that arguably can be said to serve these values, and
concluded that by giving effect to these specific legal injunctions, the
five values have been sufficiently fulfilled. So, for example, Muslim
jurists contended that the prohibition of murder served the basic
value of life, the law of apostasy protected religion, the prohibition
of intoxicants protected the intellect, the prohibition of fornication
and adultery protected lineage, and the right of compensation
protected the right to property.41 Limiting the protection of the
intellect to the prohibition against the consumption of alcohol or the
protection of life to the prohibition of murder is hardly a very
thorough protection of either intellect or life. At most, these laws are
partial protections to a limited conception of values, and at any case,
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cannot be asserted as the equivalent of individual rights because
they are not asserted as immunities to be retained by the individual
against the world. It is reasonable to conclude that these five values
were emptied of any theoretical social and political content and were
reduced to tenical legalistic objectives. is, of course, does not
preclude the possibility that the basic five values could act as a
foundation for a systematic theory of individual rights.42
To argue that the juristic tradition did not develop the idea of
fundamental or basic individual rights does not mean that that
tradition was oblivious to the notion. In fact, the juristic tradition
tended to sympathize with individuals who were unjustly executed
for their beliefs or those who died fighting against injustice. Jurists
typically described su acts as a death of musabarah, a description
that carried positive or commendable connotations. Muslim jurists
produced a formidable discourse condemning the imposition of
unjust taxes and the usurpation of private property by the
government.43 Furthermore, the majority of Muslim jurists refused
to condemn or criminalize the behavior of rebels who revolted
because of the imposition of oppressive taxes or who resisted a
tyrannical government.44 In addition, the juristic tradition
articulated a wealth of positions that exhibit a humanitarian or
compassionate orientation. I will mention only some of these
positions, leaving the rest to a more extensive study.
Muslim jurists developed the idea of presumption of innocence in
all criminal and civil proceedings, and argued that the accuser
always carries the burden of proof (al-bayyinah `ala man idda`a).45
In maers related to heresy, Muslim jurists repeatedly argued that it
is beer to let a thousand heretics go free than to wrongfully punish
a single, sincere Muslim. e same principle was applied to criminal
cases; the jurists argued that it is always beer to release a guilty
person than to run the risk of punishing an innocent person.46
Moreover, many jurists condemned the practice of detaining or
incarcerating heterodox groups that advocate their heterodoxy (su
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as the Khawarij), and argued that su groups may not be harassed
or molested until they carry arms and form a clear intent to rebel
against the government.47 Muslim jurists also condemned the use of
torture, arguing that the Prophet forbade the use of muthlah (the use
of mutilations) in all situations,48 and opposed the use of coerced
confessions in all legal and political maers.49 A large number of
jurists articulated a doctrine similar to the American exculpatory
doctrine—confessions or evidence obtained under coercion are
inadmissible at trial. Interestingly, some jurists asserted that a judge
that relies on a coerced confession in a criminal conviction is, in
turn, to be held liable for the wrongful conviction. Most argued that
the defendant, or his family, may bring an action for compensation
against the judge individually, and against the Caliph and his
representatives generally because the government is deemed to be
vicariously liable for the unlawful behavior of its judges.50
But perhaps the most intriguing discourse in the juristic tradition
is that whi relates to the rights of God and the rights of people.
e rights of God (huquq Allah) are rights retained by God, as God’s
own through an explicit designation to that effect. ese rights
belong to God in the sense that only God can say how the violation
of these rights may be punished and only God has the right to
forgive su violations.51 ese rights are, so to speak, subject to the
exclusive jurisdiction and dominion of God, and human beings have
no oice but to follow the explicit and detailed rules that God set
out for the handling of acts that fall in God’s jurisdiction. In
addition, in the juristic theory, all rights not explicitly retained by
God accrue to the benefit of human beings. In other words, any right
(haqq) that is not specifically and clearly retained by God becomes a
right retained by people. ese are called huquq al-`ibad, huquq al-
nas, or huquq al-adamiyyin.52 Importantly, while violations of God’s
rights are only forgiven by God through adequate acts of repentance,
the violation of people’s rights may be forgiven only by the people.
For instance, a right to compensation is retained individually by a
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human being and may only be forgiven by the aggrieved individual.
e government, or even God, does not have the right to forgive or
compromise su a right of compensation if it is designated as part
of the rights of human beings. erefore, the Maliki jurist Ibn al-
`Arabi (d. 543/1148) states:
e rights of human beings are not forgiven by God unless the
human being concerned forgives them first, and the claims for su
rights are not dismissed [by God] unless they are dismissed by the
person concerned … e rights of a Muslim cannot be abandoned
except by the possessor of the right. Even the imam [ruler] does not
have the right to demand [or abandon] su rights. is is because
the imam is not empowered to act as the agent for a specific set of
individuals over their specific rights. Rather, the imam only
represents people, generally, over their general and unspecified
rights. 53
In a similar context, the Hanafi jurist al-`Ayini (d. 855/1453) argues
that the usurper of property, even if a government official, will not
be forgiven for his sin, even if he repents a thousand times, unless he
returns the stolen property.54 Most of these discourses occur in the
context of addressing personal monetary and property rights, but
they have not been extended to other civil rights, su as the right to
due process or the right to listen, to reflect, and to study, whi may
not be abandoned or violated by the government under any
circumstances. is is not because the range of the rights of people
was narrow—quite to the contrary, it is because the range of these
rights was too broad. It should be recalled that people retain any
rights not explicitly reserved by God. Effectively, since the rights
retained by God are quite narrow, the rights accruing to the benefit
of the people are numerous. e juristic practice has tended to focus
on narrow legal claims that may be addressed through the processes
of law rather than on broad theoretical categories that were
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perceived as non-justiciable before a court. As su, the jurists
tended to focus on tangible property rights or rights for
compensation instead of focusing on moral claims. So, for instance,
if someone burns another person’s books, that person may seek
compensation for destruction of property, but he or she could not
bring an action for injunctive relief preventing the burning of the
books in the first place. Despite this limitation, the juristic tradition
did, in fact, develop a notion of individual claims that are immune
from governmental or social limitation or alienation.
ere is one other important aspect that needs to be explored in
this context. Muslim jurists asserted the rather surprising position
that if the rights of God and rights of people (mixed rights) overlap,
in most cases, the rights of people should prevail. e justification
for this was that humans need their rights, and need to vindicate
those rights on earth. God, on the other hand, asserts God’s rights
only for the benefit of human beings, and in all cases, God can
vindicate God’s rights in the Hereaer if need be. As to the rights of
people, Muslim jurists did not imagine a set of unwavering and
generalizable rights that are to be held by ea individual at all
times. Rather, they thought of individual rights as arising from a
legal cause brought about by the suffering of a legal wrong. A person
does not possess a right until he or she has been wronged, and as a
result, obtains a claim for retribution or compensation. Shiing
paradigms, it is necessary to transform the traditional conceptions of
rights to a notion of immunities and entitlements. As su, these
rights become the property of individual holders before there arises a
specific grievance regardless of whether there is a legal cause of
action. e set of rights that are recognized as immutable and
invariable are those that are necessary to aieve a just society while
promoting the element of mercy. It is quite possible that the relevant
individual rights are those five values mentioned above, but this
issue needs to be rethought and reanalyzed in light of the current
diversity and particularity of human existence. e fact that the
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rights of people take priority over the rights of God on this earth
necessarily means that a claimed right of God may not be used to
violate the rights of human beings. God is capable of vindicating
whiever rights God wishes to vindicate in the Hereaer. On this
earth, we concern ourselves only with discovering and establishing
the rights that are needed to enable human beings to aieve a just
life while, to the extent possible, honoring the asserted rights of
God.55
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Shari`ah and the promise of human rights
I have argued that God’s sovereignty is honored in the pursuit of a
just society, and that a just society must, in pursuit of mercy, respect
human diversity and riness, and must recognize the immunities
that are due to human beings. I have justified this position on
Islamic grounds; while anowledging that this approa is informed
by the interpretive traditions of the past, it is not the dominant
approa to the subject or even a well-established approa among
Muslims in the modern era. Unfortunately, the only well-established
approaes to the subject today are the apologetic and puritan
approaes. As far as contemporary discourses are concerned, they
are replete with unjustified assumptions and intellectual shortcuts
that have seriously undermined the ability of Muslims to confront
su an important topic as human rights. In addition, partly affected
by Muslim apologists, many Western solars repeat generalizations
about Islamic law that, the least one can say, are not based on
historical texts generated by Muslim jurists. Among those
unfounded generalizations are the claims that Islamic law is
concerned primarily with duties, and not rights, and that the Islamic
conception of rights is collectivist and not individualistic.56 Both
claims, although they are oen repeated, are somewhat inconsistent,
but more importantly, they are not based on anything other than
cultural assumptions about the non-Western ‘other.’ It is as if the
various interpreters, having decided on what they believe is the
Judeo-Christian, or perhaps Western, conception of rights, assume
that Islam must necessarily be different.57 e reality, however, is
that both claims are largely anaronistic. Pre-modern Muslim
jurists did not assert a collectivist vision of rights, in the same way
that they did not assert an individualistic vision of rights. ey did
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speak of al-haqq al-`amm (public rights), and oen asserted that
public rights ought to be given preference over private entitlements.
But as a maer of juristic determination, this amounted to no more
than an assertion that the many should not be made to suffer for the
entitlements of the few. For instance, as a legal maxim, this was
utilized to justify the notion of public takings or the right to public
easements over private property. is principle was also utilized in
prohibiting unqualified doctors from practicing medicine.58 But as
noted above, Muslim jurists did not, for instance, justify the killing
or the torture of individuals in order to promote the welfare of the
state or the public interest. Even with regard to public takings or
easements, the vast majority of Muslim jurists maintained that the
individuals affected are entitled by the state to compensation equal
to the fair market value of the property taken. In addition, pursuant
to a justice perspective, one can argue that a commitment to
individual rights, taken as a whole, will accrue to the benefit of the
many (the private citizens) over the few (the members of ruling
government).
I do believe that the common good is greatly enhanced, and not
hampered, by the assertion of individual rights, but this point needs
to be developed in a more systematic way in a separate study.59 My
point here, however, is that the juristic notion of public rights does
not necessarily support what is oen described as a collectivist view
of rights.60 Likewise, the idea of duties (wajibat) is as well-
established in the Islamic tradition as the notion of rights (huquq);
the Islamic juristic tradition does not show a proclivity towards one
more than the other. In fact, some pre-modern jurists have asserted
that to every duty there is a reciprocal right, and vice versa.61 It is
true that many jurists claimed that the ruler is owed a duty of
obedience, but they also, ideally, expected the ruler to safeguard the
well-being and interests of the ruled. e fact that the jurists did not
hinge the duty to obey on the obligation to respect the individual
rights of citizens does not mean that they were, as a maer of
658
principle, opposed to affording the ruled certain immunities against
the state. In some situations, Muslim jurists even asserted that if the
state fails to protect the well-being of the ruled, and is unjust
towards them, the ruled no longer owe the state either obedience or
support.62
e widespread rhetoric regarding the primacy of collectivist and
duty-based perspectives in Islam points to the reactive nature of
mu of the discourse on Islamic law in the contemporary age. In
the 1950s and 1960s, most Muslim countries, as underdeveloped
nations, were heavily influenced by socialist and national
development ideologies, whi tended to emphasize collectivist and
duty-oriented conceptions of rights. erefore, many Muslim
commentators claimed that the Islamic tradition necessarily supports
the aspirations and hopes of what is called the ird World. But su
claims are as negotiative, reconstructive, and inventive of the Islamic
tradition as any particular contemporaneous vision of rights. In my
view, however, from a theological perspective, the notion of
individual rights is easier to justify in Islam than a collectivist
orientation. God created human beings as individuals, and their
liability in the Hereaer is individually determined as well. To
commit oneself to safeguarding and protecting the well-being of the
individual is to take God’s creation seriously. Ea individual
embodies a virtual universe of divine miracles in body, soul, and
mind. Why should a Muslim commit himself/herself to the rights
and well-being of a fellow human being? e answer is because God
has already made su a commitment when God invested so mu
of the God-self in ea and every person. is is why the r`an
asserts that whoever kills a fellow human being unjustly, it is as if
he/she has murdered all of humanity—it is as if the killer has
murdered the divine sanctity, and defiled the very meaning of
divinity.63 e r`an does not differentiate between the sanctity of
a Muslim or non-Muslim.64 As the r`an repeatedly asserts, no
human being can limit the divine mercy in any way, or even
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regulate who is entitled to it.65 I take this to mean that non-Muslims,
as well as Muslims, could be the recipients and the givers of divine
mercy. e measure of moral virtue on this earth is who is able to
come closer to divinity through justice, and not who carries the
correct religious or irreligious label. e measure in the Hereaer is
a different maer, but it is a maer that is in the purview of God’s
exclusive jurisdiction.
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Notes
* Professor of Law, UCLA Sool of Law, and the Omar and Azmeralda Alfi Distinguished
Fellow in Islamic Law. I am very grateful to my students Holly Robins and Dana Lee,
and my wife, Grace Song, for their invaluable feedba and assistance.
1 Ja Donnelly, “e social construction of international human rights,” in Human Rights
in Global Politics, eds, Tim Dunne and Niolas J. Wheeler (Cambridge: Cambridge
University Press, 1999), 71–102; Donnelly, International Human Rights: Dilemmas in
World Politics (Boulder, CO: Westview Press, 2nd ed. 1998), 3–17, 86–114; David P.
Forsythe, Human Rights in International Relations (Cambridge: Cambridge University
Press, 2000), 139–60, 217–36; Peter Swab and Adamantia Pollis, “Globalization’s
impact on human rights,” in Human Rights: New Perspectives, New Realities, eds,
Adamantia Pollis and Peter Swab (Boulder, CO: Lynne Rienner Publishers, 2000), 209–
23; Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen
(Philadelphia: University of Pennsylvania Press, 1998), 241–80. For useful
anthropological studies on the “globalization of human rights,” see Riard A. Wilson,
ed., Human Rights, Culture and Context (Chicago: Pluto Press, 1997). For a study that
analyzes this phenomenon, but is critical of the American contribution, see Diana G.
Zoelle, Globalizing Concern For Human Rights: The Failure of the American Model
(New York: St. Martin’s Press, 2000).
2 e so-called International Bill of Rights is comprised of the Universal Declaration of
Human Rights, the International Covenant on Economic, Social, and Cultural Rights,
and the International Covenant on Civil and Political Rights. See Jimmy Carter, Adolfo
Perez Esquivel, and Tom J. Farer, The International Bill of Rights (Glen Ellen, CA:
Entwhistle Books, 1981). Also, see Johannes Morsink, The Universal Declaration of
Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania
Press, 1999).
3 See Miael Ignatieff, The Rights Revolution (Toronto: House of Anansi Press, 2000); Carl
Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (Boulder, CO:
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Westview Press, 1999); Kristen Sellars, The Rise and Rise of Human Rights
(Gloucestershire: Suon Publishing, 2002); Norberto Bobbio, The Age of Rights
(Cambridge: Polity Press, 1996); Louis Henkin, The Age of Rights (New York: Columbia
University Press, 1990).
4 For instance, see Susan E. Waltz, Human Rights and Reform: Changing the Face of North
African Politics (Berkeley and Los Angeles: University of California Press, 1995), esp. 14
–34, 216–30; Kevin Dwyer, Arab Voices: The Human Rights Debate in the Middle East
(Berkeley and Los Angeles: University of California Press, 1991); George Bla, ed.,
Islam and Justice: Debating the Future of Human Rights in the Middle East and North
Africa (New York: Lawyers Commiee for Human Rights, 1997); Eugene Cotran and
Mai Yamani, eds, The Rule of Law in the Middle East and the Islamic World, Human
Rights and the Judicial Process (London: I.B. Tauris, 2000). A particularly insightful
analysis is: Katerina Dalacoura, Islam, Liberalism and Human Rights (London: I.B.
Tauris, 1998).
5 Wathiqat al-Azhar hawl mustaqbal fi Misr, June 20, 2011, available at:
www.bibalex.org/Aaments/arabic/elazhar%20arabic.pdf; English translation of the
Azhar statement available at: www.sis.gov.eg/En/Templates/Articles/tmpArticles.aspx?
ArtID=56424#.U_QYI1bwvwI (accessed September 4, 2016). Also, see Khaled Abou El
Fadl, “e Shari`ah,” in The Oxford Handbook of Islam and Politics, eds, John L. Esposito
and Emad Shahin (Oxford: Oxford University Press, 2013), 23–4.
6 ese documents include: Universal Islamic Declaration of Human Rights (1981), Cairo
Declaration on Human Rights in Islam (1990), and Arab Charter on Human Rights
(1994; 2008).
7 On the issue of the general tension between Islamic law and human rights law, see
Bassam Tibi, “Islamic law/Shari`a and human rights: International law and
international relations,” in Islamic Law Reform and Human Rights: Challenges and
Rejoinders, eds, Tore Lindholm and Kari Vogt (Oslo: Nordic Human Rights Publications,
1993), 75–96. On the response of several Muslim countries to international human rights
obligations, see Ann Mayer, Islam and Human Rights: Tradition and Politics (Boulder,
CO.: Westview Press, 3rd ed. 1999). Mayer critiques the practice of several Muslim
countries of entering reservations to human rights treaties providing that they are
bound by human rights law only to the extent that su international obligations are
662
consistent with Shari`ah law. On Islamic criminal punishments, and human rights, see
Abdullahi An-Na`im, “Toward a cross-cultural approa to defining international
standards of human rights: the meaning of cruel, inhuman, and degrading treatment or
punishment,” in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus,
ed., Abdullahi An-Na`im (Philadelphia: University of Pennsylvania Press, 1992), 19–43.
Also, see Ann Mayer, “A Critique of An-Na`im’s assessment of Islamic criminal justice,”
in Islamic Law Reform and Human Rights, 37–60. On freedom of religion in Islam, see
Nathan Lerner, Religion, Beliefs, and International Human Rights (Maryknoll, NY: Orbis
Books, 2000), 47–8.
8 See J.N.D. Anderson, Islamic Law in the Modern World (New York: New York University
Press, 1959); Anderson, Law Reform in the Muslim World (London: Athlone Press, 1976);
Wael Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge University
Press, 2001), 207–11. On the adoption of secularized law, and the emergence of Western
legal professionals in Egypt, see Farhat J. Ziadeh, Lawyers, The Rule of Law, and
Liberalism in Modern Egypt (Stanford, CA: Hoover Institution Publications, 1968), 3–61.
9 See Lynn Hunt, “e paradoxical origins of human rights,” in Human Rights and
Revolutions, eds, Jeffrey Wasserstrom, Lynn Hunt and Marilyn Young (Lanham, MD:
Rowman and Lilefield, 2000), 3–17.
10 e classic studies on orientalism and its effects remain those of Edward Said,
Orientalism (New York: Random House, 1979), and Culture and Imperialism (New York:
Vintage Books, 1994). For a probing survey of orientalism and its practices, see Bryan S.
Turner, Orientalism, Postmodernism and Globalism (London: Routledge Press, 1994), 3–
114.
11 See David Rieff, “A new age of liberal Imperialism,” in Human Rights and Revolutions,
177–90.
12 is period has been described by some solars as the liberal age of modern Islam, see
Albert Hourani, Arabic Thought in the Liberal Age: 1798–1939 (Cambridge: Cambridge
University Press, 1983); Leonard Binder, Islamic Liberalism: A Critique of Development
Ideologies (Chicago: University of Chicago Press, 1988); Daniel Brown, Rethinking
Tradition in Modern Islamic Thought (Cambridge: Cambridge University Press, 1996).
663
13 For a critical, and similarly grim, assessment by a Muslim intellectual of the impact of
apologetics upon Muslim culture, see Tariq Ramadan, Islam, the West and the
Challenges of Modernity, trans. Said Amghar (Markefield, UK: e Islamic Foundation,
2001), 286–90.
14 See Ann Mayer, “Universal versus Islamic human rights: a clash of cultures or a clash
with a construct?” Michigan Journal of International Law vol. 15, no. 2 (1994): 307–429.
e International Commission of Jurists, whi works under the auspices of the Human
Rights Commissioner, has strongly criticized the Arab Charters and the Cairo
Declaration. See International Commission of Jurists, The process of “modernizing” the
Arab Charter on Human Rights: a disquieting regression, December 20, 2003, available
at: hp://icj.wpengine.netdna-cdn.com/wp-content/uploads/2004/03/MENA-
modernising-Arab-Charter-position-paper-2004-eng.pdf (accessed September 4, 2016).
15 e foundations of Wahhabi theology were set into place by the eighteenth century
evangelist Muhammad b. ‘Abd al-Wahhab (d. 1206/1792). With a puritanical zeal, Ibn
‘Abd al-Wahhab sought to rid Islam of all the corruptions that he believed had crept
into the religion—corruptions that included mysticism, including the doctrine of
intercession, and rationalism. e simplicity, decisiveness, and incorruptibility of the
religious thought of Ibn ‘Abd al-Wahhab made it aractive to the desert tribes,
especially in the area of Najd. Ibn ‘Abd al-Wahhab’s ideas would not have spread even
in Arabia had it not been for the fact that in the late-eighteenth century, the Al Sa`ud
family united itself with the Wahhabi movement, and rebelled against Ooman rule in
Arabia. e Wahhabi rebellion was considerable, at one point reaing as far as
Damascus in the north and Oman in the south. Egyptian forces under the leadership of
Muhammad Ali in 1818, however, aer several failed expeditions, quashed the rebellion,
and Wahhabism seemed to be on its way to extinction. Nevertheless, Wahhabi ideology
was resuscitated once again in the early-twentieth century under the leadership of ‘Abd
al-`Aziz b. Al Sa`ud (r. 1319–73/1902–53) who adopted the puritanical theology of the
Wahhabis and allied himself with the tribes of Najd, thereby establishing the nascent
beginnings of what became Saudi Arabia. On the relationship between Wahhabism and
the Saudi state, see Khaled Abou El Fadl, Reasoning with God: Reclaiming Shari`ah in
the Modern Age (Lanham, MD: Rowman and Lilefield, 2014), 227–48.
664
16 Salafism is a creed founded in the late-nineteenth century by Muslim reformers su as
Muhammad ‘Abduh (d. 1323/1905), Jamal al-Din al-Afghani (d. 1314/1897), Muhammad
Rashid Rida (d. 1354/1935), Muhammad al-Shawkani (d. 1250/1834), and al-Jalal al-
San`ani (d. 1225/1810). Salafism appealed to a very basic and fundamental concept in
Islam, and that is Muslims ought to follow the precedent of the Prophet and his rightly
guided companions (al-salaf al-salih). e founders of Salafism maintained that on all
issues, Muslims ought to return to the original textual sources of the r`an and the
Sunna (precedent) of the Prophet. In doing so, Muslims ought to re-interpret the
original sources in light of modern needs and demands without being slavishly bound
to the interpretive precedents of earlier Muslim generations. Methodologically, Salafism
is nearly identical to Wahhabism except that Wahhabism is far less tolerant of diversity
and differences of opinions. By the 1980s, however, Wahhabism co-opted the language,
symbolisms, and even the very name of Salafism, and therefore, was able to spread in
the Muslim world under the Salafi label.
17 For instance see Muhammad b. ‘Abd al-Wahhab, “al-Risalah al-ula,” in Majmu`at al-
tawhid, collected by Hamad b. ‘Atiq al-Najdi (Damascus: al-Maktab al-Islami, 1962), 30–
1, 68; Ibn ‘Abd al-Wahhab, “Bayan al-najah wa al-fakak: al-risalah al-thaniyyah
‘ashrah,” in Majmu`at al-tawhid, 394, 400, 421–3, 433.
18 is was, for instance, reproduced in Sayyid tb’s notion that the world, including the
Muslim world, is living in jahiliyya (darkness and ignorance associated with the pre-
Islamic era). See Sayyid tb, Milestones on the Road (Indiana: American Trust
Publications, 1991); Ahmad S. Mousalli, Radical Islamic Fundamentalism: The
Ideological and Political Discourse of Sayyid Qutb (Syracuse, NY: Syracuse University
Press, 1993). is intellectual and moral isolationism was resisted, perhaps not very
successfully, by a variety of jurists in the first half of the twentieth century. For
instance, many of the articles published in the Azhar Journal, Nur al-Islam, in the 1930s
and 1940s aempted to engage, interact, and discourse with world thought. It is clear
that many Muslim solars, at that time, tried to stay informed about the latest in
European thought, and aempted to discuss how the latest ideas in philosophy and
sociology would impact upon Muslim culture.
19 See the discussion on this point by Miael Ignatieff, Human Rights: As Politics and
Idolatry (Princeton, NJ: Princeton University Press, 2001), 53–94.
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20 See, for instance, William F. Felice, Taking Suffering Seriously: The Importance of
Collective Human Rights (Albany: State University of New York Press, 1996).
21 Charles Taylor, “Conditions of an unenforced consensus on human rights,” in The
Politics of Human Rights (London: Verso Press, 1999), 101–19; Brian Tierney, “Religious
rights: an historical perspective,” in Religious Human Rights in Global Perspective:
Religious Perspectives, eds, John Wie and Johan van der Vyver (e Hague: Martinus
Nijhoff Publishers, 1996), 17–45. Also, see Miael J. Perry, The Idea of Human Rights:
Four Inquiries (Oxford: Oxford University Press, 1998), 57–106.
22 For instance, one can speak of a right to education because of the fact that su a right
has been demanded and oen denied. On the other hand, one normally does not speak
of a right to go to the toilet because that function is normally not demanded and then
denied. However, one might start articulating su a right if, for instance, state or non-
state actors are torturing a prisoner by denying him or her access to su facilities. I am
not necessarily articulating a sociological understanding of human rights. A right could
exist as a perennial right for eternity, but it is not recognized or claimed until human
experience demonstrates the need to recognize or claim it. On the social recognition and
promotion of rights, see Rex Martin, A System of Rights (Oxford: Clarendon Press,
1993), 24–97.
23 Reference here is typically made to jus cogens or customary international law as the
reason that non-signatory states are still bound by international human rights
standards.
24 See A.J.M. Milne, Human Rights and Human Diversity: An Essay in the Philosophy of
Human Rights (Albany: State University of New York Press, 1986), 62–78. Also, see
Riard Falk, “A half century of human rights: geopolitics and values,” in The Future of
International Human Rights, eds, Burns H. Weston and Stephen P. Marks (Ardsley, NY:
Transnational Publishers Inc., 1999), 1–24. Criticizing what he calls “personalisms,” Yves
Simon argues that the Natural Law tradition is at its weakest when it functions as
ideology, instead of as philosophy. He asserts that there is a tendency to use the Natural
Law tradition in highly politicized ways, and that this trend has greatly damaged the
credibility of this moral tradition. See Yves Simon, The Tradition of Natural Law: A
Philosopher’s Reflections (New York: Fordham University Press, 1992).
666
25 is is well exemplified by the unfortunate practice of retaliatory ‘political’ rapes that
exist in some countries. Once a woman’s right to be free of sexual molestation is
recognized, political rapes become indefensible regardless of the applicability of the
legal argument. Whether rape is mentioned in an international declaration or treaty,
and whether a particular country is a signatory to a particular covenant or not is treated
as irrelevant to assessing the moral wrong of retaliatory rapes. On retaliatory rapes, see
Shahla Haeri, “e politics of dishonor: rape and power in Pakistan,” in Faith and
Freedom: Women’s Human Rights in the Muslim World, ed., Mahnaz Ahami
(Syracuse, NY: Syracuse University Press, 1995), 161–74.
26 By an exercise of personal volition, an individual may resolve most, if not all, conflicts
between religious conviction and human rights claims. For instance, although the divine
law may decree that the hands of a thief be severed, I may refuse to sever anyone’s
hands, or even refuse to prosecute anyone if the punishment is so harsh. Likewise, I may
abstain from stoning an adulterer or adulteress to death, or refuse to take part in a
proceeding that would result in a stoning. Of course, the more a system is compulsory
and the more it denies individual volition, the more exasperated the tension becomes
between the subjective experience and human rights standards.
27 On the dynamics between religion and human rights, see Martin Marty, “Religious
dimensions of human rights,” in Religious Human Rights in Global Perspective: Religious
Perspectives, 1–16.
28 See Basil Mitell, Law, Morality and Religion in a Secular Society (Oxford: Oxford
University Press, 1967), 103–18; Riard Tu, Natural Rights Theories: Their Origin and
Development (Cambridge: Cambridge University Press, 1979), 5–31. On the religion and
the natural rights tradition, see Paul E. Sigmund, Natural Law in Political Thought
(Lanham, MD: University Press of America, 1971), 36–89; Leo Strauss, Natural Right
and History (Chicago: University of Chicago Press, 1965), 81–164.
29 See Mahmood Monshipouri, Islamism, Secularism, and Human Rights in the Middle East
(Boulder, CO: Lynne Rienner Publishers, 1998), 207–35.
30 On the issue of hypocrisy in international human rights practices and its impact upon
the credibility of the field, see Riard Falk, Human Rights Horizons: The Pursuit of
Justice in a Globalizing World (London: Routledge Press, 2000).
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31 Although the hudud are oen equated with r`anic law, not all the hudud penalties
were even mentioned in the r`an. Most notably, stoning as a punishment for adultery
and death in cases of apostasy are not derived from the text of the r`an. e r`an
neither mentions stoning nor apostasy. Moreover, corporal punishment for the
consumption of alcohol is considered to be among the hudud although it is not
r`anically based.
32 See Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation,
and Islamic Criminal Law (New York: Cambridge University Press, 2015); Rabb, “Islamic
legal maxims as substantive canons of construction: hudud-avoidance in cases of doubt,”
Islamic Law and Society 17 (2010): 63–125; Rabb, “e Islamic rule of lenity: judicial
discretion and legal canons,” Vanderbilt Journal of Transnational Law 44 (2011): 1316–
51.
33 See r`an 49:12 whi prohibits spying on people (“O you who have believed, avoid
assumption [amanu ujtanibu kathiran min al-zann]. Indeed, some assumption is sin.
And do not spy or babite ea other [wa-la tajassasu wa-la yaghtab]”) and r`an
24:27 whi prohibits entry into another person’s home without the owner’s permission.
ere is an oen quoted tradition about ‘Umar b. al-Khaab (the second caliph)
entering the house of a man without permission because he heard singing in the home.
When ‘Umar entered the house by climbing over the wall, he found the man in the
company of women and drinking wine. e man in the house told ‘Umar: “O
Commander of the Faithful, do not make haste. If I have disobeyed God once, you have
disobeyed [God] three times. God has said: ‘Do not spy’, and you have spied; God has
said: ‘It is not righteous to enter homes from the ba’, and you have climbed over my
wall; and God has said: ‘Do not enter houses other than yours’, and you have entered
my home without my permission … ’ en ‘Umar said: ‘Forgive me.’ en the man said:
‘I will. O Commander of the Faithful, if you forgive me, I will not repeat my offense.’
‘Umar forgave him and le.” See Abu Hamid al-Ghazali, Ihya’ ulum al-din (Aleppo: Dar
al-Wafi, 1998), 2:323. Also, see Rabb, Doubt in Islamic Law, 108; Rabb, “Islamic legal
maxims as substantive canons of construction: hudud-avoidance in cases of doubt,” 63–
65, 78–79, 81–83, 101–02, 107–08.
34 On contingency and temporality in law, see Khaled Abou El Fadl, Reasoning with God,
222–58, 295–300; Abou El Fadl, “e epistemology of the truth in modern Islam,”
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Philosophy and Social Criticism 41, no. 4–5 (2015): 473–86.
35 For the Iranian context, see Abdolkarim Soroush, Reason, Freedom and Democracy in
Islam, trans. M. Sadri and A. Sadri (Oxford: Oxford University Press, 2000), 61–4, 122–
30, 132–3; Ziba Mir-Hosseini, Islam and Gender: The Religious Debate in Contemporary
Iran (Princeton, NJ: Princeton University Press, 1999).
36 For instance, see Abdulaziz Saedina, The Islamic Roots of Democratic Pluralism
(Oxford: Oxford University Press, 2001); Farid Esa, Qur`an, Liberation, and Pluralism
(Oxford: Oneworld Publications, 1997); Abdullahi A. An-Na`im, Toward An Islamic
Reformation: Civil Liberties, Human Rights, and International Law (Syracuse, NY:
Syracuse University Press, 1996); An-Na`im, “Islamic foundations of religious human
rights,” in Religious Human Rights in Global Perspective: Religious Perspectives, 337–59;
Mohammad Hashim Kamali, The Dignity of Man: An Islamic Perspective (Cambridge:
Islamic Texts Society, 2002); Ahmad Moussalli, The Islamic Quest for Democracy,
Pluralism, and Human Rights (Gainesville: University Press of Florida, 2001).
37 For elaboration on this, see Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law,
Authority, and Women (Oxford: Oneworld Press, 2001), 32–3.
38 Debates on individual rights raise questions about the nature, foundations, and
universality of su rights. e historical discontinuities of individual rights suggest
that, despite the absolutist-moral overtones of some rights-talk, individual rights are the
product of complex historical processes. See Austin Sarat and omas R. Kearns, eds,
Legal Rights: Historical and Philosophical Perspectives (Ann Arbor: University of
Miigan Press, 1997); Louis Henkin, The Age of Rights (New York: Columbia University
Press, 1990); Carl Wellman, A Theory of Rights: Persons Under Laws, Institutions, and
Morals (Totowa, NJ: Rowman and Allanheld Publishers, 1985).
39 See Virginia Bla, “What dignity means,” in Common Truths: New Perspectives on
Natural Law, ed., Edward McLean (Wilmington, DE: Intercollegiate Studies Institute,
2000), 119–50.
40 Abu Hamid al-Ghazali, al-Mustasfa min `ilm al-usul (Beirut: Dar al-Arqam, n.d.), 1:286–
87; Fakhr al-Din al-Razi, al-Mahsul fi `ilm usul al-fiqh (Beirut: Mu`assasat al-Risalah,
1997), 5:159–60.
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41 Abu al-`Aynan Badran, Usul al-fiqh (Cairo: Dar al-Ma`arif, 1965), 430–1; Wahbah al-
Zuhayli, al-Wasit fi usul al-fiqh al-Islami (Beirut: Dar al-Fikr, 1969), 498–9.
42 I would argue that the protection of religion should be developed to mean protecting the
freedom of religious belief; the protection of life should mean that the taking of life
must be for a just cause and the result of a just process; the protection of the intellect
should mean the right to free thinking, expression and belief; the protection of honor
should mean the protecting of the dignity of a human being; and the protection of
property should mean the right to compensation for the taking of property.
43 See Khaled Abou El Fadl, “Tax farming in Islamic law (qibālah and d˙amān of kharāj):
A sear for a concept,” Islamic Studies vol. 31, no. 1 (1992): 5–32.
44 See Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge
University Press, 2001), 234–94.
45 ‘Ali Ahmad al-Nadhwi, al-Qawa`id al-fiqhiyyah (Damascus: Dar al-Qalam, 3rd ed.
1994), 400–1; Ahmad b. Muhammad al-Zarqa, Sharh al-qawa`id al-fiqhiyyah
(Damascus: Dar al-Qalam, 4th ed. 1996), 369–89.
46 Ibn Hajr al-‘Asqalani, Fath al-bari bi-sharh s˙ahih al-Bukhari (Beirut: Dar al-Ma`rifah,
1963), 14:308.
47 See Abu Ishaq Burhan al-Din b. Muhammad b. Muflih, al-Mubdi’ fi sharh al-muqni’
(Beirut: al-Maktab al-Islami, 1980), 9:168.
48 Muslim jurists, however, did not consider the severing of hands or feet as punishment
for the and banditry to be mutilation. Ibn Kathir al-Dimashqi, Tafsir al-Qur`an al-
`azim (Beirut: Dar al-Khayr, 1990), 2:56–7; Abu Bakr Ahmad b. ‘Ali al-Razi al-Jassas,
Ahkam al-Qur`an (Beirut: Dar al-Kitab al-`Arabi, 1986), 2:407–8; Abou El Fadl,
Rebellion and Violence in Islamic Law, 32, 50–7, 73–7, 340–1.
49 A considerable number of jurists in Islamic history were persecuted and murdered for
holding that a political endorsement (bay`ah) obtained under duress is invalid. Muslim
jurists described the death of these solars under su circumstances as a death of
musabarah (under perseverance). is had become an important discourse because
Caliphs were in the habit of either bribing or threatening notables and jurists in order to
obtain their bay`ah. See Ibn Khaldun, al-Muqaddimah (Beirut: Dar Ihya’ al-Turath,
670
n.d.), 165; Abou El Fadl, Rebellion and Violence in Islamic Law, 86–7. On the Islamic law
of duress and on coerced confessions and political commitments, see Abou El Fadl,
“Law of duress in Islamic law and common law: a comparative study,” Islamic Studies
30, no. 3 (1991): 305–50.
50 Abu Bakr Ahmad b. ‘Amr b. Munir al-Shaybani al-Khassaf, Kitab adab al-qadi, ed. F.
Ziyadah (Cairo: American University of Cairo Press, 1978), 364–5; Abu al-Hasan ‘Ali b.
Muhammad al-Mawardi, Adab al-qadi (Baghdad: Matba`at al-Irshad, 1971) 1:233.
51 Some modern Muslim commentators tried to equate the rights of God with the idea of
public rights. Muhammad Abu-Hassan, “Islamic criminal law,” in Justice and Human
Rights in Islamic Law, ed. Gerald E. Lampe (Washington, D.C.: International Law
Institute, 1997), 79–89, 81–2; Shaikh Shaukat Hussain, Human Rights in Islam (New
Delhi: Kitab Bhavan, 1990), 38–9; Mohammad Hashim Kamali, Freedom of Expression in
Islam (Cambridge: Islamic Texts Society, 1997), 10. is argument is untenable and it is
based on misunderstanding the theory behind the concept of God’s rights. For a Muslim
critique of God’s rights as the equivalent of public rights, see Fazlur Rahman, “e
concept of hadd in Islamic law,” Islamic Studies 4, no. 3 (1965): 237–51.
52 Abu Zahrah, Usul al-fiqh (Cairo: Dar al-Fikr al-`Arabi, n.d.), 256–8.
53 Abu Bakr Muhammad b. ‘Abd Allah b. al-`Arabi, Ahkam al-Qur`an, ed. ‘Ali
Muhammad al-Bajawi (Beirut: Dar al-Ma`rifah, n.d.), 2:603; Khaled Abou El Fadl,
Conference of the Books (Lanham, MD: University Press of America, 2001), 105–08.
Also, see Abu ‘Abd Allah Muhammad b. Ahmad al-Ansari al-rtubi, al-Jami’ li-
ahkam al-Qur`an (Beirut: Dar al-Kutub al-`Ilmiyyah, 1993), 6:103.
54 Abu Muhammad Mahmud b. Ahmad al-`Ayini, al-Binayah fi sharh al-hidayah (Beirut:
Dar al-Fikr, 1990), 6:482.
55 is idea is reflected in the well-known tradition aributed to the Prophet that
whenever God commands humans to do something, then they should do of it as mu
as they can. is tradition represents further recognition of the contingent and
aspirational nature of human ability, and that while humans may strive for perfection,
God is perfection, itself.
56 For this oen-repeated claim, see Lawrence Rosen, The Justice of Islam (Oxford: Oxford
University Press, 2000), 7, 79–80, 156–7; Rhoda Howard, Human Rights and the Search
671
for Community (Boulder, CO: Westview Press, 1995), 92–104.
57 For the claim that the human rights tradition is Judeo-Christian in origin, see Claudio F.
Benedi, Human Rights: The Theme of Our Times (St. Paul, MN: Paragon House
Publishers, 1997), 27–32.
58 Salim Rustum Bazz, Sharh al-majallah (Beirut : Dar Ihya’ al-Turath al-`Arabi, 1986), 31.
Muslim jurists also asserted that specific rights and duties should be given priority over
general rights and duties. But, again, this was legal principle that applied to laws of
agency and trust. Bazz, Sharh al-majallah, 43–4. Although the principle could be
expanded and developed to support individual rights in the modern age, historically, it
was given a far more tenical and legalistic connotation.
59 On this, see Simon, The Tradition of Natural Law, 86–109; Alan Gewirth, Human Rights:
Essays on Justification and Applications (Chicago: University of Chicago Press, 1982),
218–33; John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980),
205–18.
60 It might be that someone would want to argue that collectivist rights semes are
superior to individual rights semes. But a collectivist rights seme would need to be
justified on Islamic grounds as mu as an individualist rights seme. Both types of
rights semes are equally alien, or familiar, to the Islamic tradition. In addition, I do
not dispute the morality of some collectivist rights, su as the rights of indigenous
people, the right to culture, or development, and that these rights could be justified on
Islamic grounds. But from an Islamic perspective, it is mu harder to justify the
sacrificing of the safety or well-being of individuals in pursuit of a collective right. It
seems to me that the collectivist rights mentioned above are justifiable largely when a
collectivity is trying to protect its individuals and collective interests from aggression
coming from outside the collectivity. In other words, it is justifiable when a community
of people, sharing common interests, are trying to protect themselves from external
dangers. But it seems far less justifiable when the community is turning inwards, and
trying to target individuals within its own membership, under the auspices of protecting
the aracter of the collectivity against the dangers of dissent. On this issue, see James
Crawford, ed., The Rights of Peoples (Oxford: Clarendon Press, 1995); Alexandra
Xanthaki, “Collective rights: the case of indigenous peoples,” in Human Rights in
Philosophy and Practice, eds, Burton Leiser and Tom Campbell (Burlington, VT: Ashgate
672
Publishing Company, 2001), 303–13; Emily R. Gill, “Autonomy, diversity, and the right
to culture,” 285–300 in the same source.
61 On the relationship between duty and right in Roman law, and the subsequent Western
legal tradition, see Finnis, Natural Law, 205–10. e dynamic that Finnis describes is
very similar to that whi took place in classical Islamic law.
62 On this subject, see Abou El Fadl, Rebellion and Violence in Islamic Law, 280–7.
63 r`an 5:32.
64 Some pre-modern jurists did differentiate between Muslim and non-Muslim especially
in maers pertaining to criminal liability and compensation for torts.
65 r`an 2:105; 3:74; 35:2; 38:9; 39:38; 40:7; 43:32.
673
Suggested Readings
Abou El Fadl, Khaled. Reasoning with God: Reclaiming Shari`ah in
the Modern Age. Lanham, MD: Rowman and Lilefield, 2014.
Abou El Fadl, Khaled. “e human rights commitment in modern
Islam.” In Human Rights and Responsibilities in the World
Religions. Ed. Joseoph Runzo, Nancy M. Martin, and Arvind
Sharma. Oxford, UK: Oneworld, 2003, 301–64.
An-Na`im, Abdullahi A. Toward An Islamic Reformation: Civil
Liberties, Human Rights, and International Law. Syracuse, NY:
Syracuse University Press, 1996.
Dalacoura, Katerina. Islam, Liberalism and Human Rights. London:
I.B. Tauris, 1998.
Dwyer, Kevin. Arab Voices: The Human Rights Debate in the Middle
East. Berkeley and Los Angeles: University of California Press,
1991.
Kamali, Mohammad Hashim. The Dignity of Man: An Islamic
Perspective. Cambridge: Islamic Texts Society, 2002.
Kamali, Mohammad Hashim. Freedom of Expression in Islam.
Cambridge: Islamic Texts Society, 1997.
Lampe, Gerald E. ed. Justice and Human Rights in Islamic Law.
Washington, D.C.: International Law Institute, 1997.
Lindholm, Tore and Kari Vogt, eds. Islamic Law Reform and Human
Rights: Challenges and Rejoinders. Oslo: Nordic Human Rights
Publications, 1993.
Mayer, Ann. Islam and Human Rights: Tradition and Politics.
Boulder, CO: Westview Press, 3rd ed. 1999.
Moussalli, Ahmad. The Islamic Quest for Democracy, Pluralism, and
Human Rights. Gainesville: University Press of Florida, 2001.
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Saedina, Abdulaziz. The Islamic Roots of Democratic Pluralism.
Oxford: Oxford University Press, 2001.
Wie, John and Johan van der Vyver, eds. Religious Human Rights
in Global Perspective: Religious Perspectives. e Hague:
Martinus Nijhoff Publishers, 1996.
675
20
Islam, the Principle of Subjectivity,
and Individual Human Rights
Bassam Tibi1
676
Introduction
e issue area singled out in the present inquiry on Islam’s
predicament with cultural modernity relates to individual human
rights. ese are understood as law that provides legal entitlements.
is understanding is based on a concept of rights that aributes to
individuals entitlements that they claim vis-à-vis state and society.
is is a core issue of cultural modernity. I first argue generally that
individual human rights expose all religions to a radical allenge.
Islam is no exception, despite all Islamic claims to the contrary. It is
not only Christian theologians who claim that the roots of these
rights are in their own religion; Muslim revivalists similarly believe
that the origins of human rights are found in the teaings and
doctrines of Islam.2,3 Both are mistaken. Individual human rights are
intrinsically modern, and also secular; they are based on the
principle of subjectivity, of the identity of the self. is principle is
an embodiment of cultural modernity.
In short, individual human rights—in the meaning of secular
entitlements—do not exist in any religion. Period. Given these facts,
the question is: what reform do religions need to undergo and in
what kind of ange do cultures have to engage in order to
accommodate the concept of individual rights as an entitlement?
ese questions pinpoint one of the sources of Islam’s predicament
with cultural modernity, hence this article focuses on this aspect of
the predicament. e centrality of the issue of individual human
rights is the reason for its selection—aer knowledge and law—as the
subject of this piece.
677
e principle of subjectivity
In the study of individual rights and modernity Jürgen Habermas’s
The Philosophical Discourse of Modernity is a most valuable
resource. It helps to determine clearly what ‘cultural modernity’
means in substance. e book is viewed as one of the authoritative
studies on cultural modernity as based on ‘the principle of
subjectivity,’ as Habermas states in these words:
e principle of subjectivity determines the focus of modern culture … it liberates the
knowing subject … e moral concepts of modern times follow from the recognition of
the subjective freedom of individuals … founded upon the rights of the individuals.4
is principle of subjectivity materialized in the first legal concept of
individual human rights, namely—as Habermas states—“the
declaration of the rights of man … [whi] validated the principle of
freedom of will against historically preexisting law.”5
No unreformed, theocentric religion would ever share this
understanding of human rights as individual entitlements vis-à-vis
state and society. e meaning of individual human rights is
intrinsically modern, as well as secular. It contradicts all forms of
“historically preexisting law” (Habermas), primarily divine law, and
hence also the Islamic shari`a law. It follows that individual human
rights are among the issue areas of Islam’s predicament with cultural
modernity. e principle of subjectivity can also be termed ‘self-
identity,’ as in the work of Anthony Giddens, but here I follow
Habermas. e outlined substance of individual human rights is,
again, an accomplishment of cultural modernity, whi creates a
civilizational allenge to others. e Sunni Arab Middle East is in
the cultural core of Islamic civilization and it is affected by this
allenge. e focus of this statement is not an indication of Arabo-
678
centrism. Looking more closely at Islamic history, and given the fact
that the r`an was revealed in Arabic, one is compelled to
anowledge the Arab place as the cultural core of Islamic
civilization.6,7
e seminal report of the United Nations Development
Programme (UNDP)8 on the Arab Middle East refers to home-made
problems and deals with the la of validity of individual human
rights in the Islamic world. e report basically accepts the relevance
of cultural explanations. Among the shortcomings listed in the
UNDP report is the la of democratic freedom and the poor state of
individual human rights. Some authors explain the despotic rule and
authoritarianism in the Islamic world by reference to the colonial
legacy, thus placing the blame for the current state of affairs on
others. It is a fact that contemporary Islamic civilization is, by
international standards, an underaiever in the domain of human
rights. It is also a fact that people in the Islamic world are denied
freedom and individual human rights. I maintain that this is a home-
made problem, not a colonial legacy. If this evaluation is wrong, why
is India, despite its colonial legacy, a functioning democracy that
guarantees human rights to its citizens, including minorities, in their
capacity as individuals? By contrast, one might ask why Wahhabi
Saudi Arabia, a medievalist, absolute monary, has never been
subjected to colonial rule and yet las all su rights? ese
examples contradict the obsession with a colonial legacy. e
comparison between India and Saudi Arabia is not an idle one; it
shows up the error of the monocausal reference to colonialism as an
explanation not only for the la of individual human rights but also
for the problems of new states. ere are other reasons, and an
honest inquiry must consider the reality of exposure to cultural
modernity and its related predicament. Of course, there is a colonial
and post-colonial context, and I do not ignore it. However, single-
minded reference to this aspect is insufficient for an in-depth
analysis of the current issue. It is a great mistake, and also
679
Eurocentric, to view non-Western cultures solely in the European
context of colonial and post-colonial constraints.
In relation to this discussion one is compelled to ask: what is the
real issue? In Asia and Africa there are other people besides the
Western ‘tiers-mondistes’ (third wordlists).9 e nativist approa
that some third-world anthropologists elevate so as to place the
blame on others is flawed thinking. However, there are other non-
Westerners who, as rationalists, admit reasonable arguments and do
not simply throw them out of the window. e seventy Arab opinion
leaders who convened in November 1982 in Limasso, Cyprus (not in
an Arab city) to discuss ‘Azmat al Democratiyya’ (the crisis of
democracy) in the Arab world provided an example of su
rationalism in their refusal to engage in blame games. It is
remarkable that these Arabs were denied the possibility of meeting
in an Arab city and therefore went to Cyprus. I had the privilege of
joining this group, from whi the Arab Organization for the Human
Rights emerged. In our discussions in Limassol we were aware of the
fact that ‘individual human rights’ are a European concept based in
cultural modernity. We also anowledged that these rights are a
recent addition to the political ethics of Islam. At the same time we
were conscious of another fact, namely that those rights can be
established only on a local and authentic basis in the Islamic world.
In other words, individual human rights can be introduced
successfully and thrive only if they are supported by a cultural
underpinning that ensures that they will strike local-cultural and
civilizational roots. Of course, I do not overlook the institutional
dimensions, but I put those aside here in order to maintain focus.
e idea of the need for a cultural underpinning for individual
human rights relates the maer to two issues.10 First, the
compatibility of shari`a and individual human rights. In this context
I continue to argue for law reform. e second issue relates to the
allenge of individuals empowered with rights, an issue that is
embedded in the debate on Islam’s predicament with cultural
680
modernity. is issue also toues generally on the universality of
rights and on cultural relativism, as well as on the implied
particularism and authenticity.
Having made the argument clear in the foregoing remarks, I will
now add the dimension of international conflicts. ese emerge from
Islam’s predicament with modernity, as can be demonstrated by the
example of human rights. It is noted here that this conflict is not a
maer only for Muslims. e reason for this is the circumstance that
today neither the upholding nor the violation of individual human
rights is any longer the concern of a local culture or a specific
civilization in a discrete country. No intelligent person will doubt the
need for a morality shared across cultures that is based on a
common set of norms and values. is concern also encompasses an
inter-civilizationally based political culture, to be accepted by the
entire international community. Underlying this need is the place of
human rights in international relations.11
In the absence of a cross-cultural international morality and of an
inner-Islamic underpinning for individual human rights we are
compelled to connect the issues to ea other. In the Arab core of
Islamic civilization one faces a situation that was described by S. E.
Ibrahim, at an international meeting of the Club of Madrid that took
place in Mar 2005, in these words: “We freedom and human rights
loving Muslims are twisted between the autocracy of our despotic
rulers and the theocracy of the Islamists opposing their rule.”12 is
is the issue, and it makes it clear that Islamism is not the light at the
end of the tunnel, as some Westerners believe.
Truly, neither the West nor sentiments of Islamophobia can be
blamed for the severe violation of human rights in the Islamic world,
in particular at its Arab core. ose cultural relativists who dismiss
the universality of human rights by emphasizing the specific
aracter of local cultures unwiingly end up by distracting
aention from pressing issues. During the U.N. congress on human
rights in Vienna in 1993, the then Saudi Minister of Foreign Affairs
681
pretended to speak for other Muslim colleagues who were present. In
this capacity, he argued that, for Muslims, human rights are based
on and derived only from the Islamic shari`a. is is a non-starter.
Shari`a is one of the issue areas of Islam’s predicament with
modernity. e hypothesis in this piece is that shari`a is an obstacle
to individual human rights, understood as entitlements. On all
counts, shari`a is in conflict with these individual rights.
e requirement to place Islam within a universal pluralism of
cultures and religions presupposes the establishment, with Islamic
participation, of a cross-cultural understanding of human rights as
individual entitlements. e problem is that the concept does not
exist in Islam. It evolved from modern European thinking on natural
law, and further, there is nothing Christian about it. For a number of
reasons, I keep reiterating that Western civilization is secular and it
has elevated these rights within its societies to the status of secular-
legal institutional standards. Similarly, the Universal Declaration of
Human Rights (UDHR) established by the United Nations in 1948 is
secular, just as are the covenants of 1966 whi went into effect in
1976. Today these rights enjoy the status of international law. Can
one in this context talk about a universally accepted legal rule,
whether on domestic or on international grounds? e answer is
intricate, and it is yes and no. ere is no real consensus over law
and human rights. e repeated reference to the secular aracter of
both individual human rights and democracy dissociates these rights
from religious claims in order to de-legitimate the Islamist
contention of authenticity related to law and rights as entitlements.
ese are neither Christian nor Islamic.
Many of the 57 states of the Organization of the Islamic
Conference (OIC) formally endorse the notion of international law,
as well as democratic legal rule. However, this is mostly lip service.
In practice, these states are reluctant to accept a consensus on the
substance of these legal notions. e rejection of the substance of
international law, combined with recourse to shari`a, alienates
682
assertive Muslims not only from the West but also from the
international community as su. Contemporary modern Islamists,
and also the traditional ulema of Islamic fiqh-orthodoxy, believe that
the Islamic shari`a is divine law, not just a methodology or an
ethics13 for law making. e result is that the Weberian notion of
legal rule,14 being an element of cultural modernity, is not accepted.
Recognition of rights as entitlements is meaningless if there are no
legal rules within these rights whi are institutionalized and
protected by society. Let it be said candidly: the shari`a—believed to
be superior and pure, according to the worldview of Salafists and
Islamists—establishes fault lines—like those of Hungtington’s Clash
of Civilizations. Individual human rights have no legitimacy
whatsoever in the shari`a. In mobilizing against the civilization of
the West, contemporary Islamists reject the legislation of any rights
by humans. To them, this is pure heresy. In their view this would
result in dismantling the sovereignty of Allah, the one and only law
maker. In this kind of thinking the ‘principle of subjectivity’ outlined
at the outset has no place.
For Islamists only a ‘nizan al-Islami’ (Islamic system of
government)15 based on the shari`a can be admied as the correct
order. e American Sudanese legal solar Abdullahi An-Na`im
(when he was still a reformer) and the Egyptian judge Muhammed S.
al-Ashmawi argue against the revival of the shari`a whi is a
reinvented set-up.16 If tb’s views that shari`a is the only model
for Islamic civilization prevail, then totalitarian regimes like those
already existing in Iran and Sudan could refer to shari`a to
legitimate their rule.17 As An-Na`im puts it, shari`a is “not the
appropriate vehicle for Islamic self-determination in the present
context. Shari`a was in fact constructed by Muslim jurists …
although derived from the Qr`an and sunna, shari`a is not divine
because it is the product of human interpretation of those sources.”18
Where are the fault lines of a conflict between the shari`a and the
universality of human rights located?
683
at individual human rights have validity as international law
on a formal level is great progress. However, this should not distract
from the reality that—despite the present world of nation-states—
there are civilizations with their own concept of law. Civilizations
interact with one another through global communication across
borders, with no world government or central authority in place. e
U.N. provides a framework for human rights, but it has no means of
enforcing this international law.19 No other institution is capable of
enforcing legal norms worldwide. Civilizations and cultures do not
share common norms, values, and outlooks in parallel to a prevailing
and overwhelming globalization. ere is no worldview shared by
all. is fact also applies fundamentally to individual human rights.
us, the notion of establishing cross-cultural foundations for a
universal morality that is shared by all civilizations founders on the
ro of shari`a. e la of law enforcement in the system of
international relations corresponds to the laing of a cultural
legitimacy in cultures and religions because of the absence of a
consensus on core values.
Under the conditions of a Western hegemony, the plea for shared
values to connect civilizations to one another is sunk by the fact that
human rights are a cultural concept based on values that originated
in Europe.20,21 While this concept is related to cultural modernity, it
has not been successfully universalized so to give it validity for the
whole of humanity. Islam’s predicament with modernity is
embedded in this context. In world affairs there is an international
system of interaction, but there is not yet an international society
based on shared values.22 It follows that individual human rights are
not yet materially valid on an international basis. In many Islamic
countries there are ministries for human rights, but the reality does
not correspond with what they proclaim.
684
Shari`a, cultural diversity, and human rights
ere is an urgent need to join things up in the domain of human
rights. Without cultural ange and religious reform no progress can
be made in the promotion of individual human rights. It has to be
anowledged that the concept grew from the notion of natural law.
So how could it, as a secular concept, obtain legitimacy through the
assistance of a culture based on religion? Would reform help to make
this happen? Is there a morality of law?23 Is a far-reaing reform in
Islam conceivable?
Underlying the realities of individual human rights as established
in Western societies are real cultural and social processes of
individuation that have occurred in the wake of modernity. With the
adoption of its basic tenets in the UDHR in 1948, this concept
became an international one sponsored by the foremost international
institution, the United Nations. To repeat the core problem: human
rights do not only originate from a European context, they are also
abused by U.S. foreign policy. Nevertheless, they are a cultural
concept that has developed into an international law, parallel to the
fact that there is neither a world culture as a common ground for
sharing, nor a world government to enforce this law. e U.S. abuse
of human rights not only does damage to the international morality
of these rights, it also, under conditions of a “Revolt against the
West,” hampers international efforts to make the rule of law
binding.24,25
Under these conditions, individual human rights are not only
contradicted by the shari`a, whi promotes a real clash between
civilizations, but also undermined in international society. e
Islamic world is supposed to participate in the international
community, but it does not do so. e outcome is a culture and
685
religion-based conflict whi revolves around the secular and the
religious.26 e overall historical baground of the emergence of a
system and society in world affairs is the Peace of Westphalia of
1648. e community of states that emerged from this process was
exclusively European, but was named an international society. With
World War II and the overall process of decolonization, the system
was expanded to comprise the whole world; it not only assumed
diversity, but also became a source of conflict. Despite this diversity,
the system of law that had regulated the earlier European system of
states has, during the course of globalization, has become a system
of international law. e late Oxford law solar H. L. A. Hart
criticized the assumption that when a new, independent state comes
into existence “it is bound by the general obligation of international
law.”27 Hart did not share the assumed basing of the new state’s
international obligations on a consensus that evidently does not
exist. is very notion applies to the universal acceptance of the
UDHR. e assumed consent has, in reality, no corresponding
acceptance in the Islamic world, as well as in other non-Western
states.
e historical baground referred to above may explain some of
the traits of the contemporary “Revolt against the West” and
civilizational conflict. e fact of the la of a cultural underpinning
for the universalization of consent helps to explain the conflict over
human rights in non-Western cultures. Instead of su a
confrontation, one should engage in establishing cross-cultural
foundations for human rights as an appropriate basis for crossing the
fault lines that the shari`a establishes between Muslims and non-
Muslims. e issue is that human rights are situated in a globalized,
yet culturally fragmented world. To understand this, I remind the
reader not only to recall the distinction between the international
system and international society but also to understand the
simultaneity of cultural fragmentation and structural globalization
in the world of the twenty-first century.28
686
e argument for universal validity of individual human rights in
a world of rival civilizations does not ignore diversity. e problem
is that the distinctions between the international system of states as
a system of interaction among units organized as sovereign states
and international society are becoming consequential. To be sure, an
international society is not what politicians mean when they refer to
it in their window-dressing speees. As the late Hedley Bull states,
international society only
Exists when a group of states, conscious of certain common interests and common
values, form a society in the sense that they conceive themselves to be bound by a
common set of rules in their relations with one another … An international society in
this sense presupposes an international system, but an international system may exist
that is not an international society.29
A universalization of individual human rights could underpin su
an international society on a global scale. But this is wishful
thinking, not a reality. ere are no shared values. Does the la of ‘a
common set of rules’ related to the acceptance of universal human
rights mean that there exists no international society at all? Does the
Islamic world, heading towards a shari`atization that is unfavorable
to human rights, stand on its own, outside the international
community? Do Muslims reject the prevailing common values and
rules in current international society, to whi the UDHR and the
covenants of 1966 belong, only because they are European in origin?
e current surge of culturally self-assertive movements in non-
Western countries is aracterized by the hallmark of a ‘Revolt
against the West.’ Islamic fundamentalism was viewed by Hedley
Bull as the most prolific variety of this phenomenon.30,31 In the area
of international law, one can observe great resentment towards the
West, despite the fact that most non-Western countries, earlier
grouped as the “ird World,” comply, even if not wholeheartedly,
with international law. In his introduction to international law,
Miael Akehurst rightly notes: “ird World states oen feel that
international law sacrifices their interests to the interests of Western
687
states.”32 Hence, the drive towards a de-Westernization emerges as a
means to liberation. Would this also include individual human
rights? What is the Islamic position in this regard?
What complicates a proper response to the question is the former
abuse of human rights law by the United States “for Cold War
propaganda purposes.”33,34Raison d`etat-based policies are silent
about human rights violations (e.g. in Saudi Arabia), when they suit
those policies. However, this criticism of Western policies should not
be confused with the substance of the concept of human rights. Its
claim to universality stands on the establishment of a cross-cultural
basis for its validity as a foundation for international morality.
erefore, these universal rights should be defended against an
alleged Islamic authenticity.
e core issue in the debate on Islam and the universal validity of
individual human rights should be addressed in the context of
exposure to modernity and the related predicament, not as a
polemics of Western policies against instances of violation of human
rights. Aer the Vienna human rights conference of June 1993, the
foreign ministers of the Association of South East Asian
Nations/ASEAN convened in Singapore in July to turn the tables on
the European states by denouncing the European Community’s
policy of tolerating human rights violations on its own continent.35
is was happening at the time in Bosnia. It was highly deplorable,
but the convening ministers willingly missed the point. It is assumed
that human rights, as an international law, are shared by all, despite
diversity. In the domain of human rights, the cultural relativism that
contests the universality of these rights seems to prevail as an
unexamined assumption.
No doubt, the universal validity of human rights cannot be
promoted on the basis of a Western ideology of universalism. e
establishment of cross-cultural foundations is necessary so as to
make norms and values su as human rights universally acceptable.
e distinction between universalism and cross-cultural foundations
688
is oen not well understood. People of culturally different outlooks
cannot interact with one another on the basis of imposed norms and
values. Without supporting universal values by means of a local-
cultural underpinning, no cultural bridging is possible within the
context of diversity. While arguing the place of human rights as
universal rights. In plain language: cultural relativism results in
denying human rights to non-Westerners. is is a crime. However,
a sweeping Western universalism is not the solution.
e earlier reference to human rights standards at an international
level36 should not be undermined by reference to cultural diversity.
When Abdullahi Ahmed An-Na`im was a critic of the shari`a, he
argued in favor of adherence to international human rights
standards. In highlighting the interplay between the specifics of the
civilization of Islam and the universalization of human rights
standards in our present world, An-Na`im anowledged the
European origins of the modern concept of individual human rights,
as well as the conflict. Today, An-Na`im adopts the implementation
of the Islamic shari`a and abandons universally accepted standards.
In his early work An-Na`im was receptive to “a drastic reform of
Islamic law.”37 Today, he no longer condemns the violations of
human rights in the Muslim world as he did in the past, when he
was of the view that “humanity can no longer disclaim responsibility
for the fate of human beings in any part of the world.”38 e
An`Na`im of the U.S. diaspora supports shari`a and forgets that
Sudan is among those Islamic countries that violate human rights in
the name of shari`a.
Islam and human rights: torn between cultural
fragmentation and universalization: acceptance, and
rejection, or abuse
689
Different understandings of values could lead to cultural tensions
and conflict. e repeated violations of human rights in the Islamic
world are one of the sources of tensions and conflict. e
globalization of structures does not apply to the cultural terrain.
ere is no world culture and no standardization of norms, values,
and worldviews. e globalization of structures does not create a
world civilization. e reference to normative standardization makes
it imperative not to confuse two different levels or analysis. It has
become common sense to argue that shared legal frameworks are
required in order to establish a stable legal foundation for a world
order based on specific cultural norms and values. I repeat the
reference to the idea of simultaneity of structural globalization and
cultural fragmentation. e acceptance, rejection, and abuse
addressed here are embedded in this framework.
e argument for the foundation of a universal morality is not
presented in opposition to the existing cultural diversity. is
cultural diversity is not only accepted but it is also combined with
the sear for commonalities in the legal domain of human rights. In
this mindset, efforts are made to unfold a concept that can be legally
established on a cross-cultural foundation. is could pave the way
to Muslim acceptance of human rights, rather than mere lip-service
to them. It is unfortunate to anowledge that this lip service,
combined with a merely rhetorical condemnation of the violation of
human rights, forms part of the abuse. One has also observed that
references to these violations are oen discarded as Islamophobia,
while no one talks about Westphobia in the West, or anti-
Westernism in the Islamic world. In fact, no discussion of human
rights concerns in the countries of the former ird World can take
place without puing this question in the forefront. Human rights
concerns become a delicate issue when anowledgment of their
secular and ethical-universal claims is related to the example of the
foremost non-Western civilization; that is, to Islam and its legal
concepts and frameworks, described as shari`a. Only those liberal
690
Muslims who are willing to admit religious reform39 and who do not
prevaricate would be in a position to aieve this task.
Among the world’s 1.6 billion Muslims, there are a tiny minority
of liberal reform Muslims who accept individual human rights in
full. Deplorably, this minority is shrinking. An example is the retreat
of the earlier reformer An-Na`im, who once wanted an Islamic
Reformation and was critical of those who applied the shari`a to an
agenda for an ‘Islamic human rights’ seme.40,41 is ideological
framework stands in opposition to any reform in Islam. Today,
Na`im argues for shari`a. is is a tragic example for the practice of
authenticity.
Some Western authors avoid any critique of contemporary Islam
so as to escape the fashionable blame associated with the invective
‘Orientalism.’ A prominent Muslim solar, S. J. al-Azm, identified
this approa as “Orientalism in reverse.”42 For the sake of an
enlightened Islam, one must anowledge that the debate conceals
serious disparities between the establishment of Islamic human
rights semes and international human rights. e superficial
difference between those Muslims who flatly reject human rights
legal norms as Western and those who seek to establish specifically
and exclusively Islamic human rights semes is not significant. At
issue is not a party hostile to these rights and in opposition another
one that embraces them, but rather two parties who are in practice
favorable to the substance of individual human rights. e hostility
of political Islam towards substantive human rights indicates the
politicization of the cultural fragmentation of humanity. In her book
on Islam and Human Rights Ann E. Mayer states that those Islamic
authors who are at pains to establish specific Islamic human rights
semes “are reluctant to state openly that following Islamic criteria
entails departures from the norms of international law.”43 One
cannot consent to the shari`a, as An-Na`im does, and at the same
time follow universal standards of law.
691
e clié of ‘Orientalism’ is used today to aa the critics of
Islamism and I therefore discard it. In my reasoning I make a
commitment to cultural modernity, whi is by no means an
Orientalism, as is contended by the ‘Orientalists in reverse.’ My
criticism of the global political and economic dominance of the West
is clear. It is possible to engage in this criticism and yet to avoid
detrimental, anti-Western aitudes. Earlier, I coined the term
“defensive-cultural aitudes”44 so as to properly understand the
overall sentiments existing in non-Western societies, foremost
among them the Islamic ones. is culture determines the aitude of
Muslims in relation to international law, including legal human
rights concepts. ere are also cultural concepts. e link between
international relations and the claim for universality, in the sense of
a cross-cultural validity of international human rights law standards,
is based on the principles of a cosmopolitan justice. As Terry Nardin
puts it, these principles “have tended to be expressed in terms of the
idea of internationally protected human rights. e Idea of human
rights follows directly from the ideal of a universal human
community.”45 In order to take into account this most important
insight, we need to go beyond the rigid concepts established in
solarship.
In post-bipolar international relations Islam has become a political
reality that can no longer be studied properly without basing the
issues on a concept of a culture and civilization.46 is domain has
hitherto been neglected in international studies; today it is pivotal in
unraveling the existing simultaneity of structural globalization and
cultural fragmentation. ere is a cultural contestation of legal
norms and values that claim to be universalized in line with
processes of globalization. e contemporary ‘Revolt against the
West’ hampers intercultural communication47 and intensifies
cultural fragmentation. is revolt creates obstacles and
contributions to the politicization of existing value-related conflicts
between civilizations.
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In concluding on cultural fragmentation, it can be stated that the
reference to cultural differences may explain the Muslim hostility to
individual human rights. However, there are other factors. At this
point, it is important to state, from the observations made, what is
required of Muslims if they are willing to embrace the valid
standards of international human rights law.
Muslims are basically required to distinguish between the
dominance of the West and the universality of international
individual human rights law standards. It is possible to criticize one
aspect (hegemonic rule) while accepting the other (the aievements
of cultural modernity). If both aspects are confused, then no progress
can be made, particularly in the area of human rights. In su a case,
unresolved cultural conflicts will, in future, be ignited.
Individual and collective human rights—a conflict?
Islam is not only a religious faith but is also a distinct cultural
system. In this system collective, not individual, rights shape the
worldview. e concept of human rights, as Mayer rightfully
stresses, is “individualistic” in the sense “that is generally expresses
claims of a part against the whole.”48 e “part” identified by Mayer
is the individual who lives in civil society and is entitled to rights.
e “whole” is society and state in an overall political structure.
Islam is not familiar with su distinctions. In Islamic doctrine the
individual is viewed as a limb of collectivity, whi is the “umma”
(community of believers). Further, rights are entitlements and are
thus different from duties. In Islam, Muslims as believers, have
“fara`id” (duties) vis-à-vis the collectivity of the “umma-
community,” but no individual rights in the sense of entitlements. A
monolithic umma-collectivity is invented in the twenty-first century,
an imagined community in world politics. is is the legitimacy of
Islamist internationalism49 and also of Islamic identity politics.
693
A balance is needed between the individual and the collectivity.
e principle of subjectivity is based on cultural modernity, of whi
the concept of individual human rights is a basic component. It is the
concept of this subjectivity that determines humans as free
individuals. is concept underpins the processes of individuation in
the development of modern civil society. I began this article with a
reference to Habermas in order to outline the notion of the ‘principle
of subjectivity’ and I retain this reference as an orientation
throughout the piece. Is there a conflict involved?
Based on this, I contest the Islamization programs supported by
self-professed and alleged exponents of specifically Islamic human
rights semes. ese programs lead to a conflict with the standards
of international human rights law. e legal solar Ann Mayer
provides an analysis of these programs and concludes that “[t]he
Islamic semes do not offer protection for what international law
deems fundamental rights.”50 Mayer also finds that Muslim
authorities on human rights “have no sure grasp of what the
concerns of human rights are.” is conclusion is supported by
substantial analysis of basic Islamic documents on human rights. In
fact, Islamic proclamations do not embrace universal human rights
standards.
e discussion up to this point makes clear that there is a basic
conflict between cultural modernity and pre-modern doctrines. It is,
therefore, assumed that a civilizational conflict is at work. is
relates to the incompatibility of restrictions on the individual in
Islam with the notion of individual freedom in cultural modernity.
Islamic apologetic authors refuse to see this conflict between
individual rights and the Islamic situating of the individual, viewed
as a limb in an organic umma-collectivity.
In Islam not only believers but also non-Muslims are viewed as a
collectivity. In the shari`a there are restrictions not only on the
rights and freedoms of women but also on non-Muslim monotheists,
viewed as the collective religious minorities of the dhimmis. is
694
collectivity has a second-class status.51 Islamic human rights
semes are “evasive on the question of protections for freedom of
religion [t]hey also evince a general la of sympathy for the idea of
freedom of religion.”52
In short, there is a conflict between pre-modern doctrines of
obligation and universal concepts of rights as entitlements based on
cultural modernity’s principle of subjectivity. e conflict is between
obligations (fara`id) and rights. ere is a allenge to Muslims to
develop semes that are not ambivalent about human rights.
Instead of doing this work, apologetic Muslim writers claim that
Islam was the very first to establish human rights. Behind this claim
one sees a contestation of the Western concept of individual human
rights. e substance of a situation in whi Islam and human rights
are in conflict over values and worldview is denied.
e commentary addresses human rights in line with the
contributions made by major solars in the field (Vincent, Donelly,
etc.), who are based in international relations. It is argued that the
predicament of Islam with cultural modernity is one of the sources
of Islam’s inner civil war, whi is carried on in the form of a
conflict over international human rights. is conflict between Islam
and an international society framed by the West is by no means a
clash of civilizations. I have repeatedly made clear that I do not
share Huntington’s views, but I do anowledge his contribution of
bringing culture into international studies. I, therefore, refrain from
joining the club of those who discredit Huntington without ever
having read his work. ere is a clear distinction between criticism
and defamation. My concern is not to defend Huntington, but rather
the right to address the issues.
As an aside, I note that my contribution to the volume of the
former German President Herzog engages in the project of
Preventing the Clash of Civilizations. I do so without ignoring the
conflict that exists between a local-cultural worldview and an
international standard related to cross-civilizational morality. e
695
substantive issue is the globalized civilization process.53 In post-
bipolar politics civilizations maer. e civilization of Islam unites a
variety of local cultures spread throughout Asia, Africa, and parts of
Europe (12 million Muslims in the Balkans plus 20 million in the EU
diaspora). Europe was not alone in its conquests; Islam also
conquered during its period of expansion (seventh to seventeenth
centuries), whi was halted by the European expansion of modern
times.54 is reference to history makes clear that the contemporary
conflict has roots.
In the past there were not only conflicts but there were also
bridges. e Greek legacy adopted by the Muslims provided su a
bridge. At present, cultural modernity and its tradition of individual
human rights, understood as entitlements of the individual, could
establish su a bridge. ese human rights are universal; there can
be no specific Islamic human rights in the name of authenticity.
My work engages with su a proposition, but also anowledges
the constraints and obstacles to Muslims’ accommodation of cultural
modernity and its principle of subjectivity. It has become a received
wisdom to view human rights violations almost exclusively as the
result of oppressive regimes (i.e. as being primarily political in
nature). In a politically correct manner, all cultural constrains are
either overlooked or not given due importance. Above all, the
conflict between the ‘collective’ and the ‘individual’ in the concept
of rights is ignored.
Given that democracy has classical Greek roots but evolved as a
political culture in the West, one can state that there are bridges.
Hellenism was shared by the Islamic rationalism of medieval Islam.
Muslims of today need to emulate their own tradition of rationalism
to whi the contemporary rationalist Mohammed al-Jabri55 points
an orientation. is debate can be continued at length, however here
it suffices to point out that Hellenized Islam is relevant to the sear
for a cultural foundation for human rights in contemporary Islam.
696
In a project run in a beer time under the leadership of An-Na`im
at the Wilson Center in Washington,56 we asked how civilizational
standards of human rights could be respected in non-Western
societies in whi democratic values are not established, and also
what should be done to make Muslims speak the language of human
rights in their own tongue. If this cultural foundation could be
accomplished, then the conflict could be resolved. e remedy for
dealing with Islam’s predicament with the standards of international
individual human rights law is for Muslim states that are members
of the international system to join international society. is can be
done by embracing the universal morality that stems from global
civilization standards. ere are barriers to the global establishment
of human rights. It has to be stated candidly and in plain language
that these barriers are also related to the values of local cultures.
Based on the work of Norbert Elias, one can make reference to his
notion of The Civilizing Process in order to advance the argument
that humanity could share common standards.57 Human rights
should be part and parcel of these standards, to be established inter-
civilizationally. However, this vision requires cultural ange and
religious reform. In her clear analysis of the failure to meet
international standards of human rights in the Islamic World, Ann
Mayer fails, however, to properly grasp the issue when she
mistakenly argues that “the stakes in the bale over human rights
standards are ultimately political.”58 Against this misleading
argument I maintain that there are definitely cultural obstacles to
the establishment of human rights standards in Muslim countries.
ese obstacles underpin the conflict addressed in this section.
A basic requirement for establishing acceptable universal
standards of morality and law in Islam—as in any other civilization—
is the acceptance of individual human rights. Muslims are allenged
to learn how to come to terms with the principle of subjectivity.
Solars who are preoccupied with cultural diversity and
constrained by the rules of political correctness in their study of the
697
Islamic world end up falling into the trap of ‘Orientalism in reverse.’
I repeat: in the beginning, Said had a point, but today his thinking
has become an obscure concept that is not worth the expenditure of
any time. Most damaging is the fact that the concept of Orientalism
does not allow any criticism, whether of despotic regimes ruling the
Middle East, of fundamentalism, or of the Islamic pre-modern view
of the world. All these ills go undisputed, in the name of respect and
recognition for other cultures.
e Western debate on Orientalism did not exclude the field of
human rights. In fact, those who are supposed to subscribe to or who
are susceptible to Orientalism claim that the ‘Orient’ is different
from the West. Difference becomes sacral. Ann Mayer makes the
point that the critique of Orientalism in the domain of human rights
runs into the same seme; that is, of accepting “the quintessentially
Orientalist notion that the concepts and categories employed in the
West to understand societies and cultures are irrelevant and
inapplicable in the East.”59 Apologetic Muslims join in, condemn
critical comparisons, and believe that they see in them “sinister
political objectives” of “Jews and crusaders.”60 I am a Muslim and I
ask: is it legitimate that I can be tortured, in violation of my
individual human rights, in the name of diversity? I leave the reader
to answer that question.
While viewing Islam on a global scale in cultural terms, I do not
ignore the diversity of local cultures within Islamic civilization. I
also avoid making sweeping generalizations. Despite a great inner-
cultural diversity within this civilization, local Islamic cultures share
the common standards of their civilization. Related to it, they also
have a worldview in common. Solars who exclusively stress the
diversity of Islam oen ignore that Muslims, be they in the Middle
East, South Asia, or sub-Saharan Africa, share a common and
virtually consistent worldview and speak of themselves as a
civilizational entity. In this manner they view the self as an umma-
collectivity. Of course, this is an imaginary collectivity, but there is
698
something to it, otherwise no one would take notice of it in
international politics. Islamic civilization is a real, not a constructed
entity. It maers to world politics and to the study of international
conflict with the aim of world peace based on peaceful conflict
resolution.
e notion of common civilizational standards of human rights is
in conflict with contemporary Islamism. e violations of human
rights are related not only to the practices of undemocratic regimes
but also to the Islamization programs of the opposition. e issue is
not that simple. In a recent article an Egyptian author states plainly:
“While Arab elites at least pay lip service to democracy, democratic
ideals seem to be of far less concern to the broader public …
[D]emocracy is not at present a major concern of the Arab masses.”61
While the undemocratic regimes in the Middle East use the concept
of ‘fara`id’ (duties), they did not invent it. It is an Islamic cultural
concept, as old as Islam itself. In the Islamic worldview of the
majority of Muslims there is no concept of rights. Exposure to the
individualistic concept of human rights and its values leads to
conflicts. Individual human rights are not accepted by the Islamist
opposition to undemocratic regimes. Both rulers and their opponents
use Islam for legitimatory purposes. Both define a religious-cultural
collectivity against individual rights. With regard to individual
human rights as entitlements, one is reminded of the statement of S.
E. Ibrahim, quoted in the introductory section of this apter:
“liberal Muslims are twisted between authoritarian rulers and
totalitarian Islamists.”62
To conclude, and in short, rights have to be established on a cross-
cultural basis in a local cultural seing and also to be protected
institutionally. e absence of a cultural concept to underpin these
rights in some local cultures forces their absence in the societies of
those cultures. Reference to oppressive regimes and their
undemocratic programs, as well as to the Islamization of the
opposition, cannot convincingly explain the problems at issue.
699
Again, the issue is cultural modernity and the predicament of some
pre-modern cultures in coming to terms with it. Cultural ange in
developing cultures and religious reform are the roads to
establishing individual human rights in the Islamic civilization. e
boom line is that rights are universal and so there are no
specifically ‘Islamic human rights.’
700
Conclusion
e argument of this apter has been supported by two sources.
One is normative. It is Habermas’s reference to the “principle of
subjectivity” as the ba-bone of cultural modernity from whi the
individual human rights emanate.63 e other is both descriptive and
analytical. e UNDP report of 2002 anowledges that the la of a
culture and related institutional practice of human rights is a home-
made phenomenon in the Islamic countries of the Middle East. e
report describes and analyzes the sad state of affairs in the Middle
East. Both sources explain the ills of the contemporary Islamic
Middle East and are most pertinent to the analysis provided in this
apter, whi focuses on the predicament of Islam with individual
human rights as a predicament with cultural modernity. e
inference is the need for anges in the cultural system of Islam. e
obstacles in the way of establishing Islamic human rights standards
are related to prevailing cultural paerns and to the related
worldview.64
e conclusion of this apter is that there is an interrelation
between Islam and culturally based resistance to human rights. In
the context of structural globalization and cultural fragmentation
one can dismiss the ideology of universalism. is is justified, but
still it is an escape. In contrast, I argue in favor of the establishment
of cross-cultural foundations for the norms and values of human
rights on legally and politically universal grounds. I am not playing
with words when I opt for universality of values and at the same
time criticize the idea of universalism. Muslims could embrace
universal values and engage in a cultural ange that would alter
their worldview and the cultural paerns and aitudes related to it.
e conflict stated in this apter, between Islamic human rights
701
semes and international human rights standards, could be resolved
if Muslims were to admit ange and reform. However, if they fail,
then tensions will continue to prevail and could then assume the
shape of an inter-civilizational conflict. is can be averted. e
oen-advanced accusation of ‘essentialism’ with reference to
culturally based resistance to individual human rights in Islam is
pure defamation, and has no basis. It results from unwillingness to
understand the conflict at issue and has to deal with its roots.
Existing Islamic human rights semes do not contribute to
resolution of the conflict that has been identified. ey conceal
rather than reveal the conflict emanating from a predicament with
modernity. ese semes obscure the incompatibility between
individual and collectively-oriented concepts and the related conflict
that is analyzed in this apter. Further, they blur the boundaries
between duties and rights. Again, to understand this issue properly
one has to deal with the deep-seated dominant, cosmological
worldview among most Muslims. I contend that the prevailing
Islamic view of the world is the crucial source of the Islamic
predicament with cultural modernity, and thus with individual
human rights that claim universality. e present conflict within
Islam, to whi Ann Mayer briefly refers, is not a new one.
Nevertheless, Islamic human rights authors “uphold the primacy of
Revelation over reason and none endorse reason as a source of law,” 65 as Mayer rightly states. is is the major source of the conflict,
whi is one between a human-/reason-centered and a cosmological-
theocentric view of the world. A similar conflict existed in medieval
Islam, when Hellenized Islamic rationalists were accused of heresy
by the Islamic fiqh-orthodoxy because they admied human reason
in obtaining a proper knowledge of the world. is reference
reinforces the meaning of the ‘principle of subjectivity’ (i.e. the
human-centered view of the world) for any legal underpinning that
determines human beings as individuals entitled to freedom.
Individual human rights are therefore individual entitlements. is is
702
part and parcel of cultural modernity based on the ‘principle of
subjectivity.’ For an Islamic adoption of this concept Muslims need to
engage in a ‘reform on Islamic law.’ No individual human rights can
be aieved in the Islamic world without relating the issue to the
very basic normative and structural requirements of cultural
modernity and to the worldview emanating from it. Cultural
borrowing is not alien to the positive ‘heritage of Islam.’
It is distressing to see a Muslim who formerly stated an
“incompatibility of shari`a and modern standards of International
Relations and human rights”66 and today seeks shelter in the shari`a.
e stated incompatibility is a fact. It creates tensions, among other
things, between a cosmological-theocentric and a human-centered
view of the world. e resulting cultural fragmentation in the
structurally globalized system of international relations leads to
conflict. e best conflict resolution would be for Muslims to
embrace human rights as entitlements, whi presupposes a serious
dealing with the predicament with cultural modernity. Muslims need
to go beyond relating man to ‘fara`id’ (obligations), not rights. is
requirement is not fulfilled by the current politicization of Islam into
a religious fundamentalism. e issues addressed in this apter are,
first, a concern for Muslims, but since the conflict is not restricted to
the Islamic civilization the issue is also pertinent to world politics.
e universal morality of human rights is necessary for a peaceful
resolution of conflicts between Islam and international society. is
would be a contribution to establishing commonalities in order to
bridge between the conflicting civilizations. What could be more
appropriate in this pursuit than an international acceptance of
human rights in world politics,67 also accepted by Muslims?
However, only on the basis that they do their homework.
Today, under the conditions of post-bipolar politics, we live in a
anged world. Islam is increasingly significant to world politics,
together with the expanding presence of Muslims in Europe and in
North America. is leads to a more intense interaction between
703
civilizations. is factor stresses the need for a “common discourse
about ethics.”68 is apter articulates a conflict between shari`a
claims and secular individual human rights that affects post-bipolar
world politics. e needed ethics have to be based in cultural
modernity. In contrast to this need, the contemporary Islamist
shari`a reasoning is based on a supremacist worldview that claims
moral superiority over others. It is articulated in the formula “al-
Islam ya`lu/Islam is superior.” is mindset hampers cultural ange
and religious reform and intensifies Islam’s predicament. e la of
individual human rights in the Islamic world69,70 prevents Muslims
from joining in with the age of globalization, and no claim to
authenticity can support this negative state of affairs.
704
Notes
1 is apter is adapted from apter 4 of Bassam Tibi, Islam’s Predicament with
Modernity: Religious Reform and Cultural Change (New York: Routledge, 2009).
2 Sheykh Muhammad al-Ghazali, Human Rights: Between the Teachings of Islam and the
UN-Declaration, 3rd Printing ed. (Cairo, Dar al-Kutub al-Islamiyya, 1984).
3 Mohammad Imara, Islam and Human Rights: Obligations, Not Rights (Cairo: Dar al-
Shuruq, 1989).
4 Jürgen Habermas, The Philosophical Discourse of Modernity (Cambridge, MA: MIT
Press, 1987), 17.
5 Ibid.
6 Bassam Tibi, “e Middle East: society, state, religion,” in Identities and Conflicts: The
Mediterranean, ed. F. Cerruti and R. Ragionieri (London: Palgrave, 2001), 121–34.
7 Marshall G. S. Hodgson, The Venture of Islam: Conscience and History in a World
Civilization (Chicago, IL: University of Chicago Press, 1974).
8 UNDP, Arab Human Development Report (New York: United Nations, 2002).
9 Peter Worsley, The Third World, 2nd ed. (Chicago, IL: Chicago University Press, 1967).
10 CAUS, ed., Crisis of Democracy in the Arab World (Beirut: CAUS-Press, 1983).
11 R. J. Vincent, Human Rights and International Relations (Cambridge: Cambridge
University Press, 1986).
12 Saad Eddin Ibrahim, “Democracy, terrorism, and security” broure for the International
Summit on Safe Democracy, Terrorism, and Security (Madrid: Club de Madrid, Mar 8
–11, 2005).
13 Ann Elizabeth Mayer, “e Shari`ah: a methodology or a body of substantive rules?,” in
Islamic Law and Jurisprudence, ed. Niolas Heer (Seale, WA: University of
Washington Press, 1990), 177–98.
705
14 Max Weber, “Drei Formen Der Herrsa,” in Soziologie, Weltgeschichtliche Analyse,
Politik (Stugart: Alfred Koerner Verlag, 1964), 151–66.
15 Muhammad Salim al-`Awwa, On the Political System of the Islamic State, 6th ed. (Cairo:
al-Maktab al-Masri, 1983).
16 Abdullahi an-Na`im, Toward an Islamic Reformation. Civil Liberties, Human Rights and
International Law (Syracuse, NY: Syracuse University Press, 1990).
17 Sayyid tb, The Predicament of Civilization, 9th ed. (Cairo: al-Shuruq, 1988).
18 Abdullahi an-Na`im, Toward an Islamic Reformation. Civil Liberties, Human Rights and
International Law (Syracuse, NY: Syracuse University Press, 1990), 185.
19 Tom J. Farer, “e UN and human rights: more than a whimper, less than a roar,” in
United Nations, Divided World: The UN’s Role in International Relations, ed. Adam
Roberts and Benedict Kingsbury (Oxford: e Clarendon Press, 1988), 95–138.
20 Ja Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell
University Press, 1989).
21 Susan E. Waltz, Human Rights and Reform. The Changing Face of North African Politics
(Berkeley, CA: University of California Press, 1995).
22 Hedley Bull, The Anarchical Society: A Study of Order in World Politics (New York:
Columbia University Press, 1977).
23 Terry Nardin, Law Morality and the Relationship of States (Princeton, NJ: Princeton
University Press, 1983), 27–48.
24 H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: e Clarendon Press, 1961).
25 Hedley Bull, “e revolt against the West,” in The Expansion of International Society, ed.
Hedley Bull and Adam Watson (Oxford: e Clarendon Press, 1984), 117–213.
26 Mark Juergensmeyer, The New Cold War? Religious Nationalism Confronts the Secular
State (Berkeley, CA: University of California Press, 1993).
27 H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: e Clarendon Press, 1961), 22.
28 Bassam Tibi, Islam between Culture and Politics, 2nd ed. (New York: Palgrave, 2005).
706
29 Hedley Bull, The Anarchical Society: A Study of Order in World Politics (New York:
Columbia University Press, 1977), 13.
30 W. M. Wa, Islamic Fundamentalism and Modernity (London: Routledge, 1988).
31 Bassam Tibi, The Challenge of Fundamentalism. Political Islam and the New World
Disorder (Berkeley, CA: University of California Press, 2002).
32 Miael Akehurst, A Modern Introduction to International Law, 6th ed. (London: Unwin
and Hyman, 1987), 21.
33 Riard Falk, “Refocusing the struggle for human rights in the ird World,” Harvard
Human Rights Journal 4 (1991), 63.
34 Edward S. Herman, “e United States versus human rights in the ird World,”
Harvard Human Rights Journal 4 (1991), 85.
35 Miael Riardson, “Asians turning tables, denounce EC on Bosnia,” International
Herald Tribune, July 28, 1993, 2.
36 R. J. Vincent, Human Rights and International Relations (Cambridge: Cambridge
University Press, 1986) 92–108.
37 Abdullahi an-Na`im, Toward an Islamic Reformation. Civil Liberties, Human Rights and
International Law (Syracuse, NY: Syracuse University Press, 1990) 185.
38 Ibid.
39 Mohamed Mahmoud Taha, The Second Message of Islam (Syracuse, NY: Syracuse
University Press, 1987).
40 Sheykh Muhammad al-Ghazali, Human Rights: Between the Teachings of Islam and the
UN-Declaration, 3rd Printing ed. (Cairo, 1984).
41 Mohammad Imara, Islam and Human Rights: Obligations, Not Rights (Cairo: Dar al-
Shuruq, 1989).
42 Bryan Turner, Orientalism, Post-modernism and Globalism (London: Routledge, 1994).
43 Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO:
Westview Press, 1991), 198.
707
44 Bassam Tibi, The Crisis of Modern Islam (Salt Lake City, UT: University of Utah Press,
1988), 1–8.
45 Terry Nardin, Law Morality and the Relationship of States (Princeton, NJ: Princeton
University Press, 1983), 274.
46 Bassam Tibi, Islam and the Cultural Accommodation of Social Change (Boulder, CO:
Westview Press, 1990).
47 Molefi Kete Asante and William B. Budykunst, eds, Handbook of International and
Intercultural Communication (London: Sage Publications, 1989).
48 Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO:
Westview Press, 1991), 68.
49 Ibid., 71.
50 Bassam Tibi, Krieg der Zivilisationen (Hamburg: Hoffman and Campe, 1995), 127–61.
51 Bet Ye`or, Islam and Dhummitude (Cransbury, NJ: Associated University Presses, 2002).
52 Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO:
Westview Press, 1991), 186.
53 Norbert Elias, The Civilizing Process, 1st ed. (New York: Urizen Books, 1978).
54 Bassam Tibi, Kreuzzug und Djihad (Muni: Bertelsmann, 1999).
55 Mohammed Abed al-Jabri, Arab Islamic Philosophy (Austin, TX: CMES, 1999).
56 Bassam Tibi, “e European tradition of human rights and the culture of Islam,” in
Human Rights: Cross-Cultural Perspectives, ed. Abdulhahi A. An-Na`im and Francis
Deng (Washington, DC: e Brookings Institution, 1990), 104–32.
57 Norbert Elias, The Civilizing Process (New York: Pantheon, 1982).
58 Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO:
Westview Press, 1991), 211.
59 Ibid., 9.
60 Mahias Küntzel, Jihad and Jew Hatred. Islamism, Nazism and the Roots of 9/11 (New
York: Telos Press, 2007).
708
61 Mustapha K. Al-Sayyid, “Slow thaw in the Arab World,” World Policy Journal, 8,4 (1991),
724.
62 Saad Eddin Ibrahim, “Democracy, terrorism, and security.”
63 Juergen Habermas, The Philosophical Discourse of Modernity (Cambridge, MA: MIT
Press, 1987).
64 Bassam Tibi, Islam between Culture and Politics, 2nd ed. (New York: Palgrave, 2005).
65 Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO:
Westview Press, 1991), 58.
66 Abdullahi an-Na`im, Toward an Islamic Reformation. Civil Liberties, Human Rights and
International Law (Syracuse, NY: Syracuse University Press, 1990), 184.
67 David P. Forsythe, Human Rights and World Politics, 2nd ed., revised (Lincoln, NE:
University of Nebraska, 1989), 189–228.
68 John Kelsay, Islam and War: A Study of Comparative Ethics (Louisville, KY: John Knox
Press, 1993), 3–5.
69 Katerina Dalacoura, Islam, Liberalism and Human Rights (London: Tauris, 1998).
70 Kevin Dwyer, Arab Voices: The Human Rights Debate in the Middle East (Berkeley, CA:
University of California Press, 1991).
709
Selected Bibliography
An-Na`im, Abdullahi. Toward an Islamic Reformation. Civil
Liberties, Human Rights and International Law. Syracuse, NY:
Syracuse University Press, 1990.
Dalacoura, Katerina. Islam, Liberalism and Human Rights. London:
Tauris, 1998.
Donnelly, Ja. Universal Human Rights in Theory and Practice.
Ithaca, NY: Cornell University Press, 1989.
Dwyer, Kevin. Arab Voices: The Human Rights Debate in the Middle
East. Berkeley, CA: University of California Press, 1991.
Falk, Riard. “Refocusing the struggle for human rights in the third
world,” Harvard Human Rights Journal vol. 4 (1991).
Forsythe, David. Human Rights and World Politics. Lincoln, NE:
University of Nebraska, 1989.
al-Ghazali, Sheykh Muhammad. Human Rights: Between the
Teachings of Islam and the U.N.-Declaration. Cairo, 1984.
Habermas, Jürgen. The Philosophical Discourse of Modernity.
Cambridge, MA: MIT Press, 1987.
Juergensmeyer, Mark. The New Cold War? Religious Nationalism
Confronts the Secular State. Berkeley, CA: University of
California Press, 1993.
Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and
Politics. Boulder, CO: Westview Press, 1991.
Tibi, Bassam. “e Middle East: society, state, religion,” in Identities
and Conflicts: The Mediterranean, ed. F. Cerruti and R.
Ragionieri. London: Palgrave, 2001.
Tibi, Bassam. Islam between Culture and Politics. New York:
Palgrave, 2005.
710
UNDP. Arab Human Development Report. New York: United
Nations, 2002.
Vincent, Raymond John. Human Rights and International Relations.
Cambridge: Cambridge University Press, 1986.
Weber, Max. “Drei Formen Der Herrsa,” in Soziologie,
Weltgeschichtliche Analyse, Politik. Stugart: Alfred Koerner
Verlag, 1964.
711
21
e OIC, Human Rights, and
Religion
Rejection, reconciliation, or
reconceptualization?
Marie Juul Petersen
712
Introduction1
e Organization of Islamic Cooperation’s new human rights
commission, the Independent Permanent Human Rights Commission
(IPHRC), was presented in 2011 as: “A paradigm shi within the OIC
in the way universal human rights and freedoms flow together with
Islamic values.”2 A few years earlier, then Secretary General
Ekmeleddin I ˙ hsanog˘lu had bluntly stated the need to refine the
organization’s 1990 Cairo Declaration on Human Rights in Islam “in
keeping with the current global human rights discourse.”3 is was,
in the eyes of I˙hsanog˘lu and others in the organization, the task of
the IPHRC. But what did this alleged paradigm shi entail? And,
was it a paradigm shi in terms of norms or merely a shi in
rhetoric? is apter analyzes the shi in conceptions of human
rights in the OIC, from the Cairo Declaration to the IPHRC, paying
particular aention to the role of religion in this. is apter argues
that the establishment of the IPHRC could, at least initially, be seen
as a fundamental shi from the Cairo Declaration’s Islamically
defined alternatives to the rights enshrined in international human
rights documents towards an insistence on the validity of these and,
ultimately, their legal authority over Islamic law. Somehow blurring
the picture, however, the emergence of the ‘traditional values’
agenda points towards a third, and arguably more popular, position
within the OIC, relying on the language of universal human rights,
but subordinating them to the authority of Islamic law (albeit coined
as traditional values). is testifies to the fact that human rights are
not best understood as fixed and static concepts, but are beer
conceived in terms of a politics of constant contestations, allenges,
and reconceptualizations.
713
e OIC is one of the world’s largest intergovernmental
organizations, oen presenting itself as “the U.N. of the Muslim
world.”4 It was established in September 1969, upon the initiative of
Morocco and Saudi Arabia, and prompted by the arson in the Al-
Aqsa Mosque a month before.5 e organization today consists of 57
mostly Muslim-majority states from the Middle East, Asia, Africa,
and Latin America, and is headquartered in one of its most powerful
member states, Saudi Arabia.6 Unlike most other international
organizations, the OIC does not rely on common geopolitical
interests or a specific cause. As a multi-purpose organization made
up by states from four different continents, the OIC las the
common geopolitical interests that arguably unite regional
organizations like the Organization of American States, the African
Union, the European Union, or even the Association of Southeast
Asian States; and it las the clear focus of single-purpose
organizations su as the International Organization for Migration,
the World Health Organization, or even the organization’s own
Islamic Development Bank.
“Ensuring to safeguard and protect the interests of the Muslim
world,”7 the OIC instead relies on a shared religious identity to hold
the organization together. As noted in the organization’s Charter, the
OIC is determined “to preserve and promote the loy Islamic values
of peace, compassion, tolerance, equality, justice and human dignity.” 8 But this is no easy task. e OIC’s member states make up an
extremely varied group of countries, not only in terms of economic
status, political systems, and cultural traditions, but also in terms of
different roles and interpretations of Islam—from a state religion in
some member states to a minority religion in others; from a highly
conservative Wahhabi ideology in some states to almost secular
cultural practices and traditions in others. Further complicating the
maer is the OIC’s strongly state-centric nature, emphasizing
principles of sovereignty and non-interference. e organization’s
arter declares that the OIC is determined “to respect, safeguard
714
and defend the national sovereignty, independence and territorial
integrity of all Member States,” and “to respect the right of self-
determination and non-interference in the domestic affairs and to
respect sovereignty, independence and territorial integrity of ea
Member State.”9 In total, the arter mentions sovereignty seven
times throughout the document. e primacy accorded to state
sovereignty diminishes the organization’s authority, complicating its
efforts to work as a supranational body in the field of human
rights.10
us, the OIC must balance between the organizational need for a
strong common Islamic identity and member state demands for
sovereignty and non-interference, both presenting different
allenges to the organization’s human rights involvement. In this
context, what are the OIC’s conceptions of human rights? How does
the organization reconcile these conceptions of human rights with its
need for a common Islamic identity? How does it satisfy member
state demands for a high degree of sovereignty? Exploring these
questions, the present apter zooms in on two of the OIC’s most
important human rights initiatives, the Cairo Declaration from 1990
and the IPHRC from 2011, analyzing shiing conceptions of human
rights and the role of religion in this context. is apter then asks
whether this shi has shaped more recent human rights initiatives of
the IPHRC, focusing on discussions of family and traditional values.
is analysis can contribute to a beer understanding of an
organization that, until recently, has been largely overlooked in
literature on international organizations and human rights. Marred
by internal disagreements, and sometimes outright conflicts, the OIC
has historically been a relatively peripheral actor on the
international scene. However, even if the organization has not been
able (or willing) to implement concrete human rights initiatives on
the ground, the OIC is a potentially influential actor in other ways.
Speaking as the ‘collective voice of the Muslim world,’ the OIC
possesses a strong normative voice among member states and in the
715
international human rights system, contributing to shaping
conceptions of human rights and religion. As su, an analysis of the
OIC can contribute to our understanding of the nexus between Islam
and human rights. Mu literature on Islam and human rights
provides valuable insights into especially legal, theological and
historical aspects of this relationship. is literature, however,
remains largely theoretical, focusing on religious texts and
traditions, and seeking broad generalizations about the relationship
of these to human rights.11 As su, there is a la of empirical case
studies on contemporary religious actors and how they engage with
specific human rights discourses, how they approa, adopt and
allenge these discourses, and not least on how they, in so doing,
perhaps contribute to redefining both human rights and religion.12
716
e Cairo Declaration on human rights in
Islam: ‘binding divine commandments’
Historically, the OIC has had a complicated and conflict-ridden
relationship with the international human rights regime, and with
the concept of universal human rights as su. Although Palestinian
self-determination—a political problem with a strong human rights
dimension—was one of the catalysts for the founding of the OIC, the
organization did not develop a comprehensive human rights
approa in its first decades. In fact, human rights issues were rarely,
if at all, mentioned at the organization’s summits or the annual
conferences of foreign ministers. Dominated by conservative,
authoritarian states su as Saudi Arabia and Iran, the organization
instead tended to focus on activities su as protection of Islamic
holy sites, development of Islamic fiqh, or economic cooperation
between member states.13
As human rights moved higher up on the international agenda
during the 1980s, OIC member states started paying greater aention
to this, albeit not always in ways that aligned with those of Western
states. Among many of the OIC’s member states, there was in fact a
deep-seated scepticism about the U.N. human rights system. In
discussions at the U.N. General Assembly in 1981, the new Islamic
Republic of Iran made it clear that “the Universal Declaration of
Human Rights, whi represented a secular understanding of the
Judeo-Christian traditions, could not be implemented by Muslims.”14
en Iranian President Khamenei put it even more bluntly:
When we want to find out what is right and what is wrong, we do not go to the United
Nations: we go to the Holy Koran [ … ] For us the Universal Declaration of Human
Rights is nothing but a collection of mumbo-jumbo by disciples of Satan.15
717
From the perspective of Iran and other OIC member states, the rights
in the Universal Declaration of Human Rights were not universal
but a particular Western invention, grown out of Western history,
traditions, and values, and as su at odds with non-Western
religious and cultural values, whether African, Asian, or Islamic.
Reflecting this scepticism toward the U.N. system and of the
Universal Declaration of Human Rights, in 1990, the OIC presented
the Cairo Declaration of Human Rights in Islam—the result of a
meeting of legal experts on Islamic jurisprudence in Teheran the
year before.16 Inspired by, among others, the twentieth century
Islamic revivalist Abul Ala Mawdudi, the authors of the Cairo
Declaration claimed that “fundamental rights and universal
freedoms are an integral part of [Islam]” and these rights and
freedoms are “binding divine commandments” revealed to the
Prophet Muhammad in the r`an, eoing Mawdudi’s statement
that “when we speak of human rights in Islam we really mean that
these rights have been granted by God; they have not been granted
by any king or by any legislative assembly.”17
According to the proponents of the Cairo Declaration, Islam is the
source of human rights. Human rights are inherently and
authentically Islamic, defined by Shari`a rather than international
human rights law. As stated in the declaration’s concluding articles,
“[a]ll the rights and freedoms stipulated in this Declaration are
subject to the Islamic Shari`ah” and further, “[t]he Islamic Shari`ah
is the only source of reference for the explanation or clarification of
any of the articles of this Declaration.” rough Shari`a, Islam can
define rights legally, just as well as—or in fact beer than—
international law can. Religion is, in this perspective, not merely or
even primarily about values, traditions and community—it is about
law, and its role in relation to human rights as that of legal source.
is conception of religion has consequences for the relationship
between Islam and human rights. Even though the Cairo Declaration
has been described by the OIC as “a complement to the Universal
718
Declaration of Human Rights,”18 its understanding of Shari`a as the
legal foundation for human rights positions it as a rejection of, and
alternative to, the Universal Declaration of Human Rights. In fact,
international human rights law is not even mentioned in the
declaration itself.
eoretically, it is possible to argue for compatibility between
Islamic law and the Universal Declaration of Human Rights; in fact,
this is what solars like Mashood Baderin, Abdullahi An-Naim and
others have sought to demonstrate in their work.19 But, as Anthony
Chase has noted, even the most liberal interpretation of Islamic law
remains potentially anti-pluralist insofar as it implicitly assumes an
Islamic monopoly on the public sphere, making the justification of
human rights a question of religious doctrine and subordinating
non-religious arguments for human rights.20 Furthermore, in
practice most proponents of Islamic law do not adhere to An-Naim’s
or Baderin’s liberal interpretations, but tend to emphasize a literalist,
conservative interpretation, severely limiting and oen flat-out
contradicting existing human rights standards. According to An-
Naim, most traditional interpretations of Shari`a accept the
subordinate status of religious minorities, circumscribe women’s
rights, and prohibit conversion from Islam.21 is is also the case in
the Cairo Declaration, whi in the words of Kayaoglu “is the
product of OIC member states with centralized, conservative
interpretations of Islamic law that include Iran and Saudi Arabia.”22
To take the issue of women’s rights, one of the most controversial
issues, e Declaration’s Article 6 states that “woman is equal to
man in human dignity, and has rights to enjoy as well as duties to
perform; she has her own civil entity and financial independence,
and the right to retain her name and lineage.” Granting women
‘equal dignity’ but not equal rights, the Declaration contradicts
fundamental human rights principles of non-discrimination and
equality among all human beings.
719
What is equally problematic is the failure of the Cairo Declaration
—and the OIC—to specify what exactly constitutes Shari`a. What
does it mean, for instance, when Article 22 of the Declaration states
that: “Everyone shall have the right to express his opinion freely in
su manner as would not be contrary to the principles of the
Shari`ah”? e ambiguity of su restrictions counters aempts in
the international human rights system to develop increasingly
specific definitions, instruments, and modes of implementation.
Making maers worse, in the absence of an international authority
to define Shari`a, the interpretation and definition of Shari`a is most
oen le to the state, meaning that the Cairo Declaration in effect
empowers governments rather than protects individuals.23 As Chase
notes, using the ambiguity of Shari`a to empower governments’
ability to define what is or is not a human right is in direct
contradiction with mainstream conceptions of human rights as a tool
to limit and control the power of governments for the protection of
those on the margins of power.24
As su, and unlike regional instruments su as the European,
Inter-American, and African human rights regimes, whi ea have
tried to supplement rather than contradict international human
rights, the OIC’s Cairo Declaration is best understood as an aempt
to supplant and override international law.25 e Declaration’s
conception of human rights as based on and defined by Islamic law
is difficult to reconcile with international human rights norms; and
the proponents of the Cairo Declaration had no wish to do so. For
them, religion was a language of external opposition and resistance
to the U.N. human rights system, a way to present an alternative set
of rights, emphasizing religious authority, dignity and protection of
the community over pluralism, rights and individual freedom. At the
same time, the ambiguity of the religious language and the la of
enforcement meanisms made plenty of room for member states to
interpret Islamic law according to their own national legislation; as
su, the Cairo Declaration maintained the delicate balance between
720
rhetorically promoting Islamic unity and practically ensuring
member state sovereignty.
721
Reform of the OIC: from conference to
cooperation
Despite this, the Cairo Declaration never gained mu influence,
neither in the OIC and among its member states nor more broadly
among Muslim human rights solars and activists (Kayaoglu 2014).
e declaration was not legally binding, and no steps were taken to
ensure and monitor its implementation. As noted by Baderin,
e la of an interpretative or enforcement organ has rendered the OIC Cairo
Declaration on Human Rights in Islam a dormant document, whi neither the Muslim
states nor the OIC as a body formally refers to in the face of sometimes obvious
violations of basic and fundamental human rights in some Muslim states.26
Cismas comes to similar conclusions. Going through OIC member
state reports on the U.N. Conventions on Civil and Political Rights,
Women’s Rights and Children’s Rights, she observes that member
states rarely refer to the declaration as part of their legal framework.
In fact, in the period from 1990 to 2012, the Cairo Declaration was
only mentioned three times.27
With the increasing expansion and institutionalization of the
international human rights system during the 1990s, few people
believed that it was realistic—or even desirable—to work for an
alternative rights system. e war on terror further emphasized the
inevitability of the international community and the impossibility of
maintaining parallel structures. Rather than isolating itself, the OIC
increasingly sought to promote itself as a full-blown member of the
international community. A large reform of the organization took
place in the mid-2000s, complete with a revision of the original
arter and the laun of a new Ten Year Programme of Action.
Introducing a stronger focus on issues su as humanitarian aid,
722
women’s empowerment, peace-building efforts and—not least—
human rights, the OIC sought to strengthen its position as a relevant
actor on the international scene and increase its visibility and
credibility both among Muslims and in the broader global public.28
is shi was further cemented with the organization’s 2011 ange
of name, from ‘Organization of the Islamic Conference’ to
‘Organization of Islamic Cooperation,’ signalling a move from the
organization’s original emphasis on dialogue and consultation
among member states to a policy of action and engagement with key
governments, international organizations and multilateral structures
su as the U.N., OSCE, and NATO, institutions of global
governance, and even NGOs.29
is ange was, at least in part, facilitated by the shiing power
relations internally in the OIC. While Saudi Arabia and Iran, both
major contributors to the organizational budget, maintained a strong
position in the organization, the 2000s saw the emergence of new
powerful voices, with Turkey and other so-called moderate Muslim
states, su as Malaysia, Morocco and Indonesia, gaining increasing
clout in the organization.30 e 2005 election of Ekmeleddin
I ˙ hsanog˘lu as Secretary General further contributed to this
development. Explicitly promoting an agenda of ‘moderation and
modernization,’31 I ˙hsanog˘lu saw human rights as the vehicle for
reforming and rebranding the OIC “from a paroial, intra-Muslim
conference, to a top tier, international organization that both
influences Great Power relations and shapes the policies of global
governance structures on norms, values, rights, and laws questions
viewed as non-negotiable for the interest of the Muslim world.”32
723
e independent permanent human rights
commission
Hailed by the organization as a “boost [to] the OIC’s credibility in
the eyes of the outside world,”33 the Independent Permanent Human
Rights Commission came to be a manifestation of this ange. Under
the heading ‘Human Rights and Good Governance,’ the 2005 Ten
Year Programme of Action called upon the OIC’s foreign ministers
“to consider the possibility of establishing an independent
permanent body to promote human rights in the Member States, in
accordance with the provisions of the Cairo Declaration on Human
Rights in Islam.”34 A few years later, the amended Charter of the OIC
reiterated the Programme of Action’s call for the establishment of an
Independent Permanent Commission of Human Rights, to support
member states in their implementation of international human rights
obligations. In February 2009, an informal advisory panel was
established to elaborate a set of dra statutes for the OIC to
consider.35 e revised statutes were adopted at the Astana Council
of Foreign Ministers in Kazakhstan at the end of June 2011, where
the commission’s 18 experts “of established distinction in the area of
human rights” (Article 3) were also elected.
e objectives of the IPHRC, as outlined in the commission’s
statutes, Articles 8 and 936 are: “e Commission shall seek to
advance human rights and serve the interests of the Islamic Ummah
in this domain [and] support the Member States’ efforts to
consolidate civil, political, economic, social and cultural rights.”37 As
su, the statutes did not give the commission mandate to monitor
and investigate human rights violations in specific member states.
e main purpose of the IPHRC was—and is—to assist member
states in meeting their human rights obligations, su as by
724
providing expert advice on how to live up to the conventions they
have ratified, clarifying obligations and implications of the
conventions, assisting member states in making efforts to remove
reservations, and improving national legislation in order to bring it
into alignment with international human rights standards. e
commission can formulate recommendations to the Council of
Ministers whi can then make resolutions and decide on a course of
action, but the commission itself has no power to impose sanctions
on member states that do not live up to their obligations. e
commission is further restricted in the sense that it can only offer
advice to “approving Member States” (Article 14, my emphasis). As
su, the IPHRC is an advisory organ, with a consultative rather
than protective function.38 However, for an organization su as the
OIC that has historically prioritized protection of state sovereignty
over intergovernmental authority, this was still a major step,
opening up for introspection and internal discussions on human
rights. As a representative from one of the member states said at the
meeting in Astana:
is is the first time su an exercise is being carried out in the Muslim world. It will be
100 times beer to hear what is happening in our countries from our own people rather
than from the outside world [ … ] Of course, we are not in the habit of hearing any
criticism from fellow member states, but eventually we will learn to set our houses in
order to avoid aracting criticism.39
Furthermore, and as pointed out by several staff members in the
IPHRC secretariat, the mandate to “submit recommendations on the
refinement of OIC human rights declarations and covenants” (Article
17) gave the commission interpretive authority to define and shape
the OIC’s conceptions of human rights and religion.
725
Human rights as they are generally
understood within the U.N.
Against this baground, what kinds of human rights would the
IPHRC advance and support? While the preamble to the IPHRC’s
statutes does recall the Cairo Declaration on Human Rights in Islam,
overall the statutes and the Rules of Procedure point towards a
conception of human rights that is mu closer to the U.N.
Declaration on Human Rights than the Cairo Declaration. According
to the Rules of Procedure of the IPHRC, the commission shall
advance human rights “in conformity with the universally
recognized human rights norms and standards.” A staff member in
the commission’s secretariat clarified this: “e term ‘human rights’
in the name of the Independent Permanent Human Rights
Commission means human rights as they are generally understood
within the U.N. and the rest of the world.” Another staff member
elaborated further on the difference between the IPHRC and the
Cairo Declaration:
e very fact that the Ten Year Program and the summit in Mecca decided to establish a
commission indicates a progressive movement from the Cairo Declaration. If the Cairo
Declaration were sufficient, there would be no need for a commission. e Cairo
Declaration was a first step, we have moved beyond that now. e Cairo Declaration is
a declaration, the human rights commission is a statutory commission—you decide
what is most important!
As su, the establishment of the IPHRC cannot be seen as an
aempt at establishing an alternative human rights system, as the
Cairo Declaration arguably was; instead, it was an aempt at
integrating the OIC into the existing human rights system. In fact,
when directly asked whether the OIC wanted a separate system for
Islamic human rights, then Secretary General Ihsanoglu said: “I
726
believe that universal human rights are compatible with Islam [and]
we look forward to integrating our system with the United Nations
system.” At the first session of the IPHRC in Jakarta in February
2012, he further emphasised the need for the commission to
complement rather than replace other national and international
human rights meanisms. Ihsanoglu encouraged the commission’s
experts to engage actively in the U.N. human rights system,
aending the Human Rights Council sessions in Geneva and ird
Commiee deliberations in New York and establishing strong
working relationships with regional human rights meanisms from
Europe, Africa, Asia, and Latin America.40
Significantly, neither the IPHRC’s statutes nor the Rules of
Procedure make any mention of Islamic law. Unlike in the Cairo
Declaration, human rights are sourced from international law, not
Islamic law. “Rather than trying to create a parallel structure in
whi human rights are subsumed within an Islamic framework, the
OIC has adopted the language of both international law and an
implied universality of human rights.”41 is primacy of human
rights law over Islamic law is further emphasized by the fact that the
commission’s 18 experts have to be of “established distinction in the
area of human rights” (Article 3), while there are no formal
requirements as to their expertise in Islamic law. is does not mean
that there is no role for Islam in human rights, however. But instead
of law, religion is conceived in terms of teaings, values and
principles. As stated in the preamble to the statutes, the commission
shall promote human rights “in conformity with Islamic values,” just
like the rules of procedure mention “the added value of Islamic
principles of justice and equality.” In this perspective, the role of
Islam is not that of a strict legal framework, defining human rights;
instead, Islam is what provides the guiding values and principles for
interpreting human rights.
At least theoretically, that opens up for complementarity and
alignment with the international human rights system. As Heiner
727
Bielefeldt notes, “the principles of human rights and democracy can
be connected meaningfully with the spirit of the shariah, provided
that the shariah is primarily understood as an ethical and a religious
concept rather than as a legalistic one.”42 And that seemed to be
what the IPHRC’s experts were aiming for. During its first sessions,
the IPHRC explicitly promoted an understanding of Islam as a moral
source of support for human rights rather than a legal alternative to
human rights. At a press conference, the commission’s first
airperson, Indonesian solar and women’s rights activist Siti
Ruhaini, claimed that she did not intend to “apply a hybrid
understanding of human rights as filtered through Islam,” explicitly
emphasizing the U.N. human rights standards as the commission’s
legal frame of reference and implicitly distancing herself from the
Cairo Declaration.43 In other words, the IPHRC would uphold
internationally agreed-upon human rights, and, where possible,
enri these with Islamic teaings. Islamic teaings would not be
interpreted in a way that conflicts with or undermines universal
human rights or excuse the OIC member states from protecting and
promoting human rights.44 One of the commission’s first activities,
according to Ruhaini, was to be a review of member state
reservations to U.N. conventions, especially CEDAW, with the
purpose of recommending removal of those reservations that were
deemed to be contrary to the spirit of the convention. As Ruhaini
noted: “If Indonesia can sign CEDAW without sharia reservations, I
think there is a ance others can too.”45
As su, the establishment of the IPHRC marked a paradigm shi
in terms of the ways in whi the relation between human rights
and Islam was conceived within the OIC. Contrary to the
proponents of the Cairo Declaration who denied any legitimacy to
universal human rights and the U.N. human rights system,
prioritizing instead the authority of Islamic law, the proponents of
this new position argued for the compatibility of Islamic and
728
universal human rights, seeking to interpret Islamic values in a way
to make them conform to universal rights.46
729
Traditional values and ‘the normal scope of
human rights’: a return to the Cairo
Declaration?
Now, how does this paradigm shi look a few years down the line?
Did it turn out to be substantial in the sense that it has led to actual
anges in the OIC’s approa to human rights? In terms of concrete
activities and initiatives, the IPHRC has been a disappointment.
Apart from regular press statements on a variety of issues, the
IPHRC does not seem to have produced any substantial texts on
human rights, or to have initiated any other concrete initiatives.
Meetings with other human rights actors have been few and
scaered, and Ruhaini’s review of member state reservations was
never initiated. Restricted from the beginning by a narrow mandate
and the need for member state approval of almost all initiatives, the
IPHRC’s first years have witnessed further limitations to its room
for manoeuvre. Saudi Arabia has regained (or reclaimed) its place in
the organization as the most powerful member, insisting that the
secretariat of the IPHRC be permanently placed in Jeddah, and thus
making it difficult for the IPHCR to engage in meaningful
cooperation with other human rights organizations, whether
international or member state-based. Other obstacles, su as a la
of sufficient funding and human resources to support the secretariat,
have contributed further to restricting the work of the IPHRC’s
commissioners. Finally, the diversity of the group of IPHRC
commissioners—in terms of baground, relations to home
governments, and knowledge of human rights—may explain the
commission’s failure to initiate common human rights activities.
730
What is perhaps more problematic than the commission’s la of
productivity is the apparent shi in conceptions of human rights and
religion, witnessed in recent reports from the commission’s latest
sessions. In the April 2015 session, for instance, the IPHRC discussed
‘the protection of family values.’ In its statement from the session,
the commission reaffirmed “the fundamental definition of family as
a long-term consensual relationship between a man and a woman
who are bound by the reciprocal rights and responsibilities
enshrined in Islamic teaings,” reiterating that “men and women
enjoy equal human dignity and fundamental human rights but have
different roles and responsibilities within the family and society, and
that Islam nowhere implies superiority or inferiority to either of the
sexes.”47 e conceptions of rights and religion underlying su
statements are a far cry from the initial statements of the IPHRC.
Instead, they seem to be mu closer to the so-called traditional
values agenda in the U.N.
In recent years, and in alliance with, among others, Russia and
China, OIC member states have consistently promoted the notion of
‘traditional values’ as a counter narrative to the emerging movement
to conceptualize human rights as applicable to sexual orientation
and gender identity.48 In the perspective of the proponents of
traditional values, these are what define human rights, not
international law. As the Russian member of the Advisory
Commiee to the Human Rights Council wrote in a report on
traditional values: “All international human rights agreements,
whether universal or regional, must be based on, and not contradict,
the traditional values of humankind. If this is not the case, they
cannot be considered valid.” As su, traditional values—or religion—
have primacy over human rights, in mu the same way as Islamic
law had primacy over human rights in the Cairo Declaration.
Furthermore, in mu the same way as the Cairo Declaration’s
reliance on ambiguous and ill-defined notions of Islamic law, the
vague notion of traditional values safeguards member state demands
731
for sovereignty and non-interference within the human rights
framework. As the IPHRC has noted, “every country has the right to
formulate their laws and regulations based on their value systems,
including in family affairs,” and that this has been “affirmed in many
provisions within international laws and international human right
instruments.”
Unlike the Cairo Declaration, however, the traditional values
agenda does not reject the U.N. human rights system or the notion of
universal human rights. Instead, this agenda finds its justification
precisely in the human rights system, coined in a human rights
language. e IPHRC criticizes proponents of, for example, LGBTI
rights and certain women’s rights, not for violating Islamic law, but
for
Promot[ing] non-universal and divisive concepts as human rights, whi would not
only be counterproductive for the promotion of international human rights regime but
would also undermine the existing unity that is essential to upholding and ensuring the
implementation of present universally agreed human rights regime.49
Similarly, the Secretary General of the OIC, Iyad Madani, has noted
that while OIC countries have “willingly adopted and implemented
international human rights norms,” there are a number of issues
“that go beyond the normal scope of human rights.”50 As su, the
traditional values agenda is best understood as an aempt at
reinterpreting rather than rejecting human rights, making them fit
with (conservative) Islamic values. is places proponents of
traditional values between, on the one hand the Cairo Declaration’s
rejection of human rights and insistence on the authority of religion
to define rights, and on the other hand the IPHRC’s initial aempts
to reconcile Islam and human rights, at least tentatively arguing for
the authority of human rights over Islamic law. As the laer, the
traditional values agenda argues for the compatibility of religion and
human rights, but, as the former, it relegates the ultimate authority
to religion.
732
Conclusion
e above sket of human rights conceptions in the OIC, however
brief and incomplete, raises a number of important points. First, it is
obvious that we have witnessed a shi in the ways in whi the OIC
conceives of rights—from the Cairo Declaration’s Islamic,
particularist rights to the universal human rights of the IPHRC. is
testifies to the increasing discursive hegemony of the human rights
system. With the institutional expansion and discursive hegemony
of the human rights system, it is no longer possible for international
organizations to maintain a legitimate outside position, arguing for
alternative rights based on divine law. is means that traditional
diotomies between universalism and particularism fall short of
explaining the OIC’s position on human rights and religion. While
the organization does still deploy a particularist critique of human
rights at times, in most other instances the critique is formulated in
terms of an alternative universalism, making the conflict over
human rights as mu a conflict between competing and sometimes
contradictory universalisms.51
Second, to work inside the (secular) human rights system requires
adjustments on the part of religion. As su, the analysis testifies to
the banal, but nonetheless important fact that ‘religion’ is not a fixed
and stable category but is constantly shiing, contested and
reformulated, infused with different functions and meanings at
different times and in different contexts. e analysis has sketed
the shi from conceptions of religion as law to values and traditions.
Here, religion as values and tradition are beer fits than religion as
law, capable of accommodating to the language of human rights
universality. It is difficult to maintain an understanding of religion as
law without at least to some degree undermining the authority of
733
human rights law. As values and traditions, however, religion can
co-exist with international human rights law.
ird, recent initiatives show that these shis in language and
conceptions do not necessarily reflect deeper normative shis, and
that fundamental conflicts over rights remain. As Kayaoglu notes,
“[e]ven if the Cairo Declaration has diminished in importance, the
sharia-related issues it raises—freedom of spee, women’s rights,
freedom of religion—will remain central to any serious aempts to
improve human rights in the Muslim world.”52 e analysis of recent
human rights initiatives demonstrates that the OIC is still a staun
defender of conservative gender relations and protection of religious
authority—only now the organization does not justify its stance with
reference to Shari`a, but to ‘universal human rights standards’
grounded in ‘traditional values.’ Adapting its conceptions of religion
to fit the secular human rights system, the OIC uses the space and
political influence alloed to them by the liberal democratic
structures of the U.N. as a strategy to promote what they consider to
be authentic family values and protection against religious
discrimination—and what others would claim to be gender
discrimination and restrictions on freedom of expression.
As su, this is a good example of the contemporary politics of
human rights. Human rights are not stable and fixed, conclusively
accepted once and for all, but remain contested even aer their
internalization in law and institutions; and “co-optation, dri,
accretion and reversal of [human rights norms] are constant
possibilities.”53 Studying the OIC and the ways in whi it seeks to
redefine, reinterpret and renegotiate human rights can help us to
beer understand this politics of human rights. It can help us beer
grasp that the spread of human rights norms is not a straightforward
process of diffusion and institutionalization. To the contrary, human
rights are continuously being expanded, continuously being bloed,
and in those processes continuously being reconceptualised at
multiple levels. ose reconceptualizations can, as Chase notes, be
734
about furthering human rights’ potential for empowering
marginalized populations, but they can also be about furthering a
contradictory conception, one that perversely uses human rights
language to advance the power of states and their elites.54
735
Notes
1 is apter builds on discussions with and input from other solars on the OIC,
including in particular Anthony Chase, Turan Kayaoglu, and Heini Skorini.
2 OIC Journal, issue 17, 2011, 15, hp://issuu.com/oic-
journal/docs/oic_journal_issue_17_en_2011 (accessed October 20, 2015).
3 “OIC gears Up to Establish Human Rights Commission,” Today’s Zaman, April 13, 2009,
www.todayszaman.com/diplomacy_oic-gears-up-to-establish-human-rights-
commission_172301.html (accessed October 20, 2015).
4 Turan Kayaoglu, The OIC’s Independent Permanent Human Rights Commission: An
Early Assessment (Copenhagen: Danish Institute for Human Rights, 2014), 4.
5 Saad S. Khan, Reasserting International Islam (Oxford: Oxford University Press, 2001).
6 Founding member states were Afghanistan, Algeria, Chad, Egypt, Guinea, Indonesia,
Iran, Jordan, Kuwait, Lebanon, Libya, Malaysia, Mali, Mauritania, Morocco, Niger,
Pakistan, Palestine, Yemen, Saudi Arabia, Senegal, Sudan, Somalia, Tunisia and Turkey,
with new members being included in a steady flow since then, the latest being Côte
d`Ivoire in 2001. India, home to the world’s second largest Muslim population (175
million people), has shown interest in joining the OIC as an observer nation, but
inclusion has been bloed by Pakistan, due to disagreements over Kashmir (FDGG
2008:7). See Jacob M. Landau, The Politics of Pan-Islam: Ideology and Organization
(Oxford: Oxford University Press, 1994) for a history of Islamic pan-Islamism, including
the emergence of the OIC. See Turan Kayaoglu, The Organization of Islamic
Cooperation: Politics, Problems, Potential (Abingdon: Routledge, 2015) for a general
introduction to the OIC.
7 oted from the website of the OIC’s Permanent Observer Mission to the U.N.
www.oicun.org/2/23/
8 OIC Charter, available at www.oic-oci.org/oicv3/page/?p_id=53&p_ref=27&lan=en
(accessed July 7, 2016).
736
9 Ibid.
10 Turan Kayaoglu, A Rights Agenda for the Muslim World? The Organization of Islamic
Cooperation’s Evolving Human Rights Framework (Doha: Brookings Doha Center
Analysis Papers, 2013), 5. Further weakening the OIC’s authority is the relatively
modest amount of resources available to the organization: It employs no more than 200
staff members in its headquarters in Jeddah. Precise financial information is difficult to
find, but in 2008, the organization apparently had a budget of only USD 22 million. e
top contributors to the OIC’s budget are: Saudi Arabia (10 percent), Kuwait (9 percent),
United Arab Emirates (7 percent), Libya (6 percent), Iran (5.5 percent), Malaysia, and
Turkey (5 percent ea) (Juul Petersen 2012:46–47).
11 Abdullahi An-Naim and Asma Mohamed Abdel Halim, Rights-Based Approach to
Philanthropy for Social Justice in Islamic Societies (Cairo: John D. Gerhart Center for
Philanthropy and Civic Engagement, 2006), 7.
12 Robin Redhead and Ni Turnbull, “Towards a Study of Human Rights Practitioners,”
Human Rights Review, 12, no. 2 (2011), 177.
13 Toni Johnson, “Bagrounder: e Organization of the Islamic Conference,” Council on
Foreign Relations, 2010, www.cfr.org/religion/organization-islamic-conference/p22563
(accessed October 20, 2015).
14 E/CN.4/2003/NGO/225, available at
www.unhr./Huridocda/Huridoca.nsf/TestFrame/4bfebe8da116e9eec1256cf00031ce80
?Opendocument (accessed September 4, 2016).
15 oted from Edward Mortimer, “Islam and Human Rights,” Index on Censorship
(October 1983), 5.
16 Heini Skorini and Marie Juul Petersen, “From Defamation to Discrimination and Hate
Spee”, in Value Politics at the United Nations, edited by Anne Stensvold (Abingdon:
Routledge, forthcoming). e Cairo Declaration on Human Rights in Islam can be found
at: www.oic-oci.org/english/article/human.htm.
17 Sayyid Abul Ala Mawdudi, Human Rights in Islam (Leicester: e Islamic Foundation,
1976), 2.
18 Kayaoglu, A Rights Agenda, 9.
737
19 See for example Abdullahi An-Naim, Islam and the Secular State (Massauses:
Harvard University Press, 2008); Mashood Baderin, International Human Rights and
Islamic Law (Oxford: Oxford University Press, 2005); or Khaled Abou el-Fadl, The Great
Theft: Wrestling Islam from the Extremists (New York: Harper Collins 2005).
20 Anthony Chase, “Human Rights and the Challenge of Foundations,” Human Rights
Quarterly, 35, no. 2 (2013), 500.
21 Abdullahi An-Naim, Toward an Islamic Reformation: Civil Liberties, Human Rights and
International Law (Syracuse, NY: Syracuse University Press, 1990).
22 Kayaoglu, An Early Assessment, 10.
23 Kayaoglu, An Early Assessment, 10; Azin Tadjdini, “e Organisation of Islamic
Cooperation and Regional Challenges to International Law and Security,” Amsterdam
Law Forum, 4, no. 2 (2012).
24 Anthony Chase, The Organization of Islamic Cooperation: A Case Study of International
Organizations’ Impact on Human Rights (Copenhagen: Danish Institute for Human
Rights 2014), 14.
25 Chase, The Organization of Islamic Cooperation, 14.
26 Mashood Baderin, International Human Rights and Islamic Law (Oxford: Oxford
University Press 2003), 228.
27 Cismas, Rights and Obligations of Religious Actors under International Law.
Unpublished PhD thesis, Graduate Institute of Development and International Studies,
Geneva, 2012, p. 239.
28 Kayaoglu, A Rights Agenda, 12.
29 Elizabeth Prodromou, “OIC Opens Permanent Observer Mission to the EU: Assessment
and Implications for OIC Agenda on Human Rights,” Global Governance Watch, 2013, 1,
available at www.globalgovernancewat.org/library/doclib/20140815_OICMemo3.pdf
(accessed October 20, 2015).
30 Johnson, “Bagrounder”.
31 Ekmeleddin I˙hsanog˘lu, The Islamic World in the New Century: The Organization of the
Islamic Conference (London: Hurst and Co., 2010).
738
32 Prodmomou, “OIC Opens Permanent,” 2.
33 OIC Journal, Issue 13, 2010, 19, available at hp://issuu.com/oic-
journal/docs/oic_journal_issue_13_en_amended (accessed September 4, 2016).
34 e programme can be found at www.oic-oci.org/ex-summit/english/10-years-plan.htm
35 Unlike the commiee that draed the Cairo Declaration ba in 1989, the members of
the panel were all human rights experts with substantial experience from the U.N.
system. e five members of the panel were Ibrahim Salama, director of the Human
Rights Treaties Division, U.N. Office of the High Commissioner for Human Rights;
Adama Dieng from Senegal, Registrar of the International Criminal Tribunal for
Rwanda; Mahjoub El Haiba, Morocco, former member of the U.N. Human Rights
Commiee and currently Secretary General of the Moroccan Advisory Council on
Human Rights; a retired ambassador from Pakistan; and finally an Iranian solar, who
was not able to participate in the end, due to visa problems.
36 Initial dras of the statutes included an article saying that “the Commission shall seek to
ensure the promotion and protection of civil, political, economic, social, and cultural
rights in the member states.” is was anged to ‘support member states’ efforts to
consolidate.’ Another article, allowing the commission to “investigate any possible
human rights violations by OIC member states” was deleted entirely (Juul Petersen,
Islamic or Universal, 18).
37 Statute of the OIC Independent Permanent Human Rights Commission, available at
hps://oiumanrights.files.wordpress.com/2011/08/resolution-oic-iphrc-and-statute.pdf
(accessed September 4, 2016).
38 Kayaoglu, A Rights Agenda, 4.
39 Siraj Wahab, “OIC sets up its Own Rights Watdog,” Arab News, June 29, 2011,
hp://arabnews.com/world/article463969.ece (accessed October 20, 2015).
40 Opening Statement by H.E the Secretary General of the OIC at the ird Regular Session
of the OIC IPHRC, available at www.oic-oci.org/oicv3/topic/?
t_id=8566&ref=3444&lan=en (accessed July 7, 2016).
41 Chase, The Organization of Islamic Cooperation, 15.
739
42 Heiner Bielefeldt, “‘Western’ Versus ‘Islamic’ Human Rights Conceptions: a Critique of
Cultural Essentialism in the Discussions on Human Rights,” Political Theory, 28, no. 1
(2000), 109.
43 Carey L. Biron, “First Muslim Human Rights Commission to laun end December,”
Inter Press Service News Agency, December 13, 2012, www.ipsnews.net/2012/12/first-
muslim-humanrights-commission-to-laun-end-december/ (accessed October 20, 2015).
44 Kayaoglu, An Early Assessment, 13–14.
45 Interview with author, June 2013.
46 Kayaoglu, An Early Assessment; Chase, The Organization of Islamic Cooperation.
47 IPHRC statement, www.oic-iphrc.org/en/press_details/?id=84 (accessed July 7, 2016).
48 Chase, The Organization of Islamic Cooperation, 16.
49 Supra note 48. e commission furthermore “strongly condemned the growing trend of
confusing the definition with new and controversial notions of sexual orientation and
LGBT families that are neither universal nor recognized by international human rights
standards.”
50 Habib Shaikh, “OIC seeks rights debate based on Islamic values,” Arab News, February 4,
2014, www.arabnews.com/news/520321 (accessed October 20, 2015).
51 Fred Halliday, “Relativism and Universalism in Human Rights: the Case of the Islamic
Middle East,” Political Studies, 43, no. 1 (1995), 159.
52 Kayaoglu, A Rights Agenda, 19.
53 Mona Lena Krook and Jacqui True, “Rethinking the Life Cycles of International Norms:
e United Nations and the Global Promotion of Gender Equality,” European Journal of
International Relations, 18, no. 1 (2012), 104.
54 Chase, The Organization of Islamic Cooperation, 11.
740
Selected Bibliography
Baba, Noor Ahmed. Organization of Islamic Conference: Theory and
Practice of Pan-islamic Cooperation. Oxford: Oxford University
Press, 1994.
Beiza, Gregorio and Dionigi, Filippo. “How do religious norms
diffuse? Institutional translation and international ange in a
post-secular world society,” European Journal of International
Relations (2014), published online before print August 8, 2014.
Chase, Anthony Tirado. Human Rights, Revolution, and Reform in
the Muslim World. Boulder, CO: Lynne Rienner Publishers, 2012.
Cismas, Ioana. Religious Actors and International Law. Oxford:
Oxford University Press, 2014.
Juul Petersen, Marie. Islamic or Universal Human Rights? The OIC’s
Independent Permanent Human Rights Commission.
Copenhagen: Danish Institute for International Studies, 2012.
Kayaoglu, Turan. The Organization of Islamic Cooperation: Politics,
Problems and Potential. London: Routledge, 2015.
Langer, Lorenz. Religious Offence and Human Rights: The
Implications of Defamation of Religions. Cambridge: Cambridge
University Press, 2014.
Limon, Marc, Ghanea, Nazila and Power, Hilar. Combatting Global
Religious Intolerance. The Implementation of Human Rights
Council Resolution 16/18. Geneva: Universal Rights Group, 2014.
Mayer, Ann Elizabeth. Islam and Human Rights. Tradition and
Politics. Boulder, CO: Westview Press, 2012.
Samuel, Katja. The OIC, U.N. and Counter-Terrorism Law-Making.
Oxford: Hart Publishing, 2013.
741
22
Rhetoric Versus Reality
American foreign policy and religious
freedom in the Middle East
Barbara Ann Rieffer-Flanagan
742
Introduction
e Islamic State/Daesh has captured mu of the world’s aention
by claiming its brutal practices including beheadings, mass
executions, selling Yazidi women and girls into slavery, and its
destruction of pre-Islamic art in Northern Iraq were justified by
Islamic tenets. Unfortunately, IS/Daesh is only one source of
violence and the denial of freedom of religion and belief in the
Middle East. is human right has been trampled on by the Assad
regime in Syria, secular authoritarians including Al Sisi in Egypt, as
well as the Saudi monary in Riyadh.
e United States has oen claimed that as a country created by
individuals who sought religious freedom, it will promote this right
abroad: “Religious freedom is a human right knied into the fabric
of our founding and enshrined in our Constitution. As su, the U.S.
government continues to prioritize the advancement of this freedom
into its broader foreign policy objectives.”1 e rhetoric has not
mated the reality; religious freedom has generally taken a baseat
to other national interests. is apter will explore the state of
freedom of religion and belief in the Middle East. While this paper
only scrates the surface in this complicated region, it will argue
that American policymakers have rarely promoted freedom of
religion and belief when other economic and security issues were at
stake. Instead they have provided support for regimes that
continuously violate this fundamental human right.
743
e fundamental right of freedom of religion
and belief
e right to freedom of religion and belief involves an individual’s
right to believe and to put those beliefs into practice in society in
numerous, although not unlimited ways. Individuals have the ability
to believe in a supernatural being or beings, to ange their beliefs or
to believe in nothing at all. Furthermore, freedom of religion and
belief entails the right to practice and to act on one’s deeply held
beliefs either alone or in the company of others. ey can share their
beliefs in print or electronically (religious literature for example) or
verbally in assembly (rituals or services or through an educational
process). A society that upholds the right to freedom of religion and
belief allows individuals to display religious symbols, run
educational institutions to foster their beliefs, and allows for all
individuals, regardless of their beliefs, to hold various positions in
society and government. For this right to be protected in a society,
the government must ensure that laws are enacted and are
nondiscriminatory towards various belief communities and must
shield these groups from harassment and/or violence from other
non-state actors.
In articulating the aspects of freedom of religion and belief this
right should not be confused with religious tolerance. While
religious tolerance is necessary for aaining religious freedom, it is
insufficient in and of itself. A society may be tolerant of religious
minorities and of individuals who possess beliefs that are counter to
the majority. However, merely allowing individuals who are at odds
with the dominant religious beliefs to exist in society or to assemble
in a private dwelling does not rise to the level of freedom of religion
744
and belief whi requires a more open and welcoming public space
for those with divergent beliefs.
ere are various arguments that support the protection and
promotion of freedom of religion and belief (FoRB). is is a basic
human right established in the Universal Declaration of Human
Rights and in the International Covenant on Civil and Political
Rights (Article 18). Beyond offering support for the protection of
human rights generally, there are numerous pragmatic reasons why
FoRB is a freedom worth preserving. e ability to freely engage and
express one’s beliefs (religious or secular) is important for human
dignity and personal fulfillment. e inability to discuss one’s beliefs
or to offer moral reasons for desired policies or personal behaviors
denies the individual the ability to be fully human.
Citizens who are denied FoRB resent the restrictions on their
religious beliefs and the fact that they are being treated as second-
class citizens. e denial of freedom of religion and the
discrimination that some religious minorities feel is clearly explained
by Azdamar and Akbaba:
Religious discrimination as a source of social and international conflict essentially
prevents group members from performing simple yet salient acts of religious practice,
su as observing religious services and festivals, accessing places of worship, and
wearing religious symbols and clothing. Members of a religious minority perceive
discriminatory policies as fundamental threats to their moral framework and develop
antagonistic feelings toward the perpetrators of su policies. Acts of discrimination by
government are perceived by the victims as evidence of the government’s intolerance
and la of respect for other belief systems.2
Furthermore, studies have demonstrated that states that violate an
individual’s right to FoRB by limiting prayer services, religious
assembly, or the distribution of religious literature are more likely to
experience violence, terrorism and even civil wars.3 Grim and Fink’s
empirical analysis demonstrates in a variety of states from China to
Iraq, to Sudan, to Pakistan, that when the state infringes on an
individual or group’s ability to engage in religious activities the
745
result is oen violence and conflict. Grim and Fink also offer
evidence to establish that “the higher the degree to whi
governments and societies ensure religious freedom for all, the less
violent religious persecution and conflict along religious lines there
will be. Certainly, in the religiously arged world of the twenty-first
century, less religious conflict is in the interests of peace and security
for all nations.”4
ese studies demonstrate that when a state limits FoRB it oen
causes resentment in its citizens who feel they are being
discriminated against. e inability to freely carry out their religious
obligations oen leads some individuals to engage in violence
directed at government officials or members of another religious
group that is perceived to be receiving preferential treatment from
the state. Since there is empirical evidence that protecting FoRB
leads to less conflict, there are pragmatic reasons for supporting the
basic right of FoRB.
746
Freedom of religion and belief in the Middle
East
Various empirical studies have demonstrated the widespread denial
of religious freedom and belief around the world. e Pew Resear
Center for Religion and Public Life has analyzed both government
restrictions on religion (GRI) and social hostilities (SHI) based on
religion and the results from the Middle East and North Africa
demonstrate that this region is the worst in the world when looking
at the protection of various aspects of FoRB.5
747
Explaining the la of FoRB
Table 22.1 Pew Resear Center’s Analysis of Government and Social Restrictions in the
Middle East and North Africa
Country GRI SHI
Algeria 6.1 5.9
Bahrain 6.5 3.5
Egypt 8.2 7.7
Iraq 6.4 7.4
Iran 8.3 5.2
Israel 5.7 9.0
Jordan 6.2 2.9
Kuwait 5.4 3.6
Lebanon 4.0 6.1
Libya 4.7 6.9
Morocco 6.3 1.2
Oman 5.2 0.1
Palestinian Territories 4.5 8.8
Qatar 6.0 0.6
Saudi Arabia 7.8 3.6
Syria 7.4 7.8
Tunisia 4.9 5.8
UAE 4.6 1.5
Yemen 5.8 7.1
e countries with the best record on freedom of religion and belief
according to Pew are Morocco, Oman, Qatar, and UAE. All are
748
monaries with almost no social hostility. e countries with the
most significant problems are Egypt, Iran, Iraq, Israel, Saudi Arabia,
and Syria. In Egypt and Syria, Pew found high levels of government
restrictions on religion as well as high levels of social hostility. In
Israel and Iraq the problems are associated with high levels of social
hostility. In essence, groups within society are creating a hostile
climate that make it difficult for members of different belief
communities to freely practice their religion, and in some instances
are threatened with physical harm. One explanation for the high
levels of hostility towards religious minorities within a society stems
from the state of the education system within a country. When
students are taught that members of other faiths are infidels or losers
this does not create an atmosphere of respect or tolerance of other
religious groups within society. For example an 8th grade textbook
in Egypt includes the following: “And whoever desires other than
Islam as religion-never will it be accepted from him, and he, in the
Hereaer, will be among the losers.”6 In Iran and Saudi Arabia the
government and legal system prevent individuals from enjoying the
freedom to believe and practice their religion. One explanation for
the laws and policies within these countries that limit the rights of
religious minorities and atheists is the perceived threat to the power
of the regime. Shiites, in Saudi Arabia for example, are discriminated
against in society. e monary does not want a Shia uprising in its
eastern, oil ri provinces. Furthermore, Riyadh has struggled
against what it sees as a rising threat from Shia Iran. In the
remainder of this section I briefly explore a few of these cases.
749
e problem of non-state actors: Iraq and
Syria
e Islamic State/Daesh developed out of Sunni grievances in the
aermath of the overthrow of Saddam Hussein and the Baath Party.
Abu Musab al-Zarqawi created Al Qaeda in Mesopotamia (also
known as Al Qaeda in Iraq) and targeted Shiites in Iraq. e United
States killed Zarqawi in an airstrike in 2006. Abu Bakr al Baghdadi
took over the group and it evolved into the Islamic State/Daesh (also
knowns as ISIL or ISIS). Iraqi Prime Minister Nouri al-Malaki’s
policies of discrimination, targeting, and arresting Sunnis, as well as
killing peaceful protestors and other human rights violations against
the Sunnis created a recruiting bonanza for IS/Daesh.
e civil war in Syria likewise created a vacuum that IS/Daesh
aempted to fill. e conflict in Syria began in 2011 when peaceful
protestors sought a more accountable government. e Assad regime
responded by arresting and killing demonstrators. Over time this
conflict took on a sectarian frame. Sunnis, the majority of the
population in 2010 (74 percent) felt alienated by the Alawite-led
government of Assad. e continued repression and targeting of
civilian areas by the Assad regime with barrel bombs and emical
weapons, became a magnet for Sunni groups su as Khorasan, Al-
Nusra and IS/Daesh. ese groups, most prominently IS/Daesh,
commied large-scale atrocities, including torture and mass murder.
Aer gaining experience fighting in Syria against Assad’s forces,
IS/Daesh took over territory in Syria and Iraq, including Mosul in
June 2014.
IS/Daesh commied numerous human rights violations in the
towns and cities it has taken over in Syria and Iraq. It oen gives
religious minorities the oice to pay a tax (jizya), convert or die. It
750
has specifically targeted Christians, Shiites and Yazidis.7 IS/Daesh
tolerates no dissent and has slaughtered Sunnis as well as non-Sunni
Muslims. As noted by USCIRF:
While ISIL targets all Iraqis who oppose it, religious minority communities have
suffered especially egregious, devastating, and large-scale abuses, including forced
expulsion from their historic homelands, forced conversion, rape and enslavement of
women and ildren, torture, beheadings, and massacres.8
us mu of the violence in Iraq is the result of a non-state actor
whi the Iraqi government cannot control and has had trouble
confronting and defeating. In Syria the denial of FoRB stems largely
from violent extremist groups, but also from the Assad government.
751
e problem of theocratic government
restrictions: Iran and Saudi Arabia
e Islamic Republic of Iran consistently violates FoRB through its
laws, policies, and judicial decisions. Ayatollah Khomeini and his
supporters anged the government from a monary to a theocracy
via a referendum in 1979.9 e political system that was established
follows Shia Islam and allows the clerical aspects (Supreme Leader,
Guardian Council, and courts) to dominate the system. is has
resulted in a system where religious minorities are denied FoRB.
Although the constitution sets out legal protections for people of
the book (Jews and Christians) and for Zoroastrians, in reality all
face discrimination, threats, detention and in some cases assaults due
to their religious beliefs. Anti-Semitism, while not as prevalent
under President Rouhani as it was under former President
Ahmadinejad, still exists. Christians have been arrested and jailed on
arges of ‘threats to national security.’ Christian converts are
particularly vulnerable to harassment by the authorities.
Muslims also face harassment, physical assaults and jail sentences.
Sunnis and Sufis have also had trouble building mosques and have
had prayer centers destroyed.10 Shiites who allenge government
policies or who disagree with theological interpretations have been
arrested, and in some instances tortured while in prison.
e religious minority whi is most at risk are the Baha`is. e
Baha`is are considered heretics by the government and do not have
many legal rights in society. Baha`is have experienced difficulty in
maintaining educational institutions to tea their beliefs to other
members and have been prevented from aending university.
Furthermore, over 100 members of the Baha`i faith are imprisoned
752
because of their religious beliefs.11 Others have been murdered in
society.12
Home to two of the most important religious sites in the Islamic
world, Saudi Arabia limits FoRB especially for non-Sunnis. Laws and
state practices prohibit non-Sunnis from freely practicing or
expressing their beliefs in public. Shiites face discrimination in
education and in jobs. ey oen encounter obstacles in
constructing mosques. Over a thousand Shiites have been arrested
for protesting the discrimination and denial of rights that they face
in the country.13 Saudi courts do not treat all citizens equally as the
testimony of non-Muslims and women count less than a Sunni male.
Non-Muslims may only practice their faith in private as ures
and synagogues and temples are prohibited. While the government
allows non-Muslims to practice their faith privately, many face
harassment from the Commiee for the Promotion of Virtue and
Prevention of Vice (CPCPV). ere are numerous instances where
people praying in a private home have been arrested.14 Atheists and
those who have argued against the religious views of the religious
establishment have also faced harassment and in some cases jail
sentences. Raef Badawi was arged with apostasy and insulting
Islamic figures. He received a sentence that included 10 years in
prison, a fine and 1000 lashes. He was lashed 50 times on January 9,
2015.
While the Saudi government has aempted to combat extremism
by monitoring clerics and sermons and speees delivered at
mosques and other forums, it promotes intolerance in its textbooks
and education curriculum. Saudi textbooks, especially those for
grades 10–12 include anti-Semitic materials and describe Shiites and
Christians as heretics.15 Derogatory and inflammatory statements
against non-Muslims, as well as Sufis and Shiites, continue to be
included in textbooks despite the Ministry of Education’s claims to
reform the textbooks and remove intolerant language.16
753
e problem of secular authoritarian regimes:
Egypt
Unfortunately the Arab Awakening and the aempted transition to a
democracy in Egypt has not led to an improvement in the protection
of the right to FoRB. Some have gone so far as to suggest that the
situation for religious minorities is worse today than it was before
the revolution.17 In the immediate aermath of the revolution, Egypt
was led by the Supreme Council of the Armed Forces. During this
time there were numerous violations of the right to freedom of
religion and belief “including the use of force against religious
groups; failure to prevent religious discrimination; favoritism of
Islam over other religions; prohibitions on Muslims converting from
Islam to other religions; stigmatization of some religious groups as
dangerous sects or cults; and restrictions on religious literature or
broadcasting.”18
Furthermore religious minorities, especially Shiites and Coptic
Christians, were oen the targets of violence and harassment. ere
have been numerous aas on Coptic Chures as well as
businesses and homes owned by Copts. In some cases government
forces failed to intervene and protect Christians from violence
against persons and property. roughout 2011 aas against
Coptic Christians resulted in approximately 100 deaths.19 Aer many
of these acts of violence the perpetrators were not prosecuted or held
accountable. is environment of impunity does nothing to deter
another aa nor to provide justice for victims.
Elections in 2011 and 2012 resulted in a government largely
controlled by the Muslim Brotherhood and its Justice and
Development Party and additional problems for FoRB. e
constitution draed primarily by the Justice and Development Party
754
did not protect all faiths (only the divine religions—Jewish, Christian
and (Sunni) Islamic faiths). e constitution also prohibited the
defamation of religion (Article 98) and numerous individuals
(mainly journalists and Coptic Christians) were found guilty of
defaming Islam.20 Violence directed at Shiites was also tolerated by
Egyptian authorities. In June 2013 a mob aaed the house of
Arafat Ali Omer, a Shiite in the village of Zawyat Abu Musalam
killing four Shiites.21
e July 2013 coup overthrew President Morsi and his
government. As a consequence a new constitution was draed and
ratified in 2014. In the end the constitution made some anges
whi if consistently implemented would be an improvement over
the 2012 constitution. Articles 64 and 65 establish freedom of belief
and practice. Article 64 states that freedom of belief is absolute and
Article 65 protects freedom of thought. However the freedom to
practice one’s religion is again limited to Islam, Christianity and
Judaism. us FoRB is not guaranteed for all Egyptians. e
constitution also requires legislation to be developed pertaining to
building and renovation of houses of worship (Article 235). However
there continues to be troubling judicial proceedings that raise
questions about the new government’s commitment to FoRB as
individuals are still being prosecuted for contempt of religion.22
Al Sisi’s rhetorical comments and symbolic actions (a visit to a
Coptic Cathedral on Christmas Eve) should not distract us from his
statist approa and instrumentalization of “religion for political
purposes.”23 Nor should we mistake his words about the need for a
revolution in Islam as a genuine commitment to religious freedom.
While his statements about the need for a ‘truly enlightened’ reading
of Islamic texts and need to confront the radical, intolerant ideas
offered by IS/Daesh24 may be welcoming by some in the West, it
does not negate his government’s efforts to stifle freedom of spee
and dissent. Sisi has not embarked on a program to promote
religious freedom or freedom of belief. His government has targeted
755
atheists. Furthermore, Coptic Christians are still struggling to get
building permits and violence against religious minorities remains
largely unaddressed.25
756
U.S. foreign policy and religious freedom
In 1998 the International Religious Freedom Act became law and
required the State Department to pay greater aention to religious
freedom abroad. To put more emphasis on freedom of religion, this
law created the Office of International Religious Freedom and an
Ambassador at Large for Religious Freedom in the State Department.
It also created the U.S. Commission on International Religious
Freedom (USCIRF) to act as an outside monitor on the State
Department and foreign policy more generally. Both the State
Department and USCIRF produce yearly reports on the state of FoRB
in the world.
e State Department has tried to promote religious freedom
through a range of activities. In some instances they have used quiet
diplomacy, as well as public criticism, to encourage a state to release
an individual imprisoned due to their beliefs or religious conversion.
e State Department tries to promote religious freedom through
grants, roundtable discussions, dinners, training sessions, and
working groups with religious organizations, NGOs, and
policymakers.26
Aside from these programs, the most powerful weapons that
Washington has in fighting religious persecution is the designation
of Countries of Particular Concern (CPC) in IRFA. When a state is
designated CPC, IRFA authorizes the president to take a variety of
actions from negotiations, to economic assistance (loans or grants) to
economic sanctions to the use of force to address the issue. Over the
last 15 years many of the same countries in the Middle East have
been singled out for the denial of FoRB including Saudi Arabia,
Egypt, Iran and Iraq. Despite the continuing repression in these
757
states, Washington has rarely used the economic leverage that it has
under IRFA oosing instead to elevate national security interests.
758
U.S. foreign policy on freedom of religion and
belief in the Middle East
ere have been some diplomatic and programmatic efforts to
promote FoRB in the Middle East including the creation of a special
envoy for religious freedom for minorities in the Near East and
Central Asia in 2014. However, in many cases the protection of this
human right has taken a baseat to other national interests. We
have seen far more rhetoric in support of FoRB than protection for
individuals who have had their rights violated. Despite numerous
speees on the importance of religious freedom in American history
and the importance of the basic human right of FoRB, Washington
has not consistently acted to live up to its language. e United
States has not lived up to its rhetorical commitments for two
reasons: perceived national interests and a la of domestic pressure.
Washington has not seen consistent interest or pressure for
freedom of religion abroad. While most Americans support religious
liberty, few have consistently lobbied their elected representatives in
the executive or legislative branes. Additionally, there is no
dominant, influential lobbying group equivalent to the National Rifle
Association, U.S. Chamber of Commerce or AARP to take up this
issue. Given the fact that Americans have not created and funded a
significant organization to lobby on this issue, nor have the majority
of Americans called Congress or the White House to push for
religious freedom abroad, it has been easy for Washington to avoid
baing up the rhetoric on this human right with consistent actions
or policies. ere has been very lile domestic pressure to hold
political leaders’ feet to the fire.
e second reason why the rhetoric has not mated the reality is
because of perceived national interests. More oen than not, real and
759
perceived economic and security interests have trumped the
promotion of FoRB. USCIRF has repeatedly recommended a CPC
designation for Egypt (since 2010), Iraq (sine 2008) and Syria (since
2013). However, the Obama Administration has not done so, despite
the various violations of FoRB in these states. In Syria, despite the
fact that Washington does not have friendly relations with Assad, it
still did not issue a CPC designation, nor did it provide substantive
assistance to the religious minorities in the country (there have been
limited strikes on IS/Daesh in Raqqa) largely due to its desire to
avoid an involvement in the conflict. Furthermore, Washington has
consistently supported various governments that violate FoRB.
In a number of instances the Obama administration has continued
to provide weapons and material support to governments that
violate FoRB. In Egypt and Saudi Arabia Washington has not used
its military leverage to push either of these countries to improve
their protection of FoRB.27 e continuing military support to these
countries demonstrates Washington is not going to let violations of
FoRB interfere with other perceived national security interests (in
Yemen, in the fight against IS/Daesh, etc.).
Saudi Arabia is one of the worst violators of FoRB and
Washington recognizes the climate that exists in Saudi Arabia:
e public practice of any religion other than Islam is prohibited, and there is no
separation between state and religion. Shia and other Muslims who do not adhere to the
government’s interpretation of Islam faced political, economic, legal, social and
religious discrimination, including limited employment and educational opportunities,
underrepresentation in official institutions, restrictions on religious practice, and
restrictions on places of worship and community centers. e government detained
individuals on arges of insulting Islam, encouraging or facilitating conversion from
Islam, ‘witcra and sorcery,’ for engaging in private non-Muslim religious services.28
Despite Washington’s criticism in reports and in public statements, it
has largely cooperated with the monary on a variety of economic
and security issues including the conflict in Yemen.29 For example,
Saudi Arabia has been designated as a country of particular concern
760
since 2004, but has received an indefinite waiver since 2006.30 While
policymakers point to numerous activities undertaken to promote
FoRB there is lile clear evidence of the positive impact of these
policies in the short term. Policymakers oen talk about the revision
of Saudi textbooks as proof of their diplomatic efforts.31 However,
the evidence of significant ange in the ability of minorities to
express and practice their beliefs is laing.
Although the U.S. government has criticized religious violence,32
Washington does not always respond to religiously motivated
violence or violence directed at religious minorities by states or non-
state actors. It has cooperated with regimes that have tolerated
violence against minorities. Violence has continued against religious
minorities under President Al-Sisi in Egypt. In towns and villages
across Egypt including Nazla, Zerby, and Beni Ahmed ures,
sools and homes were set on fire. ese aas were motivated in
part by the interim government’s decision to have security personnel
forcibly remove protestors from camps in Cairo on August 14, 2013.
Over 200 ures, Coptic homes, and sools were aaed and
burned in revenge aas in August.33 Some in the Muslim
Brotherhood blame Coptic Christians for Morsi’s removal because
Coptic Patriar Tawadros II was part of the group of Egyptian
leaders who supported General Al-Sisi.34
ese aas were condemned by the State Department, however
there were no new policy initiatives. Despite the fact that the
USCIRF has called for Egypt to be designated as CPC for the last five
years, President Obama has largely adopted a policy of working with
President Al-Sisi. e Obama Administration briefly suspended
military assistance to Egypt in 2013 aer the military coup, but then
resumed delivery in Mar of 2015. Egypt receives roughly 1.5
billion USD annually in military and economic assistance from the
United States. e suspension of assistance was linked to the coup
and not to the violence against Copts or Shiites. Furthermore, the
Obama Administration has gone along with Cairo’s demand that
761
U.S. assistance to NGOs promoting human rights be limited to
government approved NGOs. us by continuing to deal with and
offer military and economic support to President Al-Sisi, the Obama
Administration is publicly sending the message that violence against
religious minorities and the violation of FoRB is not a priority. e
Obama Administration even offered some praise to the Al Sisi
government concerning its protection of FoRB. In an unclassified
memorandum sent to Congress, Secretary of State John Kerry
discussed the situation of religious minorities in Egypt:
e government has taken steps to protect and advance the rights of religious
minorities, although these protections are limited to the Abrahamic faiths-Judaism,
Christianity, and Islam. e new constitution requires parliament to pass a law
facilitating the construction and renovation of Christian ures; President al-Sisi won
praise from the Coptic community for being the first Egyptian president to aend
Coptic mass and for approving the building of a ur in the village of thirteen Coptic
victims of the ISIL-affiliated beheadings in Libya. ere have been some convictions for
anti-Christian violence, whi is almost without precedent. However, the government
continues to prosecute individuals for “denigrating religions,” and accountability for
former sectarian crimes remains problematic.35
Although Al-Sisi may sound beer than IS/Daesh, his government
has targeted atheists and there are still numerous hurdles to building
and renovating houses of worship for Coptic Christians.
Occasionally national security interests have overlapped or
coincided with the promotion of FoRB as was the case with the
IS/Daesh aa on the Yazidis in Northern Iraq. In August 2014
IS/Daesh aaed Sinjar forcing most of the inhabitants (largely
Yazidis) to flee to Mount Sinjar. In response to this humanitarian
disaster, the Obama administration launed air strikes, and dropped
food and supplies to those trapped on Mount Sinjar. President
Obama explained some of his motivations:
We’ve begun operations to help save Iraqi civilians stranded on the mountain. As ISIL
has mared across Iraq, it has waged a ruthless campaign against innocent Iraqis. And
these terrorists have been especially barbaric towards religious minorities, including
Christian and Yezidis, a small and ancient religious sect.36
762
It then put together a global coalition to address the threat posed by
IS/Daesh.
While the United States and its coalition partners have had some
limited success in parts of Iraq, to date IS/Daesh has not been
destroyed with more foreign recruits joining the movement and
replacing those killed in coalition airstrikes. While the actions of the
Obama administration and its willingness to use military force are a
rare instance of the use of hard power to stop religious persecution
and reopen a space for FoRB, it is worth keeping this situation in
context. IS/Daesh represents a destabilizing force in Iraq and in the
region. Its control of oil resources and large swaths of territory are a
threat to American national interests.37 So the response to IS/Daesh
was not simply due to its implications for religious freedom of Iraqis
or because of the Obama administration’s commitment to religious
freedom more broadly. If IS/Daesh were inspired by Marxism or was
killing in the name of Darwinism, then the Obama administration
would have been forced to respond due to the the geopolitical
significance of Iraq and the potential of destabilizing the larger
Middle East. us, while the Obama administration deserves credit
for its assistance to the Yazidis and others in Northern Iraq it was
not solely motivated by a desire to promote FoRB regardless of what
rhetoric has been employed by the administration.
763
Conclusion
Unfortunately year aer year many of the same countries in the
Middle East demonstrate an indifference, if not hostility towards
FoRB. And in numerous instances the United States policymakers
have allowed perceived economic or security interests to trump the
protection of this human right. Not only has the Obama
administration failed to demonstrate progress on the protection of
this human right, it has, despite its rhetoric and criticism, largely
cooperated with many regimes in the Middle East that violate FoRB.
ere have been few consequences from Washington for violating
FoRB.
Given the la of consistent domestic pressure to promote FoRB
abroad, it is not surprising that Washington’s rhetoric about the
importance of this basic human right has not been baed up with
substantive policies. While some policymakers may believe that it is
in America’s economic or security interest to support the monary
in Saudi Arabia or an authoritarian president in Egypt, numerous
studies have demonstrated that the denial of FoRB produces more
conflict and instability, not less. us short-term support for
governments that do not protect the right of religious liberty or
freedom of belief will likely result in more civil unrest and violence
in the long term. Further conflict or war in the Middle East is not in
the United State’s long-term national interests given the energy
resources in the region, the security of the state of Israel, or potential
for refugees in Europe. Furthermore when Washington fails to live
up to its rhetoric concerning the promotion of fundamental human
rights this weakens Washington’s moral authority and so power
making it more difficult to influence global partners.
764
In summary, Washington has rarely come to the defense of an
embaled religious minority in the region. And there has been lile
evidence of Washington punishing a government for violating the
religious liberty of its citizens. erefore it should not come as a
surprise that the United States has not made mu progress when it
comes to promoting this right in the Middle East.
765
Notes
1 State Department, International Religious Freedom Report, 2013.
2 Ozgur Azdamar and Yasemin Akbaba, “Religious discrimination and international crisis
and international effects of domestic inequality,” Foreign Policy Analysis, vol. 10, no. 4
(October 2014), 413–30.
3 B. Grim and R. Finke, The Price of Freedom Denied: Religious Persecution and Conflict in
the Twenty-First Century (New York: Cambridge University Press, 2011).
4 Ibid.
5 e Pew Resear Center measures Government Restrictions as follows, “e
Government Restrictions Index measures government laws, policies and actions that
restrict religious beliefs and practices. e GRI is comprised of 20 measures of
restrictions, including efforts by government to ban particular faiths, prohibit
conversion, limit preaing or give preferential treatment to one or more religious
groups.” e Social Hostilities Index explores ways in whi social groups limit religious
freedom: “e Social Hostilities Index measures acts of religious hostility by private
individuals, organizations or groups in society. is includes religion-related armed
conflict or terrorism, mob or sectarian violence, harassment over aire for religious
reasons or other religion-related intimidation or abuse. e SHI includes 13 measures of
social hostility.” Pew uses a 10 point index with higher scores indicating more
government restrictions and social hostilities. e Pew Form on Religion and Public
Life, “Latest Trends in Religious Restrictions and Hostilities,” 2015.
6 M. Muasher, The Second Arab Awakening (New Haven: Yale University Pres, 2014), p.
135.
7 e Yazidis are a religious minority that is found in Northern Iraq whi combines
aspects of Zoroastrianism, Islam and Christianity.
8 USCIRF, Annual Report, 2015.
9 B. Rieffer-Flanagan, Evolving Iran (Georgetown University Press, 2013).
766
10 USCIRF, Annual Report, 2015.
11 Special Rapporteur Ahmed Shaheed reported that “at least 300 minority religious
practitioners were reportedly imprisoned” with 126 Baha`is being held in detention as
of August 2014. U.N. General Assembly, “Situation of human rights in the Islamic
Republic of Iran,” August 27, 2014, A/69/356.
12 USCIRF, Annual Report, 2015.
13 State Department, International Religious Freedom Report, 2013, Washington D.C. In
October 2014 a Shia cleric, Sheikh Nimr Baqir al-Nimir was sentenced to death for his
criticism of the government. Amnesty International, “Saudi Arabia Sentences Political
Dissident to Death by Crucifixion,” October 16, 2014.
14 Human Rights Wat, “Saudi Arabia: Christians Arrested at Private Prayer,” January 30,
2012.
15 State Department, International Religious Freedom Report, 2013, Washington D.C.
16 State Department, International Religious Freedom Report, 2013, Washington D.C.
USCIRF noted some improvements in Saudi textbooks in its 2015 report, however it
continued to raise concerns about the content of the textbooks: “USCIRF found that
there were improvements concerning the removal of intolerant content e Saudi
government anowledged that some of the high sool level textbooks were still in the
process of being revised.” USCIRF also noted that some of the older textbooks were still
in circulation in countries throughout the world. USCIRF, Annual Report, 2015, p. 60.
17 M. Posner, former Assistant Secretary of State for Democracy, Human Rights and Labor,
Policy Statement on Human Rights in Egypt, April 10, 2014.
18 N. Sahgal and B. Grim. “Egypt’s restrictions on religion coincide with la of religious
tolerance” July 2, 2013 Pew Resear Center. www.pewresear.org/fact-
tank/2013/07/02/egypts-restrictions-on-religion-coincide-with-la-of-religious-
tolerance/ (accessed September 4, 2016).
19 USCIRF, Annual Report, 2012.
20 Cairo Institute of Human Rights. “Delivering Democracy” 5th annual report 2012.
21 Egyptian Initiative for Personal Rights. Press Release, June 26, 2013.
eipr.org/pressrelease/2013/06/26/1750 (accessed September 4, 2016). Human Rights
767
Wat. “Egypt: Lyning of Shia Follows Months of Hate Spee,” June 27, 2013.
22 M. Salem, “Freedom of Religion in Egypt no beer under Military Rule,” Al Monitor,
Mar 19, 2014.
23 M. Wahid Hanna, “Public Order and Egypt’s Statist Tradition,” The Review of Faith and
International Affairs vol. 13, no. 1 (2015), 23–30. M. Dunne and K. Bentivoglio, “Is Sisi
Islam’s Martin Luther?” Carnegie Endowment for International Peace, January 16, 2015.
24 S. El Deeb and L. Keath, “From Egypt’s Leader, an ambitious call for reform in Islam,”
Associated Press, January 8, 2015.
25 M. Dunne and K. Bentivoglio, “Is Sisi Islam’s Martin Luther?” Carnegie Endowment for
International Peace, January 16, 2015.
26 GAO Report 13–196, 2013.
27 For example, in FY2012 Saudi Arabia bought approximately 30 billion dollars worth of
F15s from the United States. N. Hodge and C.Lee, “U.S. to sell F-15s to Saudi Arabia,”
Wall Street Journal, December 30, 11.
28 State Department, International Religious Freedom Report, 2013.
29 At the State Department daily press briefing, Jeff Rathke stated, “We are deeply
concerned that the Saudi supreme court has upheld the 10-year prison sentence and
1,000 lashes for human rights activist and blogger Raif Badawi for exercising his rights
to freedom of expression and religion. As we had previously said ba in January, the
United States Government continues to call on Saudi authorities to cancel this brutal
punishment and to review Badawi’s case and sentence. We strongly oppose laws,
including apostasy laws, that restrict the exercise of freedom of expression, and we urge
all countries to uphold these.” Jeff Rathke, Daily Press Briefing, June 8, 2015, State
Department, Washington, DC.
30 B. Rieffer-Flanagan, “Promoting the Fundamental Human Right of Religious Liberty in
U.S. Foreign Policy,” Journal of Law and Social Sciences vol. 4, no. 1 (2014), 45–51.
31 Interview, State Department Official, Office of International Religious Freedom,
December 14, 2012.
32 “e United States condemns in the strongest terms the aa on a mosque today in
Damman, Saudi Arabia, whi reportedly killed four people and le others wounded.
768
is aa follows last week’s suicide bombing inside a mosque in Qatif, Saudi Arabia,
whi killed 21 Muslims peacefully engaging in Friday prayers. We deplore the brutality
of the terrorists who perpetrated this violence at a place of worship.” Jeff Rathke, May
29, 2015, Press Briefing, Washington DC.
33 M. Zuhdi Jasser. Testimony before the Commiee on Foreign Affairs, Subcommiee on
Africa, Global Health, Global Human Rights and International Organizations, House of
Representatives, December 10, 2013, Washington DC.
34 Cairo Institute for Human Rights Studies, “Islamist Groups Must Stop Inciting to
Sectarian Violence; Protection of Christians Responsibility of the State,” August 7, 2013.
35 J. Kerry, “Certification Pursuant to Section 7041(a)(6)(C) of the Department of State,
Foreign Operations, and Related Programs Appropriations Act, 2015 (Div.J, P.L. 113-
235), May 12, 2015.
36 B. Obama, Statement, August 7, 2014, Washington DC.
37 A senior official in the Obama administration said the airstrikes were based not simply
on humanitarian concerns, but rather “to protect our personnel and facilities specifically
in Erbil.” Baground Briefing by Senior Administration Officials on Iraq, August 8,
2014. www.whitehouse.gov/the-press-office/2014/08/08/baground-briefing-senior-
administration-officials-iraq (accessed September 4, 2016).
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Selected Bibliography
Cairo Institute of Human Rights Studies. “Delivering Democracy”
5th annual report 2012.
Cairo Institute of Human Rights Studies. “Islamist Groups Must Stop
Inciting to Sectarian Violence; Protection of Christians
Responsibility of the State,” August 7, 2013.
Dunne, M. and Bentivoglio, K. “Is Sisi Islam’s Martin Luther?”
Carnegie Endowment for International Peace, January 16, 2015.
El Deeb, S. and Keath, L., “From Egypt’s Leader, an Ambitious Call
for Reform in Islam,” Associated Press, January 8, 2015.
GAO. 2013. International Religious Freedom Act. Washington DC.
Grim, B. and Finke, R. The Price of Freedom Denied: Religious
Persecution and Conflict in the Twenty-First Century. New York:
Cambridge University Press, 2011.
Muasher, M. The Second Arab Awakening. New Haven: Yale
University Press, 2014.
Rieffer-Flanagan, B. “Promoting the Fundamental Human Right of
Religious Liberty in U.S. Foreign Policy.” Journal of Law and
Social Sciences vol. 4, no. 1 (2014), 45–51.
Saad, R. and El Feglery, M. Citizenship in Post-Awakening Egypt:
Power Shifts and Conflicting Perceptions. Cairo: Cairo Institute
for Human Rights Studies, January 2014.
Salem, M. “Freedom of Religion in Egypt no beer under Military
Rule” in Al Monitor, Mar 19, 2014.
State Department, International Religious Freedom Report, 2011.
State Department, International Religious Freedom Report, 2013.
e Pew Form on Religion and Public Life, “Latest Trends in
Religious Restrictions and Hostilities,” 2015.
770
U.N. General Assembly, “Situation of Human Rights in the Islamic
Republic of Iran,” August 27, 2014, A/69/356.
Wahid Hanna, M. “Public Order and Egypt’s Statist Tradition,” The
Review of Faith and International Affairs vol. 13, no. 1 (2015), 23
–30.
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Section VII
Transitions and accountability in the
Middle East and North Africa
772
23
Core Transitional Justice Debates in
the Middle East and Beyond
Eric Wiebelhaus-Brahm1
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Introduction
Transitional justice deals with age-old issues of justice,
accountability, forgiveness, healing, and reconciliation. Specifically,
it refers to a variety of measures that societies have employed to
address histories of violence and repression. Ostensibly, these
measures are designed to aieve some form of justice for past
human rights violations. e transitional label indicates this has
emerged in contexts of aempted shis from authoritarianism to
democracy and/or war to peace.
Political debates about transitional justice have followed the
spread of democratization experiments from Southern Europe in the
mid-1970s to Latin America and Asia in the 1980s, and on to Eastern
Europe and Africa in the 1990s. Emerging in the 1990s, a global
network of human rights activists, the United Nations, and
sympathetic governments has promoted the idea of transitional
justice, a trend described as the ‘justice cascade.’2 Before the 2000s,
the Middle East and North Africa (MENA) was insulated from this
normative shi. Its authoritarian regimes were quite secure at home
with the baing of global powers. In the twenty-first century,
however, the 2003 U.S. invasion of Iraq and the aermath of the 2011
Arab Uprisings have anged this dramatically. A majority of
countries in the region have now been forced to respond to global
transitional justice norms.
In this apter, I provide an overview of the major controversies
that have dominated transitional justice debates, including in the
wake of the so-called Arab Spring. I begin by exploring the varied
conceptions of justice that underlie these debates. Next, I examine
four alleged trade-offs in transitional justice practice. First, I examine
potential conflicts between retributive and restorative justice.
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Second, I explore concerns that retributive justice leads to the
recurrence of violent conflict. ird, I address the concern that there
is a clash of normative values and material priorities between the
global transitional justice ‘industry’ and ‘traditional’ conceptions of
justice and reconciliation present in local communities. Fourth, I
review the related controversy surrounding transitional justice’s
predominant focus on civil and political rights (CPR) over economic
and social rights (ESR). Finally, I turn to the literature that examines
the effects of transitional justice processes. roughout, I utilize the
transitional justice experiences of MENA countries to illustrate my
points.
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Differing conceptions of justice
Although justice is sometimes wrien about as though the definition
is obvious, there are multiple conceptions of justice. e transitional
justice literature typically distinguishes retributive, restorative, and
reparative conceptions of justice. Retributive conceptions of justice
emphasize accountability and punishment of human rights abusers
as the best and most relevant way to address abuses. Proponents of
retributive justice see trials conducted in accordance with
international legal norms as the best way to satisfy victims, aieve
justice, and deter future abuses.3 Domestic judicial capacity, the rule
of law, and good governance also are touted as potentially flowing
from quality prosecutions.4 Furthermore, prosecuting human rights
violators is consistent with international legal obligations.5
Another common form of retributive justice is veing. In this
form of transitional justice, individuals in certain roles in society are
screened for their past complicity in human rights abuses. Veing
processes have varied in terms of the scope of their rea; typically,
they cover public sector institutions and elected offices. One appeal
of veing is that it cates more individuals in its net than
prosecutorial efforts usually do. e sanction is milder than in trials.
Normally, those identified as guilty by a veing process are publicly
named and shamed or, at worst, banned from certain public
positions for a period of years.
Restorative conceptions of justice, by contrast, are less focused on
the perpetrator. Rather, the emphasis is on reconciling conflicting
elements of society, producing a complete and independent account
of events, and allowing victims’ narratives to be heard with the
ultimate goal being social healing and reconciliation. Restorative
justice processes seek to rectify harms “through structured
776
communication processes among victims, offenders, community
representatives and government officials,” in a way that “promotes
peace and order for the community, vindication for the victim, and
recompense for the offender.”6
In societies emerging from periods of conflict or repression, the
truth commission is closely associated with restorative justice. In
practice, truth commissions typically serve four essential functions:
establishing a factual record of the past; creating an official record
and recommendations for reform; producing evidence that can be
used for reparations, veing, or trials; and possibly “contribut[ing] to
the process of healing and reconciliation.”7 Although a truth
commission alone is unlikely to result in reconciliation, the process
may help (re)build social norms of procedural justice.8 In doing so,
according to Bhargava, truth commissions rehabilitate victims
whose aempts at political participation and self-determination
were obstructed by past repression. More generally, truth
commissions might open up new political space for oppressed and
marginalized populations. Furthermore, truth commissions may
promote dialogue about past abuses and aid in the commemoration
and memorialization of the past.
Reparative justice focuses on providing economic or social repair
to affected populations. At the core of reparative justice is the
concept of ‘righting a wrong,’ rather than punishing wrongdoers.9
Reparations are civil remedies, in contrast to the criminal redress
provided by retributive justice. International law recognizes several
forms of reparations, including restitution, compensation, and
rehabilitation.10 Restitution aempts to return the victim to their
situation prior to the wrongdoing taking place, su as restoring a
job to someone who was dismissed for their political beliefs. Other
reparations programs provide one-time or regular payments as
compensation for harm suffered. Rehabilitation entails the provision
of medical and psyiatric services, education or housing assistance,
or other kinds of benefits to alleviate harms. Countries are
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increasingly turning to collective reparations, in whi benefits are
provided to communities rather than individuals. Examples of
collective reparations include medical clinics, new sools, and
infrastructure. ey have become more common because they are
generally less costly and because they do not require individuals to
provide evidence of suffering, whi could create resentment
between recipients and nonrecipients.
All three forms of transitional justice sound appealing, whi has
led some to promote a ‘holistic’ approa to transitional justice.
Boraine argues that holistic transitional justice rests upon five
pillars: accountability, truth recovery, reconciliation, institutional
reform, and reparations.11 While he anowledges that a holistic
approa must be sensitive to local political conditions and local
conceptions of justice, it can feel like a one-size-fits-all maximalist
solution that never fully occurs in practice. Other critics arge that
these views of justice are fundamentally conservative and Western.
In particular, these conceptions do lile to fundamentally ange the
society in whi transitional justice is conducted. Gready and
Robins, for example, propose a move from transitional to
transformative justice, defined as “transformative ange that
emphasizes local agency and resources, the prioritization of process
rather than preconceived outcomes and the allenging of unequal
and intersecting power relationships and structures of exclusion at
both the local and the global level.”12 ey conclude that holism in
and of itself is not transformational unless its goals are
transformational. e transformational justice agenda, while beer
reflecting local demands and more normatively desirable, is difficult
to implement in practice.
In sum, Laplante categorizes conceptions of justice along a ‘justice
continuum,’ a spectrum arting justice from narrow to broad, with
reparative justice being on the narrow end, restorative justice
broader, civic justice broader, and socioeconomic justice broader
still.13 Some see this diversity as positive, as “a variety of transitional
778
justice measures serve a variety of valuable ends.”14 Nonetheless,
differing conceptions of justice and what it means to end conflict
may create allenges. “Justice,” Clark writes, “is a contested concept;
it has no uniform or universal meaning.”15 Even when there are no
disagreements over definitions, there may be over whi should be
prioritized. Moreover, despite a great deal of theorizing, there has
been a la of empirical data on victims’ perceptions and experiences
of justice, especially in transition,16 making these debates at least
somewhat problematic. Below, I turn to examine the major practical
and theoretical controversies that arise from a (perceived) clash of
these competing values.
779
Controversies in the theory and practice of
transitional justice
As transitional justice theory and practice has aracted greater
normative and empirical scrutiny, several unresolved controversies
have emerged. In the 1990s, one of the earliest debates was over the
compatibility of retributive and restorative justice. In this truth
versus justice debate, whereas some argue uncovering information
about past violations requires at least partially foregoing punishment
of wrongdoers, others minimize the necessity of su a trade-off.
Second, the peace versus justice debate deals with whether the
pursuit of retributive justice risks undermining peace processes and
improvements in human rights practices. Mu appears to depend
on whether transitional justice is politically manipulated. ird, a
global–local tension exists in whi international transitional justice
norms clash with traditional conceptions of justice in communities
affected by violence and repression. Fourth, there are debates about
whether transitional justice can or should address violations of
economic and social rights (ESR). Whereas some believe it is
important to address ESR because su violations are a major
concern of marginalized populations, others argue that existing
forms of transitional justice are ill-equipped to deal with ESR
violations. In this section, I will provide an overview of the logic and
evidence for these different positions, with particular emphasis on
the MENA region’s transitional justice experience.
Truth versus (retributive) justice
780
In the 1980s and 1990s, many countries aempted to transition to
democracy. Observers noted that governments’ transitional justice
oices tended to be trials, truth commissions, or nothing.17 e
prevailing wisdom was that the oice was driven largely by the
nature of the transition. Trials appeared more likely when one side
was resoundingly defeated and civil society pressure for
accountability existed. In the absence of strong civil society, new
governments were more likely to let bygones be bygones, especially
if they were themselves significant perpetrators of human rights
abuses. By contrast, there was a perception that truth commissions
were the product of political compromise,18 to be preferred only as
the next-best option when trials were impossible. As su,
transitional governments seemed to have to oose ‘truth versus
justice.’
is debate oen focuses on whether issuing amnesties to
perpetrators in exange for revealing information to a truth
commission undermines legal accountability. is was the formula
of the widely examined South African Truth and Reconciliation
Commission (TRC). e TRC was empowered to grant amnesty to
perpetrators who came forward to give a full account of their crimes
and to demonstrate they had a political motive. No other truth
commission since the TRC has had the power to grant amnesty.
ere is, in fact, considerable controversy surrounding the use of
amnesties. Some believe amnesties promote cultures of impunity,19
while others suggest they are necessary in some circumstances.20
In the Middle East, amnesties have sometimes been used to entice
insurgents to abandon the fight. However, they have not been used
as an inducement to produce information about past abuse as part of
a transitional justice process. Algeria comes closest to the South
African model. Between 1999 and 2005, the Algerian government
enacted two amnesties, supported by public referendum, that were
designed to quell the Islamic Salvation Front insurgency. In
implementing the 1999 Civil Harmony Law, the government
781
established provincial-level probation commiees that, reminiscent
of the TRC’s truth-for-amnesty provision, were to judge whether
individuals should be granted amnesty. In practice, these regional
bodies operated opaquely and do not appear to have actually
investigated any cases.21 Under pressure from civil society, the
government appointed a 43-member National Consultative
Commission on the Promotion and Protection of Human Rights in
September 2003 “to find the persons declared as ‘disappeared’ and to
proceed to identify any bodies that are found.”22 It is unclear how
the commission conducted its work; it had lile power to compel
cooperation.23 e government has never released the commission’s
Mar 2005 report. However, press reports indicate it aributed over
6,000 disappearances to government forces, yet concluded that
disappearances were the result of rouge individuals rather than an
official government policy.24 In a further measure to curtail
discussion of the past, the government’s 2005 Charter for Peace and
National Reconciliation made it a criminal offence to discuss
disappearances in a way that would “undermine the good reputation
of [state] agents who honourably served the country or to tarnish
the image of Algeria internationally.”25
By the early 2000s, some began to question whether the truth
versus justice trade-off existed. In East Timor and Sierra Leone, truth
commissions operated alongside internationalized criminal tribunals.
In Latin America, amnesties that had insulated militaries aer
democratic transitions began to crumble. International legal norms
increasingly recognized a complementarity between international
justice and truth commissions.26 In reality, the truth versus justice
debate oen failed to account for qualitative differences in trials,
truth commissions, and political transitions. As transitional justice
become more frequently post-conflict rather than post-authoritarian,
this point became clearer. Based on resear in West Africa, for
example, Sirleaf found that the more victims and perpetrators there
are in a post-authoritarian or post-conflict society, the less consensus
782
there will be as to the (in)appropriateness of violence.27 In post-
conflict environments, there will likely be weak institutions
incapable of fully realizing truth commissions or fairly prosecuting
perpetrators. Moreover, the large numbers of victims and
perpetrators create a significant burden for transitional justice,
unlike in authoritarian contexts where there are more likely to be
fewer victims and perpetrators and stronger institutions.
In the Middle East, there does seem to be a trade-off between
truth and (retributive) justice. As in other parts of the world,
transitional justice oices have been driven by the nature of the
political transition and balance of power among competing social
forces during that transition. In Iraq, the victorious United States and
its Shia allies engaged in retribution against Saddam Hussein and the
Iraqi Ba`ath Party through trials and de-Ba`athification.28 Tunisia’s
transitional government orestrated the trial of former President
Ben Ali and other top officials, some in absentia. Egypt’s Supreme
Council of the Armed Forces-led government prosecuted former
President Mubarak. Following his overthrow of President Morsi’s
government, President Sisi’s government has prosecuted his
predecessor and hundreds of his supporters. e international
community, through the International Criminal Court, pursued the
prosecution of Muammar Gaddafi and other top Libyan officials.
Libya’s post-revolutionary government has tried former officials
domestically, and passed a draconian Political Isolation Law that was
designed to purge Gaddafi-era officials.
By comparison, truth commissions have been rare in the region.
e Bahrain Independent Commission of Inquiry (BICI) was the
monary’s aempt to placate international pressure to address
abuses commied in the 2011 cradown on pro-democracy
protestors. e most promising example is Tunisia’s Truth and
Dignity Commission. Launed in December 2014, embarked on a
five year examination of human rights violations covering the
783
country’s entire history as an independent country. e commission
was the result of Tunisia’s more conciliatory, negotiated transition.
Peace versus justice
Perhaps most important among these controversies is whether a
maximal pursuit of transitional justice risks additional violence,
abuse, and repression. Mu of this debate rests upon claims about
whether retributive justice, but also sometimes truth commissions,
induce perpetrators to play spoilers by using extraconstitutional
means to defend themselves from sanction. Many observers cou
the peace versus justice debate as between politically-minded
‘pragmatists,’ who believe bargaining is oen necessary to preserve
stability, and legal-theoretical ‘legalists,’ who view establishing the
rule of law as critical for a society’s stability. Above all else,
pragmatists are concerned with the political consequences of
transitional justice. While certainly conscious of moral and legal
concerns, pragmatists argue that “prudent, flexible political
judgment yields beer outcomes than rigid, apolitical legalism.”29 To
pragmatist thinkers, justice does not exist in a vacuum, but is
constructed by and derives its power from politics. ey argue that
trials may lead perpetrators to further violence. In su sensitive
situations, amnesties may be necessary to bring conflict to an end,
prevent further conflict, and, ultimately, allow society to reconcile
and move forward.30 By contrast, pragmatists fear that indictments
in fragile transitional contexts may interfere with forging peace
deals, risk creating martyrs, and alienate segments of the population.
Legalists, on the other hand, value the promotion of universal
standards of justice. ey argue that trials, conducted in accordance
with international law, are the most appropriate and effective way to
deal with human rights abuses, to deter would-be offenders from
future violations, and to build the rule of law.31 In this perspective, to
784
issue blanket amnesties or to neglect prosecuting offenders weakens
societal and international norms, and sends a message that human
rights abuses will be tolerated.
To date, the cross-national empirical literature reaes
contradictory conclusions as to whether the peace versus justice
trade-off exists.32 Again, the inconsistency of findings reflects a
failure to adequately account for qualitative differences across
cases.33 e Middle East’s transitional justice experience illustrates
this point nicely. In Iraq, given Saddam Hussein’s decades of abusive
rule, there was widespread support across ethnic and sectarian lines
for transitional justice aer the 2003 U.S. invasion.34 e U.S.
instigated a sweeping de-Ba`athification process in an effort to root
out party members from positions of authority throughout the
country. Given the size of the party, veing cost over 500,000 Iraqis
their jobs.35 e process initially offered no opportunity to appeal
and no evidence of actual wrongdoing was necessary to dismiss
someone. In the hands of diehard Shia nationalists, the process was
politically manipulated. Similarly, Shia politicians interfered in the
trials of Saddam Hussein to ensure a guilty verdict for crimes
commied against Shia.36 e alienation of Sunnis, who were
disproportionally affected by de-Ba`athification and who saw the
symbolism of the conduct of Hussein’s prosecution, led many to join
a growing anti-U.S. insurgency and, later, the Islamic State.37
More recently, the peace versus justice debate has been invoked in
relation to the international community’s response to civil war in
Libya and Syria. In early 2011, the United Nations Security Council
rushed to refer the situation in Libya to the ICC, whi by mid-year
had indicted Muammar Gaddafi and other top officials in his
government. Arguably, the indictments eliminated any incentive
Gaddafi had to rea a negotiated peace. Given the fact that it would
be politically difficult for the ICC to ever withdraw the indictment,
Gaddafi risked prosecution were he to negotiate a transition. Perhaps
he reasoned that it was beer to try his ances fighting to the bier
785
end. Pragmatists would likely argue that lives might have been saved
by giving Gaddafi a means of peacefully withdrawing from power.
e Libyan experience has likely shaped the international
community’s approa to Syria. Although many European countries
are supportive, the ICC has moved very slowly in targeting the
Assad regime. To be sure, the Syrian government enjoys greater
support from Russia, whi can veto Security Council action.
However, the ICC prosecutor’s office has the power to initiate
investigations on its own. Despite the availability of evidence of
mass atrocity over the past four years, the ICC has proceeded very
cautiously.38 e ICC’s work in Libya came for naught as the
government’s unwillingness to cooperate with its investigation
ultimately forced the Prosecutor to agree to ‘help’ Libya prosecute
indictees. As the trials revealed the weakness of the Libyan
government, the ICC vainly tried to pressure it to improve the
fairness of the process.39
Global versus local
Another major controversy in the field is the potential conflict
between ‘global’ norms of democracy, human rights, and transitional
justice, whi are perceived as Western in their definition and
implementation, and ‘local’ conceptions of justice traditional to the
community in whi transitional justice is being implemented.40 One
recent review found significant “disconnect between international
legal priorities, and frameworks, and local understandings of justice.” 41 Critics arge that, to be relevant, transitional justice must meet
the needs of the populations that are engaged in addressing past
violence, not the preferences of governments and human rights
activists from the Global North. Solars arguing for primacy of the
local oen emphasize the role of broadly participatory approaes as
a way to empower local agency and create true social ange.42
786
ose in favor of a local focus suggest that the aims and methods of
internationally-driven transitional justice will conflict with or
disconnected from local customs and understandings. External
diplomatic and normative pressure, to say nothing of financial
support, is oen important to transitional justice processes, but this
influence may prevent local concerns from dictating the terms of
transitional justice.43 If global conceptions of justice have lile
meaning and applicability to the ‘local’ population, then of what
value is transitional justice in promoting its intended goals?
Others caution us not to simply assume local is beer. ere is
controversy over the meaning of the local, and what policy informed
by the local can and should look like. Sharp, for example, criticizes
use of ‘the local’ as being loose and aspirational, and suggests the
term needs closer examination.44 Others warn against the
romanticization or fetishization of the local, given the fact that
locality in and of itself is no guarantee of a good process.45
Traditional processes may reinforce patriary, and silence young
people for example. Some go further to argue that the separateness
of the global and local is artificial and constructed.46
e push for local transitional justice is premised on the idea that
it will lead to beer outcomes because it will be more responsive,
meaningful, and geographically closer to affected populations.
Empirically, it remains an open question as to whether locally-
driven and locally-owned transitional justice processes are ‘beer’
than those driven top-down from the outside. e Middle East’s
transitional justice experience illustrates some of the nuances of this
debate. Tunisia’s post-transition government established a Ministry
of Transitional Justice to engage the public in a thoughtful, locally-
driven deliberation of how the country should address its past.
Ultimately, the government announced plans to establish the Truth
and Dignity Commission to investigate human rights abuses that
occurred since Tunisia’s independence; the investigation was
launed in mid-2014. For years, politicians also have debated a
787
veing law that would exclude officials from Ben Ali’s government.
Aer several parliamentary debates, however, politicians decided not
to proceed. Although the United Nations and the International
Center for Transitional Justice, among others, have provided
tenical assistance to Tunisia, decision-making was clearly in
Tunisian hands. Even within a relatively homogenous society,
however, Tunisians themselves disagree on what transitional justice
should look like.47 Even locally-driven transitional justice needs to
deal with the fact that local demands are diverse.
e region also provides examples of the pitfalls of
internationally-driven justice. Post-invasion transitional justice plans
for Iraq were drawn up by U.S. officials in concert with the Iraqi
exile community. e Future of Iraq Project’s “Working Group on
Transitional Justice” produced a multi-pronged strategy that
included prosecuting top officials, establishing a reparations program
for victims, and creating a truth commission.48 However, in the
midst of a worsening post-invasion security environment driven by
an undermanned occupation force, only the more punitive elements
of the plan were implemented.49 In Libya, the international
community’s desire to isolate Gaddafi led to the ICC referral.
However, with the new Libyan government anxious to demonstrate
its capacity to govern, it refused to cooperate with the ICC. With
influential states unwilling to put sufficient pressure on the
government to cooperate, the ICC was forced to concede and agreed
to ‘help’ the government try indictees. e relationship has been
acrimonious as the proceedings have not met international legal
standards.
Justice is, as shown by these examples, always political. As I will
elaborate on below, in many Middle Eastern countries, local
ownership of transitional justice has oen produced forms of victor’s
justice. Successive post-Mubarak governments have used the courts
to contain opposition. Aer garnering lile support in elections,
Islamists in Libya forced parliament at gunpoint to pass a Political
788
Isolation Law in 2013 in order to sideline successful politicians who
had once been part of Gaddafi’s government. Post-Saddam Iraq has
already been mentioned. In Bahrain, the government used BICI to
head off calls for accountability and greater political opening.
Rejecting international norms, thus, may be as mu about regime
survival as it is responding to local needs.
Transitional justice and economic and social rights
One element of the global versus local debate deals with the place of
economic and social rights (ESR) in the context of transitional
justice. Transitional justice processes have typically been oriented at
legal remedies for gross violations of physical integrity rights and
civil and political rights (CPR) violations, rights emphasized by the
Global North, as opposed to ESR.50 is narrow conception of
transitional justice may be at odds with local populations more
concerned with the daily struggles of poverty and deprivation than
with the prosecution of CPR violations.
In recent years, there has been growing interest in the ability of
transitional justice to promote ESR, and to promote economic
development more generally.51 Transitional justice typically occurs
in less developed countries, where poverty is widespread and is oen
both a cause and consequence of human rights violations. As the late
Salvadoran Arbishop Oscar Romero once put it, “[p]olitical
repression is oen both an instrument and the result of economic
disparity.”52 Critics arge that transitional justice typically treats
ESR violations as baground conditions, rather than as equally
important abuses that, among other things, may prevent individuals
from exercising their CPRs.53 ere also is a common assumption
that CPR violations are discrete and apply to individuals, whereas
ESR violations are inherently structural.54 Smid and Nolan offer
789
the example of pillaging by armed groups, whi is both discrete and
a violation of individuals’ ESR.55
ere is significant disagreement as to whether transitional justice
can and should address ESR. Some are optimistic of transitional
justice’s ability to address ESR and promote economic development.
e traditional focus on CPR may promote ESR in the long-run.
Addressing CPR violations may empower marginalized populations
to become active citizens and to utilize legal annels to promote
their interests.56 Transitional justice also may create social capital by
increasing trust in government and in fellow citizens.57 For
optimists, the failure of transitional justice to address ESR is not the
result of an inherent conflict, but a misunderstanding of the concept
and international legal obligations regarding ESR.58
Pessimists see several obstacles for transitional justice’s
meaningful engagement of ESR. Some maintain that transitional
justice is at its core a short-term legal process, whereas economic
issues are a maer for democratic politics. Expanding transitional
justice to address ESR risks undermining the legitimacy of the entire
venture.59 Other critics doubt transitional justice’s ability to address
ESR. Some see transitional justice as the product of the historical
“ascendency of the twin doctrines of democracy and neoliberal
capitalism” following the end of the Cold War, both of whi are
Western in origin and promote CPR over ESR.60 Moreover, external
pressure and support for transitional justice are important, and, as
we have seen, these external pressures generally come from the
Global North whi favors CPR over ESR due to investment and
trade interests.61
Some recent resear examines the justice demands of victims. A
growing body of evidence suggests that victims in diverse cultural
and historical contexts are concerned about ESR.62 Oen, victims
seek redress for the material consequences of human rights
violations, not abstract CPR or the punishment of their tormentors.
790
While there are many reasons why victims desire reparations, from
recognition of status to removal of stigma,63 recipients of reparations
payments oen want reparations more to meet their day-to-day
needs,64 making conventional reparations payments seem
conservative and less useful in providing a fix to longstanding
inequalities. Some go further than merely advocating individual
reparations, arguing that greater redistribution of wealth is needed
to break cycles of violence. Redistribution of this scale, Muvingi
argues, should include “land and mining rights, housing and
provision of services,” driven by necessity by the state.65 is
resonates with notions of transformative justice, whi highlight the
importance of social justice and addressing historical
marginalization.66
e importance of ESR as a motivation for Arab Spring protests is
apparent. Analysts have highlighted the critical role played by
unemployment, patronage and corruption, poor public services, and
high food prices in bringing populations to the streets across the
Arab world.67 e U.N.’s Special Rapporteur on the Promotion of
Truth, Justice, Reparation and Guarantees of Non-Recurrence
highlighted the centrality of ESR for the transformation of the
MENA region.68 Across most of the region, however, publics have
largely been disappointed since 2011. New Arab governments have
had a hard time reviving economies in the context of slow global
economic growth, persistent corruption, poor economic
management, and declining oil prices. Transitional justice has
proven disappointing for many as it “appears to offer meanisms
for a more conservative conception of transition, confined within the
realms of criminal law and reform.”69 e transformative justice that
many protestors have sought remains a distant goal.
791
emes in the practice of transitional justice
in the Middle East and North Africa
In the wake of the 2011 uprisings in MENA, many countries have
implemented transitional justice meanisms to address state
violence and repression against civilians. ere has been significant
variation in the manner in whi uprisings unfolded. Tunisia and
Egypt both saw mostly peaceful protests. By contrast, Libya was
subject to foreign intervention. In Yemen, young people and tribal
groups aligned in protest against the government. Peaceful protests
were met with force in Bahrain and Syria. e nature of protests,
and whether they were successful in toppling regimes, has played an
important role in shaping transitional justice in ea country. e
extent of the ancien regime’s brutality also maers. e more
widespread abuses are over time and space, the greater the demand
for, yet the greater the practical obstacles to, engaging in transitional
justice. In addition, outside influence has oen been important.
Governments have had to respond to global transitional justice
norms, but those with closer ties to the West, like Bahrain and
Egypt, have been more immune to external pressure to address the
past. Finally, transitional justice processes have focused primarily on
contemporary abuses that occurred in the context of post-2010
protest, rather than the decades of abuse under the region’s
authoritarian regimes.
While some observers have begun to examine transitional justice
in the wake of the Arab Spring,70 events on the ground oen shi
quily. In this section, I will focus on three important features of
the MENA transitional justice experience in the four years since the
start of the Arab Spring. First, across the region, there has been a
notable preference for retributive justice. Second, some countries
792
have engaged in transitional justice without undergoing a genuine
political transition. ird, transitional justice has oen been
politically manipulated.
793
Favoring retribution
One key aracteristic of post-Arab Spring transitional justice is the
apparent preference for retributive forms of justice, particularly
prosecutions. Fisher and Stewart argue that there are several
potential explanations for this preference for retribution.71 First, it
may be due to a growing international rejection of amnesties as a
legitimate policy in the context of political transition. In this way,
the prosecutorial focus could be an aempt to comply with an
emerging international norm against amnesty. A second reason may
be unique aspects of MENA political culture. In Europe and Latin
America, there was a broad consensus on the failure of communist
ideology and/or authoritarian rule, and on the desirability of society
moving towards the West and liberal democracy.72 In MENA, by
contrast, although authoritarianism was allenged, there is a la of
consensus on the precise failures of regimes and also on the
appropriate direction for society. As a result, there may be a la of
creative applications of transitional justice and problem-solving
regarding society’s problems. Whereas in South Africa, ubuntu
emerged as a cultural basis for transitional justice, Islamic legal
traditions in MENA are diverse and oen divisive. In the absence of
consensus and creativity, transitional justice advocates may fall ba
on prosecutions.
roughout the Middle East, the preference for retribution can be
seen in the indictments in domestic courts of former heads of state,
their families and associates, and other top officials of their regimes.
Tunisia’s experience has been relatively mild. In the year and a half
following Tunisia’s revolution, approximately two dozen former
officials, including former President Ben Ali, were tried and
convicted in the deaths of anti-government protestors in late 2010-
794
early 2011 and on corruption arges. Critics found fault with the
trials, whi were rushed in military courts, with some defendants
convicted in absencia.73 Despite calls in some quarters for expanding
prosecutions further ba in time and down the ain of command,74
su action appears unlikely in light of Nidaa Tounes’ late-2014
election victory. In Egypt, whi will be discussed further below, the
prosecution of Hosni Mubarak and his sons was followed, aer the
2013 coup, by mass trials of Morsi and Muslim Brotherhood
supporters.75 Libya’s trial experience has seen greater outside
involvement. In mid-2011, the ICC issued indictments against Libyan
leader Muammar Gaddafi, his sons, and top political allies. With
civil war still raging, there was lile hope of apprehending the
indictees. Aer Gaddafi’s defeat, the transitional government
rejected ICC jurisdiction in a desperate bid to demonstrate it had the
capacity to govern the country. Aer realizing it had lile leverage
over the Libyan government, in 2013 the ICC agreed to assist in the
conduct of domestic trials. In July 2015, a Libyan court sentenced
Saif al-Islam Gaddafi, former intelligence ief Senussi, and seven
others to death for the violent repression of demonstrators in 2011.76
International observers, including the ICC, criticized the
proceedings.77 e Libyan government never had custody of Saif
Gaddafi throughout the proceedings. Instead, his trial was conducted
by video link, because he is being held by a Zintani militia.78
Veing has also been relatively common. Where regimes have
been successfully overthrown, purges have been common in the
region. De-Ba`athification in Iraq was an early example. Post-
Gaddafi Libya’s Political Isolation Law briefly appeared to be just as
controversial before widening instability made it a moot point.
Tunisian politicians, by contrast, have been more cautious. e
transitional government established the High Commission, whi
excluded from the first National Constituent Assembly (NCA)
elections individuals who held ministerial office, senior positions
within the Constitutional Democratic Rally (Ben Ali’s party), or who
795
publicly called for Ben Ali to seek an additional term in office in
August 2010. Under Ennahda-led governments, the NCA
occasionally discussed political isolation,79 but no measure has ever
been approved. Of the countries where revolutions occurred, Tunisia
is an exception. Overall, the political manipulation of retributive
justice is a theme of Middle Eastern transitional justice, one to whi
I return below.
796
Transitional justice without a transition
One interesting feature of the Middle East has been the employment
of transitional justice meanisms outside of transitional situations.
e pursuit of justice is not confined to transitional contexts, but, for
mu of its history, the field of transitional justice has focused on the
pursuit of justice in transitional contexts where certain constraints
may be present and compromises (at least perceived to be)
necessary.80 Resear has shown that politicians use transitional
justice to placate international and/or domestic pressure.81 is
resear focuses primarily on the actions of relatively new, fragile
governments in the context of political transition, however. In
relatively secure Morocco and Bahrain, by contrast, monaries
created truth commissions in an aempt to build their domestic and
international legitimacy.
In Morocco, King Mohammed VI created the Moroccan Equity
and Reconciliation Commission (Instance Equité et Reconciliation -
IER) in April 2004 to investigate human rights abuses commied
during his father’s reign. While it avoided Morocco’s thorniest
human rights problem, Western Sahara,82 the widely respected
commissioners conducted a credible investigation of more than four
decades of Moroccan history.83 e IER identified approximately
1,000 deaths by government forces between 1956 and 1999. e
commission held seven public hearings around the country, whi
were broadcast on television and radio. Its Reparations Unit
recommended the government provide monetary compensation to
almost 10,000 individuals.
Observers have divergent opinions of the IER. While some
appreciate it for generating discussion about human rights that will
ultimately advance democracy, others see it as a costless way for the
797
new King to legitimize his rule.84 e King pledged to implement the
IER’s recommendations following the final report’s late 2005 release.
e government budgeted USD 50-70 million for reparations, whi
it began paying in 2007.85 e implementation record of other IER
recommendations, however, is spoy.86
Bahrain’s experience with the truth commission model shares
some similarities with Morocco. e Bahrain Independent
Commission of Inquiry (BICI) was created by King Hamad bin Isa Al
Khalifa in June 2011 to investigate abuses commied in suppressing
early 2011 pro-democracy protests. To boost the credibility of the
investigation, the King invited prominent international human rights
lawyers to serve on the commission. e commission worked
diligently to maintain an air of neutrality, but this led anti-
government protestors to question its legitimacy.87 In November of
the same year, BICI submied its report, whi documented deaths,
torture, and the firing of protesters and proposed a variety of
recommended reforms.
BICI’s impact is mu disputed. It clearly has not facilitated
greater dialogue between the regime and pro-democracy activists.
e final report did not pull any punes. However, the mandate of
the commission ensured that it did not address the deeper political
and socioeconomic causes of the unrest. BICI’s reform
recommendations also have been subject to dispute. e government
claims to have implemented them all.88 Human rights groups and
the U.S. State Department disagree.89 On occasion, BICI airman
Cherif Bassiouni has weighed in, initially giving the government the
benefit of the doubt in working toward implementation, but
becoming increasingly critical.90 In hindsight, BICI was a calculated
move to appease pressure to address the violence.
In both cases, monaries sought to exploit international
transitional justice norms to insulate themselves from pressure
regarding their human rights records. In a sense, the tactic worked
798
well. However, given the close relationship both Morocco and
Bahrain enjoy with the West, they were relatively immune to
international pressure as it is. eir decisions to create truth
commissions could be interpreted as an indication of the power of
transitional justice norms. In spite of their secure position, the
monaries took the risky move of publicly exposing official abuses.
e reports and their recommendations drew further aention to
human rights in the countries and subsequently provided
benmarks against whi state behavior could be criticized.
799
e political manipulation of transitional
justice
A further criticism leveled against post-Arab Spring applications of
transitional justice is their overtly political nature. As already
implied, Egypt and Libya, in particular, variously saw politically
motivated purges, arrests, and mass trials. To be sure, justice is
always political. Among other things, power invariably shapes
whether and how various transitional justice measures are employed
and who is defined as victim and perpetrator. What is interesting
about Middle East cases is how overt many governments have been
in their political manipulation of transitional justice.
In Libya, for instance, the harsh Political Isolation Law
disqualified members of the Gaddafi regime from mu future civic
participation. e law was wrien so broadly as to ensnare
thousands of people; “the disqualifying positions specified include
leading political, administrative, and security posts; ambassadors;
ancellors of universities; heads of student unions; researers at
propaganda institutes; and anyone who belonged to an international
organization that threatened Libya.”91 e law made no allowance
for anges of heart, a relatively common occurrence as individuals
went from ally to opponent over Gaddafi’s 42 years in power. Many
successful politicians in post-Gaddafi Libya had joined the
opposition aer some period in Gaddafi’s government. ose who
failed to gain power in Libya’s democratic elections, Islamists in
particular, saw the Political Isolation Law as their tiet to power.
e aim was not to protect the new Libyan state from Gaddafi-
supporting spoilers, as it appeared on the surface, but rather to
reshape post-transition politics by massively disqualifying any
800
potential opponents. As noted earlier, political isolation has not been
disastrous for Libya only because the country became a failed state.
In Egypt aer the coup deposing the Morsi regime, Abdel Faah
el-Sisi’s government instituted purges, mass arrests, and trials of
Muslim Brotherhood leaders and supporters. e new government
created a Ministry of Transitional Justice, but it appears to be
primarily a vehicle for patronage.92 While the government has not
used the language of transitional justice in its treatment of the
Muslim Brotherhood, it has used the legal system to instill fear and
to break the Muslim Brotherhood as a viable political organization.93
ese mass trials saw upwards of nearly 700 people sentenced to
death in one fell swoop.94 As of early 2015, the Muslim Brotherhood
estimated that around 41,000 demonstrators and activists were facing
trial, of whi around 29,000 are Brotherhood supporters; the
Egyptian government itself says arrests only number around
22,000.95 Morsi himself was convicted in several cases, and received
a death sentence, on questionable arges. 96 e trials have been
criticized by Human Rights Wat, among others, as deeply
flawed.97 Meanwhile, Mubarak and his sons saw most of their
convictions overturned, ultimately le with relatively lenient
sentences for corruption arges.98 Sisi’s government has been more
brutal than Mubarak’s. e contrast between Morsi and his allies
being given harsh sentences for the killings of less than a dozen
protesters and the impunity enjoyed by the government agents who
perpetrated an August 2013 massacre that killed nearly 700
protesters is stark. e message that these trials selectively targeting
regime opponents sends is that, under Sisi, any “dissent or a
divergence of opinion [will be] dealt with by way of arbitrary arrest
and unlawful detention, staged prosecution, and by extrajudicial
killing.”99
Retribution risks political stability if those targeted are too
powerful or numerous or if the process is blatantly unfair. By giving
801
(alleged) perpetrators no political future in the country, they will
likely become spoilers. Although this was averted in Libya by the
government’s inability to enforce the draconian purge, Egypt and
Iraq provide clear examples of the dangers of politically manipulated
transitional justice. e al-Malaki and Sisi governments both ose
to use the veneer of transitional justice to shore up their positions in
the short term, but at the cost of long-term peace.
802
Conclusion
A final preoccupation of transitional justice has been trying to
understand the effects of these processes on individuals and
societies. Mu of the early literature relied on impressionistic
conclusions and anecdotal evidence of singles cases.100 While more
careful methodological studies and broadly comparative analysis
have proliferated, methodological and theoretical differences have
resulted in inconsistent findings.101 at transitional justice norms
are important and have real impacts seems to be by this point
beyond dispute. Instead, current controversies in the field concern in
what ways transitional justice is important and what impacts it has;
the appropriateness of particular conceptions of justice in certain
times and contexts; how broadly transitional justice should aim to
affect or transform the society in whi it operates; whether or not
international legal obligations or the preferences of the affected
populations should rule the day; what trade-offs, if any, must be
made to pursue any given course of justice; and what use and abuse
of transitional justice meanisms and norms looks like in practice.
ere is still mu to be learned about transitional justice and, in the
absence of conclusive evidence, there continue to be several active
debates.
It is relatively uncontroversial to conclude that there is lile
likelihood that the use of transitional justice meanisms in mu of
the Middle East will prove beneficial in the long-run. Only in
Tunisia does real potential exist for transitional justice to positively
contribute to the development of a democratic polity that values
human rights. Tunisians seem to be enthusiastic about the process.
In its first five months, the Truth and Dignity Commission recorded
nearly 11,000 claims of abuse by state agents.102 Nonetheless, some
803
observers fret about the fate of transitional justice in Tunisia. e
late-2014 victory of Nidaa Tounes, a party led by former officials
from Ben Ali’s government,103 raises the prospect of the commission
more closely resembling Morocco and Bahrain. Sihem Bensedrine,
the former journalist and human rights activist who leads the Truth
and Dignity Commission, complains that funds have not been as
forthcoming under the new government.104 If Nidaa Tounes decides
to interfere with transitional justice, it seems more likely to curtail
rather than manipulate it as other governments in the region have
done. In order for Tunisia to remain an aberration from the regional
paern, Tunisia’s government will need to generate more inclusive
economic growth that addresses the marginalized south, addressing
the ESR demands of the population. Furthermore, it will need to
beer insulate itself from unstable neighbors without descending to
the manipulations of court proceedings to aieve its political goals.
804
Notes
1 I would like to thank Hayden Cuffman valuable resear assistance in the construction
of this apter.
2 Ellen Lutz and Kathryn Sikkink, “e Justice Cascade: the Evolution and Impact of
Foreign Human Rights Trials in Latin America,” Chicago Journal of International Law 2,
no. 1 (2001): 1–33; Kathryn Sikkink, The Justice Cascade: How Human Rights
Prosecutions Are Changing World Politics, 1st ed. (New York: W. W. Norton and Co.,
2011).
3 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and
Mass Violence, (Boston: Beacon Press, 1998); P. Akhavan, “Beyond Impunity: Can
International Criminal Justice Prevent Future Atrocities?,” American Journal of
International Law 95, no. 1 (2001): 7–31.
4 James Meernik, “Justice and Peace? How the International Criminal Tribunal affects
Societal Peace in Bosnia,” Journal of Peace Research 42, no. 3 (2005): 271–89; Jane E.
Stromseth et al., Can Might Make Rights? Building the Rule of Law after Military
Interventions, (New York: Cambridge University Press, 2006).
5 Diane F. Orentlier, “Seling Accounts: the Duty to Prosecute Human Rights Violations
of a Prior Regime,” Yale Law Journal 100, no. 8 (1991): 2537–2615.
6 Miael J. Gilbert and Tanya L. Seles, “e Next Step: Indigenous Development of
Neighborhood-Restorative Community Justice,” Criminal Justice Review 32, no. 5 (2007):
7.
7 P. Domingo, “Dealing with Legacies of Violence: Transitional Justice and Governance
Transitions,” Overseas Development Institute, www.odi.org/sites/odi.org.uk/files/odi-
assets/publications-opinion-files/7686.pdf (accessed July 1, 2015): 4. See also Priscilla B.
Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth
Commissions, 2nd ed. (New York: Routledge, 2011).
805
8 Rajeev Bhargava, “Restoring Decency to Barbaric Societies,” in Truth V. Justice: The
Morality of Truth Commissions, ed. Robert I. Rotberg (Princeton, NJ: Princeton
University Press, 2000).
9 Lisa Laplante, “e Plural Justice Aims of Reparations,” in Transitional Justice Theories,
eds, Susanne Buley-Zistel et al. (New York: Routledge, 2014): 70.
10 Conor McCarthy, “Reparations under the Rome Statute of the International Criminal
Court and Reparative Justice eory,” International Journal of Transitional Justice 3, no.
2 (2009): 250–71.
11 Alexander L. Boraine, “Transitional Justice: a Holistic Interpretation,” Journal of
International Affairs 60, no. 1 (2006), 17–27.
12 Paul Gready and Simon Robins, “From Transitional to Transformative Justice: a New
Agenda for Practic,” International Journal of Transitional Justice 8, no. 3 (2014): 340. See
also T. Bundsuh, “Enabling Transitional Justice, Restoring Capabilities: the Imperative
of Participation and Normative Integrity,” International Journal of Transitional Justice
9, no. 1 (2015): 10–32.
13 Lisa Laplante, “e Plural Justice aims of Reparations,” in Transitional Justice Theories,
eds, Susanne Buley-Zistel et al. (New York: Routledge, 2014): 68.
14 Nancy A. Combs, “From Prosecutorial to Reparatory: a Valuable Post-conflict Change of
Focus,” Michigan Journal of International Law 36, no. 2 (2015): 219–76.
15 Janine Natalya Clark, “e three Rs: Retributive Justice, Restorative Justice, and
Reconciliation,” Contemporary Justice Review 11, no. 4 (2008): 331.
16 Ismael Muvingi, “Siing on Powder Kegs: Socioeconomic Rights in Transitional
Societies,” International Journal of Transitional Justice 3, no. 2 (2009): 181; Mijke de
Waardt, “Are Peruvian Victims being Moed? Politicization of Victimhood and
Victims” Motivations for Reparations,’ Human Rights Quarterly 35, no. 4 (2013): 833.
17 Elin Skaar, “Truth Commissions, Trials – or Nothing? Policy Options in Democratic
Transitions,” Third World Quarterly 20 (1999): 1109–28.
18 Robert I. Rotberg, “Truth Commissions and the Provision of Truth, Justice, and
Reconciliation,” in Truth V. Justice: The Morality of Truth Commissions, eds, Robert I.
Rotberg and Dennis ompson (Princeton: Princeton University Press, 2000): 6.
806
19 David Pion-Berlin, “To Prosecute or to Pardon? Human Rights Decisions in the Latin
American Southern Cone,” Human Rights Quarterly 16, no. 1 (1994): 105–30.
20 Kieran McEvoy and Louise Mallinder, “Amnesties in Transition: Punishment,
Restoration, and the Governance of Mercy,” Journal of Law and Society 39 (2012): 410–
40; Ronald C. Slye, “e Legitimacy of Amnesties under International Law and General
Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?’, Virginia Journal
of International Law 43 (2002): 173–248.
21 Raid Tlemçani, Algeria under Bouteflika: Civil Strife and National Reconciliation,
(Carnegie Endowment for International Peace, 2008).
22 Human Rights Wat, “Algeria: Justice at Risk for Abuses Past and Present,”
www.hrw.org/news/2005/06/21/algeria-justice-risk-abuses-past-and-present (accessed
July 1, 2015).
23 Raid Tlemçani, Algeria under Bouteflika: Civil Strife and National Reconciliation,
(Carnegie Endowment for International Peace, 2008).
24 Elizabeth Bryant. “Analysis: Algeria’s Reconciliation Plan.” UPI, August 17 2005.
25 Ibid., 9.
26 P. Flory, “International Criminal Justice and Truth Commissions: From Strangers to
Partners?”, Journal of International Criminal Justice 13 (2015): 19–42.
27 Matiangai Sirleaf, “e Truth about Truth Commissions: Why they do not Function
Optimally in Post-conflict Societies,” Cardozo Law Review (2014): 2263–347.
28 Eric Wiebelhaus-Brahm, “e Best Laid Plans: How the Failure to Effectively Implement
DDR and Transitional Justice fueled Iraq’s Instability,” Interdisciplinary Journal of
Human Rights Law (Forthcoming).
29 Leslie Vinjamuri and Ja L. Snyder, “Advocacy and Solarship in the Study of
International War Crime Tribunals and Transitional Justice,” Annual Review of Political
Science 7 (2004): 353.
30 Ja L. Snyder and Leslie Vinjamuri, “Trials and Errors: Principle and Pragmatism in
Strategies of International Justice,” International Security 28, no. 3 (2003/2004): 6. See
also Helena Cobban, Amnesty after Atrocity? Healing Nations after Genocide and War
Crimes, (Boulder: Paradigm, 2007); Tom Hadden, “Punishment, Amnesty and Truth:
807
Legal and Political Approaes,” in Democracy and Ethnic Conflict: Advancing Peace in
Deeply Divided Societies, ed. Adrian Guelke (New York: Palgrave Macmillan, 2004).
31 Mark A. Drumbl, Atrocity, Punishment, and International Law, (New York: Cambridge
University Press, 2007). See also Mark Osiel, Mass Atrocity, Collective Memory, and the
Law, (New Brunswi, N.J.: Transaction Publishers, 1997); Jon Elster, “Introduction,” in
Retribution and Reparation in the Transition to Democracy, ed. Jon Elster (Cambridge:
Cambridge University Press, 2006), 1–14; José Zalaque, “Balancing Ethical Imperatives
and Political Constraints: e Dilemma of New Democracies Confronting Past Human
Rights Violations,” The Hastings Law Journal 43, no. 6 (1992): 1425–38.
32 Eric Wiebelhaus-Brahm, Truth Commissions and Transitional Societies: The Impact on
Human Rights and Democracy, (New York: Routledge, 2010); Tricia D. Olsen, Leigh A.
Payne, and Andrew G. Reiter, Transitional Justice in Balance: Comparing Processes,
Weighing Efficacy, (Washington DC: United States Institute of Peace Press, 2010);
Hunjoon Kim and Kathryn Sikkink, “Explaining the Deterrence Effect of Human Rights
Prosecutions for Transitional Countries,” International Studies Quarterly 54, no. 4 (2010):
939–63; James D. Meernik, Angela Niols, and Kimi L. King, “e Impact of
International Tribunals and Domestic Trials on Peace and Human Rights aer Civil
War,” International Studies Perspectives 11, no. 3 (2010).
33 Oskar N.T. oms, James Ron, and Roland Paris, “State-Level Effects of Transitional
Justice: What Do We Know?”, International Journal of Transitional Justice 4, no. 3
(2010): 1–26; Leslie Vinjamuri and Ja Snyder, “Law and Politics in Transitional Justice,”
American Review of Political Science 18 (2015): 303–27.
34 International Center for Transitional Justice and Human Rights Center of the University
of California at Berkeley, Iraqi Voices: Attitudes toward Transitional Justice and Social
Reconstruction, (New York: International Center for Transitional Justice, 2004).
35 John Hendren. “Ex-Baathists Play Crucial Insurgent Role, US Says.” Los Angeles Times
2005.
36 M. Cherif Bassiouni and Miael Wahid Hanna, “Ceding the High Ground: the Iraqi
High Criminal Court Statute and the Trial of Saddam Hussein,” Case Western Reserve
Journal of International Law 39, no. 1 & 2 (2006–2007).
808
37 Eric Wiebelhaus-Brahm, “e Best Laid Plans: How the Failure to Effectively Implement
DDR and transitional justice fueled Iraq’s instability,” Interdisciplinary Journal of
Human Rights Law (Forthcoming); Mushreq Abbas. “National Reconciliation in Iraq
Remains Elusive,” Al-Monitor, Mar 20, 2015, www.al-
monitor.com/pulse/originals/2015/03/iraq-national-reconciliation-innocent-islamic-
state.html?utm_source=Al-
Monitor+Newsleer+%5BEnglish%5D&utm_campaign=a0f5616e39-
Mar_23_2015&utm_medium=email&utm_term=0_28264b27a0-a0f5616e39-93128969#
(accessed September 4, 2016).
38 Julian Borger, “Smuggled Syrian Documents Enough to Indict Bashar Al-Assad, Say
Investigators.” The Guardian, May 12, 2015,
www.theguardian.com/world/2015/may/12/smuggled-syrian-documents-indict-assad-
investigators?
utm_source=Sailthru&utm_medium=email&utm_term=%2AMideast%20Brief&utm_ca
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39 Toby Cadman, “Libya and the Icc: Courting Chaos and Confusion.” Al Jazeera, April 23
2014, www.aljazeera.com/indepth/opinion/2014/04/libya-icc-courting-aos-confus-
201442282259133416.html (accessed September 4, 2016).
40 Rosalind Shaw and Lars Waldorf, “Introduction: Localizing Transitional Justice,” in
Localizing Transitional Justice: Interventions and Priorities after Mass Violence, eds,
Rosalind Shaw, Lars Waldorf, and Pierre Hazan (Stanford, CA: Stanford University
Press, 2010).
41 A. MacDonald, “From the Ground Up: What Does the Evidence Tell Us About Local
Experiences of Transitional Justice,” Transitional Justice Review 1, no. 3 (2015): 72–121.
42 Patricia Lundy and Mark McGovern, “Whose Justice? Rethinking Transitional Justice
from the Boom Up,” Journal of Law & Society 35, no. 2 (2008): 265–92.
43 J. Ramji-Nogales, “Designing Bespoke Transitional Justice: A Pluralist Process
Approa,” Michigan Journal of International Law 32, no. 1 (2010): 1–72; Moses
Chrispus Okello, “Aerword: Elevating Transitional Local Justice or Crystallizing
Global Governance?”, in Localizing Transitional Justice: Interventions and Priorities
809
after Mass Violence, eds, Rosalind Shaw, Lars Waldorf, and Pierre Hazan (Stanford, CA:
Stanford University Press, 2010).
44 Dustin N. Sharp, “Addressing Dilemmas of the Global and the Local in Transitional
Justice,” Emory International Law Review 29, no. 1 (2014): 71–117.
45 Rosalind Shaw and Lars Waldorf, “Introduction: Localizing Transitional Justice,” in
Localizing Transitional Justice: Interventions and Priorities after Mass Violence, eds,
Rosalind Shaw, Lars Waldorf, and Pierre Hazan (Stanford, CA: Stanford University
Press, 2010).
46 M. Goodale, “Introduction: Locating Rights, Envisioning Law between the Global and
the Local,” in The Practice of Human Rights, eds, M. Goodale and S. Merry (New York:
Cambridge University Press, 2007).
47 Doris H. Gray and Terry Coonan, “Silence Kills! Women and the Transitional Justice
Process in Post-Revolutionary Tunisia,” International Journal of Transitional Justice 7,
no. 2 (2013): 348–57.
48 M. Cherif Bassiouni, “Iraq Post-Conflict Justice: A Proposed Comprehensive Plan”,
(Chicago: DePaul University International Human Rights Law Institute, 2004).
49 Eric Wiebelhaus-Brahm, “e Best Laid Plans: how the Failure to Effectively Implement
DDR and transitional justice fueled Iraq’s instability,” Interdisciplinary Journal of
Human Rights Law (Forthcoming).
50 Paul Gready and Simon Robins, “From Transitional to Transformative Justice: a New
Agenda for Practice”, International Journal of Transitional Justice 8, no. 3 (2014): 339–
61; Zinaida Miller, “Effects of Invisibility: in Sear of the “Economic” in Transitional
Justice,’ International Journal of Transitional Justice 2, no. 3 (2008): 266–91.
51 Gready and Robins 2014, 342.
52 oted in Ismael Muvingi, “Siing on Powder Kegs: Socioeconomic Rights in
Transitional Societies,” International Journal of Transitional Justice 3, no. 2 (2009): 165.
53 A. Cahill-Ripley, “Foregrounding Socioeconomic Rights in Transitional Justice: Realising
Justice for Violations of Economic and Social Rights,” Netherlands Quarterly of Human
Rights 32, no. 2 (2014): 183–213.
810
54 E. Smid and A. Nolan, “Do No Harm”? Exploring the Scope of Economic and Social
Rights in Transitional Justice,” International Journal of Transitional Justice 8, no. 3
(2014): 362–82; D. Sankey, “Towards Recognition of Subsistence Harms: Reassessing
Approaes to Socioeconomic forms of Violence in Transitional Justice,” International
Journal of Transitional Justice 8, no. 1 (2013): 121–40.
55 E. Smid and A. Nolan, “Do No Harm?” Exploring the Scope of Economic and Social
Rights in Transitional Justice,’ International Journal of Transitional Justice 8, no. 1
(2014): 373.
56 Pablo De Greiff, “Articulating the Links between Transitional Justice and Development:
Justice and Social Integration,” in Transitional Justice and Development: Making
Connections, eds, Pablo De Greiff and Roger Duthie (New York: Social Science Resear
Council, 2009) 46. See also Catalina Smulovitz, “e Discovery of Law: Political
Consequences in the Argentine Case,” in Global Prescriptions: The Production,
Exportation, and Importation of a New Legal Orthodoxy, eds, Yves Dezalay and Bryant
G. Garth (Ann Arbor, MI: University of Miigan Press, 2002).
57 Pablo De Greiff, “Articulating the Links between Transitional Justice and Development:
Justice and Social Integration,” in Transitional Justice and Development: Making
Connections, eds, Pablo De Greiff and Roger Duthie (New York: Social Science Resear
Council, 2009).
58 E. Smid and A. Nolan, “Do No Harm”? Exploring the Scope of Economic and Social
Rights in Transitional Justice,’ International Journal of Transitional Justice 8, no. 1
(2014): 362–82.
59 Lars Waldorf, “Anticipating the Past: Transitional Justice and Socioeconomic Wrongs,”
Social & Legal Studies 21, no. 2 (2012): 180.
60 Ismael Muvingi, “Siing on Powder Kegs: Socioeconomic Rights in Transitional
Societies,” International Journal of Transitional Justice 3, no. 2 (2009): 168.
61 Ibid., p169.
62 See, for example, David Baer, “Victims” Responses to Truth Commissions: Evidence
from South Africa,’ in Security, Reconstruction, and Reconciliation: When the Wars End,
ed. Muna Ndulo (London: University College London, 2007); Lia Kent, The Dynamics of
811
Transitional Justice: International Models and Local Realities in East Timor, (New York:
Routledge, 2012).
63 Mijke de Waardt, “Are Peruvian Victims being Moed? Politicization of Victimhood
and Victims” Motivations for Reparations,” Human Rights Quarterly 35, no. 4 (2013): 840
–7.
64 Lisa Laplante and Kimberly eidon, “Truth with Consequences: Justice and Reparations
in Post-truth Commission Peru,” Human Rights Quarterly 29, no. 1 (2007): 228–50.
65 Ismael Muvingi, “Siing on Powder Kegs: Socioeconomic Rights in Transitional
Societies,” International Journal of Transitional Justice 3, no. 2 (2009): 180.
66 Paul Gready and Simon Robins, “From Transitional to Transformative Justice: a New
Agenda for Practice,” International Journal of Transitional Justice 8, no. 3 (2014): 339–
61.
67 Rex Brynen, et al., Beyond the Arab Spring: Authoritarianism & Democratization in the
Arab World, (Boulder, Colo.: Lynne Rienner Publishers, 2012); Lin Noueihed and Alex
Warren, The Battle for the Arab Spring: Revolution, Counter-Revolution and the Making
of a New Era, (New Haven: Yale University Press, 2012).
68 Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and
Guarantees of Non-Recurrence, U.N. Doc. A/HRC/21/46 (August 9, 2012).
69 Reem Abou-El-Fadl, “Beyond Conventional Transitional Justice: Egypt”s 2011
Revolution and the Absence of Political Will,” International Journal of Transitional
Justice 6, no. 2 (2012): 320.
70 Kirsten J. Fisher and Robert Stewart, “Aer the Arab Spring: A New Wave of
Transitional Justice?”, in Transitional Justice and the Arab Spring, eds, Kirsten J. Fisher
and Robert Stewart (New York: Routledge, 2014).
71 Ibid., p 4–5.
72 Andrew G. Reiter, “Difficult but Ultimately Rewarding: Lessons from Transitional Justice
in Latin America,” ibid., Klaus Bamann, Robert Stewart, and Kirsten J. Fisher, “Risks
and Rewards: Lessons from Central and Eastern Europe’s Transitional Justice
Experiences,” ibid.
812
73 Al Arabiya, “Charges against Tunisia’s Ben Ali Baseless, Says His Lawyer,” Al Arabiya,
February 20 2012, hp://english.alarabiya.net/articles/2012/02/20/195800.html (accessed
September 4, 2016); Hemi Mistry, “Transitional Justice and the Arab Spring”, (Chatham
House, 2011).
74 Misa Benoit-Lavelle, “Tunisia: Wounded and Families of Martyrs Stage Sit in at
Transitional Justice Office,” All Africa, Mar 26 2012,
hp://allafrica.com/stories/201203261784.html (accessed September 4, 2016); Human
Rights Wat, “Flawed Accountability: Shortcomings of Tunisia’s Trials for Killings
During the Uprising,” (2015).
75 Miael Georgy. “Egyptian Court Sentences Mubarak and Sons to ree Years in Jail for
Corruption,” Reuters, May 9 2015, www.reuters.com/article/2015/05/09/us-egypt-
mubarak-idU.S.KBN0NU0D620150509; Ali Abdelaty, “Egyptian Court Orders Release of
Mubarak’s Sons,” ibid., January 22, www.reuters.com/article/2015/01/22/us-egypt-
mubarak-sons-idU.S.KBN0KV13Y20150122; Jared Malsin, “Egyptian Court Sentences
Ousted President Morsi to Death,” The New York Times, May 16 2015,
www.nytimes.com/2015/05/17/world/middleeast/egyptian-court-sentences-ousted-
president-morsi-to-death.html?
_r=0&gwh=1EC1A8FA1ED1695F0DD098D8DB13181C&gwt=pay; al Jazeera, “Egypt’s
Morsi Sentenced to 20 Years in Jail,” www.aljazeera.com/news/2015/04/egypt-morsi-
sentenced-150421063227546.html (accessed May 24, 2015).
76 Al Jazeera, “Gaddafi’s Son Saif Al-Islam Sentenced to Death,”
www.aljazeera.com/news/2015/07/gaddafi-son-saif-al-islam-libya-sentenced-death-
150728084429303.html?
utm_source=Sailthru&utm_medium=email&utm_term=%2AMideast%20Brief&utm_ca
mpaign=New%20Campaign (accessed July 28, 2015).
77 Human Rights Wat, “Libya: Flawed Trial of Gaddafi Officials,”
www.hrw.org/news/2015/07/28/libya-flawed-trial-gaddafi-officials?
utm_source=Sailthru&utm_medium=email&utm_term=%2AMideast%20Brief&utm_ca
mpaign=New%20Campaign (accessed July 28, 2015).
78 Amnesty International, “Libya: Trial of Former Al-Gaddafi Officials by Video Link a
Farce,” Amnesty International, www.amnesty.org/en/articles/news/2014/04/libya-trial-
813
former-al-gaddafi-officials-video-link-farce/ (accessed May 24, 2015).
79 Karina Piser and Rim Dhaouadi, “Excluding the Old Regime: Political Participation in
Tunisia,” Muah, hp://muah.org/excluding-the-old-regime-political-participation-in-
tunisia/?
utm_source=Sailthru&utm_medium=email&utm_term=%2AMideast%20Brief&utm_ca
mpaign=Mideast%20brief%205-6-14#.U2jvSPldXmd (accessed May 6, 2014); Anne Wolf,
“Despite Elections, Transitional Justice Still Elusive in Tunisia,” Middle East Institute,
www.mei.edu/content/article/despite-elections-transitional-justice-still-elusive-tunisia?
utm_source=Sailthru&utm_medium=email&utm_term=%2AMideast%20Brief&utm_ca
mpaign=2014_e%20Middle%20East%20Daily_10.27.14 (accessed October 27, 2014).
80 Ruti G. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16(2003):
69–94; Paige Arthur, “How “Transitions” Reshaped Human Rights: A Conceptual
History of Transitional Justice”, Human Rights arterly 31, no. 2 (2009): 321–67.
81 Jelena Subotić, Hijacked Justice: Dealing with the Past in the Balkans, (Ithaca: Cornell
University Press, 2009); Brian K. Grodsky, The Costs of Justice: How New Leaders
Respond to Previous Rights Abuses, (Notre Dame, Ind.: University of Notre Dame Press,
2010).
82 Seherezade Faramarzi. “Moroccans Split on Truth Commission Digging into Four
Decades of Human Rights Abuses.” Associated Press, May 12 2005.
83 Eric Wiebelhaus-Brahm, “Goals and Processes: e Arab World and the Transitional
Justice Impact Literature,” International Journal of Human Rights (Forthcoming).
84 Pierre Hazan, “IER Wages Democratic Bet,” International Justice Tribune, December 19,
2005.
85 Pierre Hazan, “IER: Truth without Punishment,” International Justice Tribune, January
23, 2006.
86 Eric Wiebelhaus-Brahm, “Goals and Processes: e Arab World and the Transitional
Justice Impact Literature,” International Journal of Human Rights (Forthcoming).
87 Alaa Shehabi, “Bahrain’s Independent Commission of Inquiry: A Path to Justice or
Political Shield,” Jadaliyya, www.jadaliyya.com/pages/index/3244/bahrains-
independent-commission-of-inquiry_a-path- (accessed May 20, 2015).
814
88 Gulf Daily News, “Rights Action Plan,” hp://gulf-daily-news.com/NewsDetails.aspx?
storyid=371383). is was first reported in the Follow-Up Body’s third report on
implementation, see Bahrain News Agency, “New Bici Recommendation
Implementation Report to Be Published,” www.bna.bh/portal/en/news/589428) (accessed
September 4, 2016).
89 In Mar 2014, 27 former government officials, regional experts, and security specialists
urged President Obama to keep pressure on the Bahraini government to implement the
recommendations. See Justin Lyn, “Experts Call on Obama to Promote Bahrain
Reform During Visit to Saudi Arabia,” Project on Middle East Democracy,
hp://pomed.org/pomed/experts-call-on-president-obama-to-discuss-reform-in-
bahrain-during-visit-to-saudi-arabia/?
utm_source=Sailthru&utm_medium=email&utm_term=%2AMideast%20Brief&utm_ca
mpaign=Mideast%20Brief%203-11-14 (accessed August 3, 2015).
90 Antoun Issa, “Bassiouni: Bahrain’s Progress Limited by “Piecemeal” Approa to
Reforms,” Al-Monitor, www.al-monitor.com/pulse/originals/2014/06/erif-bassiouni-
bici-bahrain-uprising-violations.html# (accessed August 4, 2015).
91 Roman David and Houda Mzioudet, “Personnel Change or Personal Change? Rethinking
Libya’s Political Isolation Law,” (Doha: Brookings Doha Center - Stanford University
Project on Arab Transitions, 2014): 5. See also Mark Kersten, “Libya’s Political Isolation
Law: Politics and Justice or the Politics of Justice?”, Middle East Institute,
www.mei.edu/content/libyas-political-isolation-law-politics-and-justice-or-politics-
justice (accessed May 23, 2015).
92 Asim Ashraf, “Hopes Fade for Transitional Justice in Egypt,” alAraby, Mar 5 2015,
www.alaraby.co.uk/english/features/2015/3/5/hopes-fade-for-transitional-justice-in-
egypt.
93 Toby Cadman, “Morsi’s Punishment Is a Crime,” Al Jazeera,
www.aljazeera.com/indepth/opinion/2015/04/morsi-punishment-crime-sisi-egypt-
150421113902012.html (accessed May 24, 2015).
94 Atlantic Council, “Q&A: Everything You Need to Know About the Morsi Verdict,”
www.atlanticcouncil.org/blogs/egyptsource/q-a-everything-you-need-to-know-about-
the-morsi-verdict (accessed May 24, 2015).
815
95 Joe Stork, “Egypt’s Political Prisoners,” Human Rights Wat,
www.hrw.org/news/2015/03/06/egypt-s-political-prisoners (accessed May 24, 2015).
96 Jared Malsin, “Egyptian Court Sentences Ousted President Morsi to Death,” The New
York Times, May 16 2015, www.nytimes.com/2015/05/17/world/middleeast/egyptian-
court-sentences-ousted-president-morsi-to-death.html?
_r=0&gwh=1EC1A8FA1ED1695F0DD098D8DB13181C&gwt=pay (accessed September 4,
2016).
97 Human Rights Wat, “Egypt: Morsy Trial Badly Flawed”,
www.hrw.org/news/2015/04/25/egypt-morsy-trial-badly-flawed (accessed May 24, 2015);
Human Rights Wat, “Egypt: Scant Evidence for Mass Convictions”,
www.hrw.org/news/2015/04/19/egypt-scant-evidence-mass-convictions (accessed May
24, 2015).
98 Miael Georgy, “Egyptian Court Sentences Mubarak and Sons to ree Years in Jail for
Corruption,” Reuters, May 9 2015, www.reuters.com/article/2015/05/09/us-egypt-
mubarak-idU.S.KBN0NU0D 620150509 (accessed September 4, 2016).
99 Toby Cadman, “Morsi’s Punishment Is a Crime,” Al Jazeera,
www.aljazeera.com/indepth/opinion/2015/04/morsi-punishment-crime-sisi-egypt-
150421113902012.html (accessed May 24, 2015).
10 David Mendeloff, “Truth-seeking, Truth-telling and Post-conflict Peacebuilding: Curb
the Enthusiasm?”, International Studies Review 6, no. 3 (2004): 355–80.
101 Oskar N.T. oms, James Ron, and Roland Paris, “State-level Effects of Transitional
Justice: What do we Know?”, International Journal of Transitional Justice 4, no. 3
(2010): 1–26; A. MacDonald, “From the Ground Up: What does the Evidence Tell Us
about Local Experiences of Transitional Justice?”, Transitional Justice Review 1, no. 3
(2015): 72–121.
102 Journal of Turkish Weekly, “Tunisia Records 11,000 State Abuse Complaints in 60 Years,”
April 21, 2015, www.turkishweekly.net/news/184129/tunisia-records-11-000-state-abuse-
complaints-in-60-years.html (accessed September 4, 2016).
103 Anne Wolf, “Despite Elections, Transitional Justice Still Elusive in Tunisia,” Middle East
Institute, www.mei.edu/content/article/despite-elections-transitional-justice-still-
816
elusive-tunisia?
utm_source=Sailthru&utm_medium=email&utm_term=%2AMideast%20Brief&utm_ca
mpaign=2014_e%20Middle%20East%20Daily_10.27.14 (accessed October 27, 2014); Eric
Reidy, “Tunisia Transitional Justice Faces Obstacles,” AlJazeera, January 1, 2015,
www.aljazeera.com/news/middleeast/2014/12/tunisia-transitional-justice-face-obstacles-
20141228112518476386.html (accessed September 4, 2016); Rim El-Gantri, “Transitional
Justice in Tunisia: e Implications of Political Change,” Insight on Conflict,
www.insightonconflict.org/2015/05/transitional-justice-tunisia-implications-political-
ange/ (accessed May 22, 2015).
104 Carloa Gall. “Torture Claims in Tunisia Await Truth Commission,” The New York
Times, May 19 2015, www.nytimes.com/2015/05/20/world/africa/torture-claims-in-
tunisia-await-truth-commission.html?smid=tw-
share&_r=2&utm_source=Sailthru&utm_medium=email&utm_term=%2ADemocracy%2
0Lab&utm_campaign=Democracy%20Lab%20Weekly%20Brief%2C%20May%2026%2C%2
02015 (accessed September 4, 2016).
817
Selected Bibliography
Abou-El-Fadl, Reem. “Beyond Conventional Transitional Justice:
Egypt’s 2011 Revolution and the Absence of Political Will,”
International Journal of Transitional Justice 6, no. 2 (2012): 320.
de Greiff, Pablo and Duthie, Roger, eds. Transitional Justice and
Development: Making Connections. New York: Social Science
Resear Council, 2009.
Elster, Jon. Closing the Books: Transitional Justice in Historical
Perspective. New York: Cambridge University Press, 2004.
Fisher, Kirsten J. and Stewart, Robert. eds. “Aer the Arab Spring: A
New Wave of Transitional Justice?”, in Transitional Justice and
the Arab Spring. New York: Routledge, 2014.
Gray, Doris H. and Coonan, Terry. “Silence kills! Women and the
Transitional Justice Process in Post-revolutionary Tunisia” in
International Journal of Transitional Justice 7, no. 2 (2013): 348–
57.
Hayner, Priscilla. Unspeakable Truths: Transitional Justice and the
Challenge of Truth Commissions. New York: Routledge, 2011.
Minow, Martha. Between Vengeance and Forgiveness: Facing History
after Genocide and Mass Violence. Boston: Beacon Press, 1998.
Olsen, Tricia D., Payne, Leigh A., and Reiter, Andrew G. Transitional
Justice in Balance: Comparing Processes, Weighing Efficacy.
Washington DC: United States Institute of Peace Press, 2010.
Shaw, Rosalind, Waldorf, Lars and Hazan, Pierre, eds. Localizing
Transitional Justice: Interventions and Priorities after Mass
Violence. Stanford, CA: Stanford University Press, 2010.
Sikkink, Kathryn. The Justice Cascade: How Human Rights
Prosecutions Are Changing World Politics. New York: W. W.
Norton & Co., 2011.
818
24
Courts as a Tool in Transitions
Lessons from the special tribunal for
Lebanon
Chandra Lekha Sriram
819
Introduction
Transitional justice measures, including trials, are frequently used in
countries experiencing transitions from violent conflict or
authoritarian rule. ey are expected not only to deliver verdicts in
specific cases but also to help promote peace, stability, or
reconciliation. Advocates argue that accountability measures can
help to deter future violence and even prevent cycles of violence,
demonstrate and help to reinstall the rule of law and democracy, and
contribute in so doing to longer-term stability. Indeed, transitional
justice measures frequently operate alongside specific measures of
peacebuilding su as rule of law promotion, security sector reform,
and disarmament, demobilization, and reintegration of ex-
combatants. Further, increasingly those developing su measures of
peacebuilding are expected to take transitional justice measures into
account.1 What happens, however, when an ostensible transitional
justice measure is developed decades aer the end of the conflict,
where su standard measures of peacebuilding were not pursued, or
are incomplete? Can the meanism have the desired effects? And
what if that meanism is not designed to address the wide range of
past crimes, but a more recent, limited, set of crimes?
e Special Tribunal for Lebanon (STL) was created in 2007 with
the endorsement of the United Nations Security Council to address
the 2005 assassination of former Prime Minister Rafik Hariri and
related assassinations and crimes. Its structure is similar to so-called
hybrid tribunals, in that it utilises domestic and international staff,
although unlike others it is based outside Lebanon, in the
Netherlands. is entry considers the prospects for the STL to have
serious impact against the badrop of Lebanon’s long-term, but
unconsolidated, peacebuilding efforts. In this context, accountability
820
for the abuses of the war and in the 15 years aer it, in whi the
country was under Syrian occupation, has yet to take place and
seems unlikely. e STL is nonetheless oen expected to operate as a
meanism analogous to ordinary transitional justice meanisms,
yet it does not have the remit to address the legacy of conflict and
occupation. Instead its remit is limited to the 2005 assassination and
a few others. is apter argues that the STL cannot be considered
a transitional justice measure in the traditional sense, but that it does
have disruptive effects on ongoing governance disputes within the
country, highlighting or worsening factional divides.
821
From war to troubled peace
Lebanon experienced a brutal civil war from 1975–90, and a brief
resurgence of violence following the assassination of former Prime
Minister Rafik Hariri in 2005. e conflict was based on sectarian
violence amongst militias and between the militia and the
government, with significant regional dimensions. In 1976 Syria
invaded Lebanon with what it would later recast as an Arab
Deterrent Force doing peacekeeping; it remained an occupying
power until 2005. Israel also invaded southern Lebanon and put in
place a ‘buffer zone’ whi remains today. e U.N. Interim Force in
Lebanon, a peacekeeping force, was put in place in Southern
Lebanon in 1978 to monitor Israeli withdrawal from the buffer zone,
and remains in place today.
Official estimates of deaths during the civil war are about 145,000
deaths, of whi some 90 percent were civilians. Furthermore,
185,000 people were wounded, 2,000 women were killed for having
been raped, and 800,000 were displaced. In addition to Lebanese
citizens killed and displaced during the conflict, many disappeared,
and their numbers and fate have still not been determined, although
official estimates stand at about 17,000.2 Others disappeared within
or have been held in Syrian prisons, many as political prisoners,
even though this is a arge Syria denies.
In 1989, the Ta`if agreement (also known as the Charter of
National Reconciliation) was negotiated by surviving members of
the pre-war Lebanese Parliament, with the aim to heal national ris
and promote reconciliation, develop administrative and political
reforms, disarm militias, reaffirm sovereignty, and engage in
‘Lebanonization.’ While it reinforced the need for Israeli withdrawal,
it emphasized the importance of Syrian–Lebanon relations. Lebanon
822
remained, following the end of the conflict, under heavy Syrian
influence. Under the Ta`if agreement Syrian troops were to be first
redeployed to the Bekaa valley and then removed. ey remained in
the country, however, and were only fully removed in 2005 under
heavy international pressure (UNSC Resolution 1559). e Hezbollah
militia continues to maintain significant control in southern Lebanon
and poor suburbs of Beirut, and has not demobilized. In 2006, a short
war between Israel and Hezbollah militants operating in southern
Lebanon further devastated the country. Lebanon faces further
allenges with the massive influx of Syrian refugees in the wake of
the laer’s civil war following the 2011 uprisings, whi have also
increased sectarian divisions.
Politics in Lebanon continue to be shaped not only by ethnic
confessionalism, but also by rivalries between the Mar 8th and
Mar 14th coalitions. ese coalitions were split over the creation
and operation of the STL. e Mar 8th coalition, comprised of the
Shiite parties Amal and Hezbollah, allied with the Free Patriotic
Movement, refers to the date of a rally organized in 2005 to thank
Syria for its involvement in the country. ey view the creation of
the tribunal as external interference in Lebanon. e Mar 14th
coalition refers to the date in 2005 in whi 1 million Lebanese
protested in the streets, calling for Syrian withdrawal and an
international investigation of the Hariri assassination. e coalition
was comprised of the largely Sunni Future Movement founded by
Hariri, several Christian parties, the Lebanese Forces (formerly a
militia within the Christian-dominated Lebanese Front, whi
became a political party), and the Progressive Socialist Party, whi
supported the tribunal and rejects Syrian involvement in Lebanon.3
Prime Minister Rafik Hariri drove reconstruction during
Lebanon’s slow post-conflict reconstruction, obtaining grants and
loans from oil-ri states in the region and Western donors. e
emphasis, however, has been less on peacebuilding and more on
physical reconstruction, with Gulf donors and Hariri emphasizing
823
physical reconstruction projects and Western donors emphasizing
tenical support to governance reform.4 e operating environment
has remained allenging in the nearly 25 years since the Ta`if
Agreement. Confessionalism and clientelism continue to dominate
governance, with state weakness enabling sectarian groups and
individuals to control the state. e situation endures even though
the Ta`if Agreement and the 1990 Constitution sought to limit or
eliminate confessionalism.5 Further, ea sectarian group has its own
regional patrons, variously Saudi Arabia, Egypt, Jordan, Syria, and
Iran. ese factors make state consolidation difficult. Even aer
Syrian withdrawal in 2005, the country remained vulnerable to
pressures from regional forces. Militias were only partially
demobilized, and Hezbollah and the Amal militia continue to
operate and control particular territories. e fragile state has been
further tested with the influx of refugees from the war in Syria.
824
Human rights, rule of law, and accountability
Human rights and rule of law
In this context, the protection and promotion of human rights are
difficult. While the judiciary is formally independent, sectarian
divisions are said to interfere in its management by the Supreme
Judicial Council. e judiciary is widely considered to be corrupt
and subject to political manipulation. More generally, it is very slow
and inefficient. However, there are exceptional judges who have
displayed independence and professionalism and have applied
international human rights and refugee law in their decisions. Most
judges have appropriate training, so the issue is less about capacity-
building than the politicized environment in whi they operate.6
Lebanon also is a party to major international human rights
conventions.7 It even ratified the Optional Protocol to the Torture
Convention in 2008, whi obligates it to create a national office of
prevention of torture within a year, but it had not done so by August
2015.
Accountability
Lebanon has not had many of the transitional justice measures seen
in other countries emerging from violent conflict, su as
commissions of inquiry, significant trials for past abuses, reparations,
or high-profile memorials for victims. e Amnesty Law of 1991
(law 94/91) provides amnesty for all crimes commied by Lebanese
militias and armed groups prior to Mar 28, 1991. is has made it
impossible to try war crimes, crimes against humanity, and forced
825
disappearances domestically. e law, however, excludes political
assassination. ere has, however, been limited, selective prosecution
for abuses of human rights or violations of humanitarian law.8 For
example, Samir Geagea, the leader of the Lebanese Forces, was
imprisoned for life aer being accused of responsibility for a ur
bombing near Beirut in 1994, and his party was outlawed. He was
given amnesty by the legislature in 2005. Meanwhile, Elias Hobeika,
former leader of the Lebanese Forces (LF) security agency and
implicated in the 1982 Sabra and Shatila massacres, escaped
prosecution and was elected to Parliament twice. ere has been no
plan for broader war crimes or human rights trials, and there are no
policies in place for transitional justice meanisms or a national
reconciliation process.
us, proposals for a national commemorative day for the civil
war have been rejected. Nonetheless, some have suggested that
commemorative events in 2005 following the assassination of Hariri
may have helped initiate a allenge to the culture of amnesia.9 Civil
society organizations in particular have developed memorials and
recollection of the events of the civil war through films and
documentaries.10 Overall, there remains relatively lile public
discussion of the past, and certainly no shared narrative regarding
the conflict. e laer is oen difficult, if not impossible, as
evidenced by the failed aempt for more than a decade to develop a
shared history textbook covering the period of the civil war.11
Similarly, lile has been done to address the fate of the disappeared
or the needs of their relatives.12
826
e Special Tribunal for Lebanon
It is in this context of unfinished peacebuilding, unaddressed legacies
of the civil war and subsequent violence, and local and regional
political dynamics that the tribunal to address the assassination of
former Prime Minister Rafik Hariri was created. Allegations of
Iranian and Syrian involvement in the assassination have been rife
for years.13 Because many, both domestically and in the
international community, thought accountability for the
assassination and related assassinations was essential but not
possible in Lebanese courts, the STL was created. e STL was
created to prosecute just a few crimes—the February 14th
assassination of former Prime Minister Hariri in 2005 and several
related assassinations.14 While the STL shares aracteristics with
some transitional justice measures, specifically hybrid tribunals, this
may largely be structural, rather than in intent and content. It does
utilize a mixture of domestic Lebanese substantive law and
international criminal procedure, and it is sited in the Hague
alongside the International Criminal Court, among others. Yet it is
unclear if it addresses transition from the civil war in any way given
that it was created long aer the Ta`if agreement and its limited
substantive focus. It could be said to speak to a separate transition
process: the withdrawal of Syria. However, this argument has not
been made in or around the tribunal. e question remains whether
it could nonetheless catalyze efforts at broader accountability in the
country.
e tribunal’s creation
827
In April 2005, the United Nations Security Council mandated the
creation of a commission of inquiry into the assassination.15 at
commission concluded that the assassination was carried out by a
group with ‘extensive organization,’ and indicated that there was
evidence of Lebanese and Syrian involvement. It provided evidence
resulting from the inquiry to Lebanese judicial authorities, and
recommended that further investigations be undertaken by domestic
judicial and security forces.16
Following a resolution by the U.N. Security Council calling for a
criminal tribunal in 2006, the U.N. and the government of Lebanon
entered into agreement for the creation of the STL to prosecute
individuals responsible for the organization of the Hariri
assassination and related killings. e creation of the tribunal was
endorsed by the Council in 2007.17 e tribunal is a mixed one with
seven international and four Lebanese judges. e inclusion of
Lebanese judges has been allenged by some as likely to affect the
impartiality of the tribunal given the politicization and corruption in
the domestic judiciary.18
Tribunal controversy
e tribunal is controversial because it is only designed to address a
very limited number of crimes in terms of temporal and subject
maer jurisdiction: specifically the assassination of Hariri and
related assassinations and planning. e tribunal is not designed to
address either the extensive history of assassinations during and
since the end of the civil war, or disappearances and violations of
international human rights and international humanitarian law
during the armed conflict.19 Many civil society activists and
organizations that support the idea of transitional justice, whether
judicial or non-judicial, view the tribunal as limited, politicized, and
not suited to address accountability. Families of and groups
828
concerned with the fate of those disappeared during the war
question the creation of a tribunal to investigate the killings of a few
elites with no serious investigations into the fate of their relatives.
Indeed, even the international nature of the tribunal, whi in form
appears similar to hybrid tribunals su as the Special Court for
Sierra Leone, but whi does not have jurisdiction over any
international crimes, might be called into question. e
internationalization of trials may be justified here by the inability of
the domestic judiciary to address su politicized cases or the
presence of potential accused outside Lebanon, but doesn’t mean
that the STL is similar to su hybrid tribunals in substantive
ways.20
Some critics see the tribunal’s creation as having been motivated
more by politics than a desire to pursue justice or confront a broader
culture of impunity.21 In particular, France and the United States are
said to have used the creation of the tribunal to isolate and in some
sense ‘criminalize’ Syria, whi is seen by many as at least partially
responsible for the assassination. However, the anges in
administration in both countries meant that their interest in
promoting the tribunal has waned, and their concerns about
destabilizing Syria increased; the civil war in Syria and its
destabilizing effects on the region and Lebanon have not increased
interest in promoting the tribunal.22 Nonetheless, the tribunal
remains a factor in domestic Lebanese politics, with the Mar 14th
faction most supportive of the tribunal being led by Saad Hariri, the
victim’s son and former prime minister, and the primary opposition
faction alleging the tribunal is politicized and designed to support
his and the faction’s agendas.
e STL and hybrid tribunals
829
ere are numerous models of hybrid tribunals, and there is some
controversy over whether the STL is indeed su a tribunal,
although it shares some aracteristics with existing hybrid models.
Generally, hybrid tribunals share a number of features: they are sited
in the country affected by the violence or conflict to be addressed,
they utilize international and domestic judges, lawyers, and other
court staff, they prosecute international crimes, and may also have
some domestic crimes within their remit.23 e STL shares few of
these aracteristics: it applies domestic law pertaining to domestic
crimes of terrorism and murder, rather than international law crimes
su as crimes against humanity or war crimes.24 It is sited just
outside the Hague, nearer to other international criminal tribunals
su as the International Criminal Court and the ad hoc tribunals for
the former Yugoslavia and Rwanda, rather than in Lebanon itself, for
reasons of security. It does, however, include domestic and
international staff, with Lebanese and international judges, and an
international ief prosecutor, head of defense, and registrar. ere is
thus an argument for treating it as a hybrid.25
e arguments for the tribunal also are quite similar to those
made for hybrid tribunals. Advocates of hybrid tribunals oen argue
that they should be created to pursue accountability where the
domestic judiciary is unable to address serious crimes of the past due
to damage, incapacity, or bias. ey also argue that they help to
address the needs of affected victims and society, as they are
ordinarily located in the affected country. Hybrid tribunals are oen
expected to have a capacity-building and demonstration effect for
weak or corrupt national judiciaries, through the inclusion of
national staff, presence on the territory affected, and legacy-building
through engagement with the domestic judiciary. Similar arguments
have been put forth in support of the STL, despite its location
outside the country. Advocates defend its mixed aracter as
necessary due to the bias and corruption of the domestic judiciary,
and emphasize their hopes for a wider legacy for domestic rule of
830
law. e fact that the tribunal will apply purely domestic law but
apply international standards regarding the rights of the defendant
and due process, they say, has the potential to enhance domestic rule
of law in Lebanon by having a more directly analogous relevance, at
least for specific crimes.26 Finally, advocates hope that the tribunal
will contribute to, rather than undermine, peace.27
It might be hoped that the tribunal, notwithstanding its mandate
to try a limited number and type of cases, could re-open broader
domestic debates regarding accountability and impunity that might
eventually lead to either a real impetus for reform of rule of law
and/or transitional justice processes, open political space for
discussions about the civil war, or even enable reconciliation
processes.28 ere is some evidence that the procedures of the
tribunal have influenced some domestic legal discussions: following
the release of four generals detained for the tribunal (see below), the
minister of justice presented a proposal that would reform the Code
of Criminal Procedure seing a limit to the period of detention
without arge to a year, albeit mu longer than the tribunal’s 90-
day rule.29 Advocates also argue that the Lebanese judges serving on
the tribunal will return to the country with expertise that will be
shared with colleagues.
Some argue that the tribunal could serve as an example of
impartial justice in operation, and could result in justice for a
political crime, both rarities in Lebanon. ey suggest as well that
the tribunal’s creation, justified in part with reference to the inability
of the Lebanese judiciary to manage a case of this nature, or to act
impartially, will draw aention to the need for judicial reform in the
country. ey note too that families of the disappeared have sought
to use the creation of the tribunal as an opportunity to draw
aention to their concerns.
However, the prospects for criminal accountability for other
crimes domestically remains unlikely so long as the 1991 amnesty
remains in force, and leaders and fighters from various fighting
831
forces who may be responsible for abuses are in office. In addition, it
is not clear that the tribunal will have any further impact on rule of
law promotion in the country. While some discussions regarding the
possibility of a truth commission were initiated with the support of
the International Centre for Transitional Justice and the
International Federation of Human Rights (FIDH), one observer
suggests that the 2006 Israeli war with Hezbollah interrupted these
discussions, whi have not been seriously resumed.
A frequent tool used by tribunals to enable connection with and
impact on domestic populations and institutions is the outrea
office.30 It is expected to communicate information about the
institution and trials to the public and in some cases to support
engagement with domestic courts. e outrea office for the
tribunal was set up about four years aer the tribunal itself, and is
based in Beirut. e office has engaged in support to some training
on international humanitarian law and facilitating some visits to the
tribunal itself for journalists and others.31
e effects of outrea may be hampered by the fact that the
tribunal’s mandate is viewed as selective given the absence of any
processes to address the legacy of the civil war, the assassinations
and disappearances (in Syria as well as Lebanon) since the end of the
war, or more recent violent conflict. Its limits may mean that the
direct or symbolic effects on rule of law in the country are similarly
limited. Some aracterize the tribunal as simply demonstrating that
there is a double standard—justice for wealthy elites and no justice
for the rest of the populace. Others have suggested that the funds
spent on the tribunal would be beer spent on domestic judicial
reform. e legitimacy of the tribunal may have further been
hampered by the la of transparency in its own processes,
particularly regarding the selection of judges. Finally, the tribunal is
distinct from others in a number of special features. is may leave
it open to greater criticism, or may be evidence of development of
expanded practice in this area.
832
Special features of the STL
e tribunal has a number of features whi further distinguish it,
for good or ill, from many hybrid tribunals. It is the first
internationalized criminal court explicitly trying the crime of
terrorism as su, and it relies on a domestic definition, not least
because there is no comprehensive international legal definition of
the concept.32 It also is unique in that trials in absentia are
permied, whi critics argue is inconsistent with international
human rights law.33 Finally, the tribunal allows for victim
participation.34 Article 17 of the statute, copying the language of
article 168 of the statute of the International Criminal Court, permits
victims to present their views during the proceedings. e purpose of
inclusion of victims in su proceedings, according to one jurist, is
not merely judicial, but also serves reparative and symbolic
functions for the victims themselves; in theory, su participation
might serve symbolic functions for the wider society as well.35
However, given the relatively limited scope of persons likely to be
considered victims for the purposes of the STL, in comparison to
those considered victims before the Extraordinary Chambers in
Cambodia, whi has similar provisions, the impact is likely to be
limited. In particular, the large number of victims and families of
victims, including the disappeared, would not be able to make
statements at the STL as the crimes to whi they could refer do not
fall within the remit of the court. At this stage, in the absence of any
criminal proceedings relating to the crimes falling under the
jurisdiction of the tribunal, it is too early to assess the impact of
victim participation at the STL. It is indeed too early to assess the
tribunal in practice in any detail for the same reason. However, there
have been several proceedings before the tribunal, whi are
discussed next.
833
e tribunal in practice: politics, legitimacy and
controversy
Given the political context and the politicized nature of its creation,
the STL is viewed by many as politicized and potentially biased
itself. is perception may have significantly undermined any
expected impact of its operation on Lebanese politics, society, and
discussions about accountability, even if it operates in an impartial
and independent fashion. e perceived legitimacy is probably not
helped by the fact that it has yet to try a defendant for the crimes in
question. While indictments were issued in 2011 for Salim Jamil
Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and
Assad Hassan Sabra, none are in custody. Although, as discussed
above, they can be tried in absentia.36
Furthermore, the hearings it has held have been dominated by
controversy. In April 2009, the tribunal decided to free four accused
pro-Syrian generals who had been detained by the Lebanese
government. e four men, former head of the presidential guard,
Mustafa Hamdan, security services director Jamil al-Sayed, domestic
security ief Ali Hajj, and military intelligence ief Raymond
Azar, were set free aer then-prosecutor of the tribunal, Daniel
Bellemare, requested that they be released on the grounds that there
was not sufficient evidence to make it possible for him to bring
indictments in the legally-mandated time frame of 90 days.37 A key
witness, Mohammed Zuhair Siddiq, a Syrian army deserter, had
recanted his original statements incriminating the four, and arrest
warrants were issued for him in both Syria and Lebanon.38
Following his release, al-Sayed repeatedly made statements
allenging the impartiality of the Lebanese judicial system and
high-level politicians. Members of the Mar 8th faction have
claimed the Lebanese judges at the tribunal are corrupt, but provide
no specific evidence for su allegations, and indeed the release
order by the STL would seem to indicate that it is not. Al-Sayed
834
subsequently submied a claim before the tribunal that he was the
victim of arbitrary detention on the basis of libel. e maer has
been assigned to a pre-trial judge and al-Sayed was provided with
counsel, but following the order that documents be released to him
and an appeal by the prosecutor in 2011, there is no further record of
proceedings on the tribunal site.39
e tribunal could have a destabilizing effect on Lebanese politics,
not just based on whom it arges, but also who presents testimony.
Walid Jumbla, the leader of the Progressive Socialist Party,
predicted that there would be an ‘earthquake’ when indictments
were issued. Some observers are more circumspect, suggesting that
the tribunal may have exacerbated existing political divisions, but
that it did not create them. And indeed, in May 2015 Jumbla
testified before the tribunal, and emphasized his belief that the
Syrian government was behind the Hariri assassination, without
significant political fallout.40
e two defendants currently facing arges before the court are
journalists, not defendants for the original mandate of the court.
Instead, Karma Al Khayat and her employer Al Jadeed, and Ibrahim
al Amin and his employer Akhbar Beirut, face contempt arges for
obstruction of justice based on their reporting of information
deemed to interfere with the confidentiality of witnesses.41
835
Conclusion
As one analyst asked the author, “how can we establish peace with
half a justice done?”42 Despite the passage of 20 years since the Ta`if
agreement, it is difficult to say that peace is truly consolidated in
Lebanon. e absence of a clear peace agreement or peacebuilding
process has hampered efforts to pursue accountability, or even
establish a shared narrative of the events of the civil war. Nor has it
been possible to address abuses whi took place under Syrian
occupation, even ten years aer Syrian withdrawal.
e STL is not designed to engage the larger legacy of the past,
given its limited mandate. And it is unlikely, on the evidence to date,
to have the hoped-for effect of promoting efforts of accountability or
even truth-telling domestically, engendering frustration and
disappointment among victims and families of victims and the
missing. Whether the tribunal will undermine stability, should it
have any defendants before it (as opposed to being prosecuted in
absentia) answering the substantive arges it is mandated to
address, remains to be seen. It is also unclear whether the tribunal
will have positive or negative effects upon efforts to promote rule of
law and accountability generally in Lebanon, or to address the
legacies of the civil war and subsequent Syrian occupation
specifically. e tribunal and its outrea efforts may have increased
the appetite for discussions of the past and of accountability, but this
too remains to be seen. In the context of conflict in Syria, regional
violence and refugee flows driven by so-called Islamic State, and
sectarian tensions within Lebanon, it is difficult to imagine that any
Syrian or Hezbollah-linked defendants can be prosecuted in person.
836
Notes
1 Guidance Note of the Secretary-General. United Nations Approach to Transitional
Justice (Mar 2010) at
www.un.org/ruleoflaw/files/TJ_Guidance_Note_Mar_2010FINAL.pdf (accessed
September 4, 2016).
2 Marieke Wierda, Habib Nassar, and Lynn Maalouf, “Early reflections on local
perceptions, legitimacy and legacy of the Special Tribunal for Lebanon,” Journal of
International Criminal Justice vol. 5 (2007), pp. 1065–81, at 1068; Iolanda Jaquemet,
“Fighting amnesia: ways to uncover the truth about Lebanon’s Missing,” International
Journal of Transitional Justice vol. 3, no. 1 (2008), pp. 1–18, at 1.
3 Wierda, Nassar, and Maalouf, “Early reflections.”
4 Are Knudsen, “Precarious peacebuilding: post-war Lebanon, 1990–2005,” CMI Working
Paper (Bergen: Chr. Mielsen Institute, 2005); Christine Sylva Hamieh and Roger
MacGinty, “A very political reconstruction: governance and reconstruction in Lebanon
aer the 2006 war,” Disasters vol. 34 (2010) pp. S103–S123.
5 Martin Kra, Muzna Al-Mazri, Heiko Wimmen, and Natasa Zupan, “Walking the line:
strategic approaes to peacebuilding in Lebanon,” (Bonn: Working Group on
Development and Peace, German Development Service, and Heinri Böll-Stiung,
December 2008), pp. 15–24. e Constitution of Lebanon (1926, as amended 1990), at
www.servat.unibe./icl/le00000_.html#A095_(accessed December 12, 2009). See
generally Robert Fisk, Pity the Nation: Lebanon at War (Oxford: Oxford Paperbas,
2001); Fawwaz Traboulsi, A History of Modern Lebanon (London: Pluto Press, 2007);
Sandra Maey, Lebanon: A House Divided (New York: W.W. Norton, 2006).
6 Author’s interviews in Beirut, September 2009, not for aribution.
7 Office of the High Commissioner for Human Rights, “Status of ratification interactive
dashboard,” at hp://indicators.ohr.org (accessed August 20, 2015).
8 Wierda, Nassar, and Maalouf, “Early reflections,” pp. 1066–9.
837
9 Knudsen, “Precarious peacebuilding,” p. 15.
10 Laurie King-Irani, “Commemorating Lebanon’s war amid continued crisis,” Middle East
Report Online (April 14, 2005) at hp://merip.org/mero/mero041405.html; Author’s
interview with Siad Darwish, who suggested there was increased openness to
transitional justice at the public and political level, referring to television programmes
with politicians discussing the war, and commemorative events. One observer suggests
that the Hariri assassination itself created new political space, by generating
international condemnation, some directed at Syria and Iran, lessening Syria’s influence
in Lebanon. Author’s interview with Fadel. Author’s interview with Zeina el-Hélou,
Lebanese Centre for Policy Studies (Beirut, September 2009).
11 United Nations Development Programme Lebanon, Peace Building Project Newsletter
(1st arter 2009) on file with author. Stephen Doery, “Journalists of all political
colors aend media workshop,” The Daily Star (Beirut) (July 8, 2009).
12 Wierda, Nassar, and Maalouf, “Early reflections,” pp. 1067–8.
13 An article in a German magazine spurred particular controversy in 2009 for alleging that
the Special Tribunal had evidence regarding Hezbollah’s role in the assassination and
was keeping it secret. Eri Follath, “New evidence points to Hezbollah in Hariri
murder,” Spiegel Online (May 23, 2009) at,
www.spiegel.de/international/world/breakthrough-in-tribunal-investigation-new-
evidence-points-to-hezbollah-in-hariri-murder-a-626412.html (accessed July 7, 2016).
14 One author, a Lebanese judge involved in the negotiations for the tribunal, says that the
extension of the tribunal’s jurisdiction to aas related to, but other than, that of Hariri
was to deter the “serial political assassinations” that followed Hariri’s. Choucri Sader,
“A Lebanese perspective on the Special Tribunal for Lebanon,” Journal of International
Criminal Justice, vol. 5 (2007), pp. 1083–9.
15 United Nations Security Council Resolution 1595, U.N. Doc. S/RES/1595 (April 7, 2005).
16 Report of the International Independent Investigation Commission established pursuant
to Security Council Resolution 1595, U.N. Doc. S/2005/662 (October 20, 2005).
17 United Nations Security Council Resolution 1664, U.N. Doc. S/RES/1664 (Mar 29,
2006); United Nations Security Council Resolution 1757, U.N. Doc. S/RES/1757 (May 30,
838
2007), whi includes the statute; for an overview, see International Center for
Transitional Justice, Handbook on the Special Tribunal for Lebanon (10 April 2008) at
www.ictj.org (accessed September 4, 2016).
18 Interviews with anonymous sources in Beirut, August–September 2009.
19 Wierda, Nassar, and Maalouf, “Early reflections,” pp. 1071–2.
20 Interviews with anonymous sources in Beirut, August–September 2009.
21 Wierda, Nassar, and Maalouf, “Early reflections,” pp. 1072–3.
22 Jan Erik Wetzel and Yvonne Mitri, “e Special Tribunal for Lebanon: A court ‘off the
shelf’ for a divided country,” The Law and Practice of International Courts and
Tribunals, (2008), pp. 81–114, 111.
23 Beth Dougherty, “Right-sizing international criminal justice: e hybrid experiment at
the Special Court for Sierra Leone,” International Affairs vol. 80, no. 1 (Mar 2004), pp.
311–28; compare Chandra Lekha Sriram, “Wrong-sizing international justice? e
hybrid tribunal in Sierra Leone,” Fordham International Law Journal vol. 29, no. 3
(February 2006), pp. 472–506; Cesare P.R. Romano, Andre Nollkaemper, and Jann K.
Kleffner, eds, Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and
Cambodia (Oxford: Oxford University Press, 2004).
24 Janice Yun, “Special Tribunal for Lebanon: a tribunal of international aracter devoid of
international law,” Santa Clara Journal of International Law vol. 7 (2009–10), pp. 181–
96; Marko Milanovi, “An Odd Couple: Domestic Crimes and International
responsibility in the Special Tribunal for Lebanon,” Journal of International Criminal
Justice vol. 5 (2007), pp. 1139–52; James Coayne, “e Special Tribunal for Lebanon: a
cripple from birth?” Journal of International Criminal Justice vol. 5 (2007), pp. 1061–64.
25 Neha Jain, “Conceptualizing internationalisation in hybrid criminal courts,” Singapore
Year Book of International Law vol. 12 (2008), pp. 81–95.
26 Wierda, Nassar, and Maalouf, “Early evidence,” p. 1078.
27 Wetzel and Mitri, “e Special Tribunal for Lebanon,” p. 111.
28 Wierda, Nassar, and Maalouf, “Early reflections,” p. 1077.
29 Author’s interviews in Beirut, off the record, September 2009.
839
30 Jessica Lincoln, Transitional Justice, Peace and Accountability: Outreach and the Role of
International Courts after Conflict (London: Routledge, 2011).
31 Outrea page on the website of the STL, at www.stl-tsl.org/en/about-the-stl/structure-
of-the-stl/registry/outrea (accessed August 21, 2015).
32 Jan Erik Wetzel and Yvonne Mitri, “e Special Tribunal for Lebanon: a court ‘off the
shelf’ for a divided country,” The Law and Practice of International Courts and
Tribunals (2008), pp. 81–114; Coayne, “e Special Tribunal for Lebanon,” p. 1062.
Miael P. Sarf, “Special Tribunal for Lebanon issues landmark ruling on definition of
terrorism and modes of participation,” ASIL Insights vol. 15, no. 6 (Mar 4, 2011).
Specific terrorist crimes are defined in a range of international and regional agreements
and customary international law.
33 Paola Gaeta, “To be (present) or not to be (present): Trials in absentia before the Special
Tribunal for Lebanon,” Journal of International Criminal Justice vol. 5 (2007), pp. 1165–
74; Wayne Jordash and Tim Parker, “Trials in absentia at the Special Tribunal for
Lebanon: incompatibility with international human rights law,” Journal of International
Criminal Justice vol. 8 (2010), pp. 487–509.
34 Cécile Aptel, “Some innovations in the statute of the Special Tribunal for Lebanon,”
Journal of International Criminal Justice vol. 5 (2007), pp. 1107–24; Jerome de
Hemptinne, “Challenges raised by victims’ participation in the proceedings at the
Special Tribunal for Lebanon,” Journal of International Criminal Justice vol. 8 (2010),
pp. 165–79.
35 de Hemptinne, “Challenges raised by victims’ participation,” pp. 167–8.
36 Ayyash et al (STL 11-01), at www.stl-tsl.org/en/the-cases/stl-11-01 (accessed August 21,
2015).
37 David Tolbert, “Introductory note to the Special Tribunal for Lebanon: orders regarding
the detention of persons and memorandum of understanding,” International Legal
Materials vol. 48 (April–June 2009), pp. 1149–51; Order regarding the detention of
persons detained in Lebanon in connection with the case of the attack against Prime
Minister Rafiq Hariri and Others Case No. CH/PTJ/2009/06 (April 29, 2009), reproduced
in International Legal Materials vol. 48 (April–June 2009), pp. 1152–60. Antonios
Tzanakopoulos, “Special Tribunal for Lebanon: the first orders by the pre-trial judge,”
840
ASIL Insights vol. 13, no. 11 (August 7, 2009) at www.asil.org. According to the rules of
procedure of the tribunal, persons cannot be detained without arges being laid for
more than 90 days.
38 “Lebanon frees four generals held in Hariri case”, AlArabiya.net (April 29, 2009)
www.alarabiya.net/articles/2009/04/29/71647.html#001; “Jamil Sayyad to Saad Hariri:
you are your father’s killer until you punish forgers.” AlManar TV (August 30, 2009)
www.almanar.com.lb/NewsSite/NewsDetails.aspx?id=101267&language=en (accessed
September 4, 2016).
39 Order Assigning Matter to Pre-Trial Judge Case No. CH/PRES/2010/01 (15 April 2010);
Appointment of Defence Counsel. Rule 58 of the Rules of Procedure and Evidence Case
No. CH/PTJ/2010/01 (April 26, 2010); Website of STL, In the matter of El-Sayedwww.stl-
tsl.org/en/the-cases/other-maers/in-the-maer-of-el-sayed (accessed August 21, 2015).
40 Author’s interview in Beirut, September 2009, not for aribution; “Lebanon’s Walid
Jumbla testifies in Rafiq Hariri tribunal,” AlArabiya (May 4, 2015) at
hp://english.alarabiya.net/en/News/middle-east/2015/05/04/Walid-Jumbla-to-testify-
before-Special-Tribunal-for-Lebanon-at-e-Hague.html (accessed August 21, 2015).
41 Website of STL, www.stl-tsl.org/en/the-cases/contempt-cases (accessed August 21, 2015);
Adam Taylor, “e U.N.’s tribunal in Lebanon has cost millions and made no arrests.
Now the journalists are on trial,” The Washington Post (April 7, 2015).
42 Author’s interview in Beirut, September 2009, not for aribution.
841
Selected Bibliography
Aptel, Cécile. “Some innovations in the statute of the Special
Tribunal for Lebanon,” Journal of International Criminal Justice
5 (2007): 1107–24.
Coayne, James. “e Special Tribunal for Lebanon: A cripple from
birth?” Journal of International Criminal Justice 5 (2007): 1061–4.
de Hemptinne, Jerome. “Challenges raised by victims’ participation
in the proceedings at the Special Tribunal for Lebanon,” Journal
of International Criminal Justice 8 (2010): 165–79.
Gaeta, Paola. “To be (present) or not to be (present): trials in absentia
before the Special Tribunal for Lebanon,” Journal of
International Criminal Justice 5 (2007): 1165–74.
Hamieh, Christine Sylva and Roger MacGinty. “A very political
reconstruction: governance and reconstruction in Lebanon aer
the 2006 war,” Disasters 34 (2010): S103–S123.
Jaquemet, Iolanda. “Fighting amnesia: ways to uncover the truth
about Lebanon’s missing,” International Journal of Transitional
Justice 3, no. 1 (2008): 1–18.
Jordash, Wayne and Tim Parker. “Trials in absentia at the Special
Tribunal for Lebanon: incompatibility with international human
rights law,” Journal of International Criminal Justice 8 (2010):
487–509.
Knudsen, Are. “Precarious peacebuilding: post-war Lebanon, 1990–
2005,” CMI Working Paper. Bergen: Chr. Mielsen Institute,
2005.
Kra, Martin, Muzna Al-Mazri, Heiko Wimmen, and Natasa
Zupan. “Walking the line: strategic approaes to peacebuilding
in Lebanon,” (Bonn: Working Group on Development and Peace,
842
German Development Service, and Heinri Böll-Stiung,
December 2008), 15–24.
Milanovi, Marko. “An odd couple: domestic crimes and
international responsibility in the Special Tribunal for Lebanon,”
Journal of International Criminal Justice 5 (2007): 1139–52.
Sader, Choucri. “A Lebanese perspective on the Special Tribunal for
Lebanon,” Journal of International Criminal Justice 5 (2007), 1083
–9.
e Constitution of Lebanon (1926, as amended 1990), at
www.servat.unibe./icl/le00000_.html#A095_ (accessed
September 4, 2016).
United Nations Security Council Resolution 1595, U.N. Doc.
S/RES/1595 (7 April 2005).
United Nations. Guidance Note of the Secretary-General. United
Nations Approach to Transitional Justice (Mar 2010) at
www.un.org/ruleoflaw/files/TJ_Guidance_Note_Mar_2010FIN
AL.pdf (accessed September 4, 2016).
United Nations. United Nations Security Council Resolution 1664,
U.N. Doc. S/RES/1664 (29 Mar 2006).
United Nations. United Nations Security Council Resolution 1757,
U.N. Doc. S/RES/1757 (30 May 2007).
Wetzel, Jan Erik, and Yvonne Mitri. “e Special Tribunal for
Lebanon: a court ‘off the shelf’ for a divided country,” The Law
and Practice of International Courts and Tribunals (2008): 81–
114.
Wierda, Marieke, Habib Nassar, and Lynn Maalouf. “Early
reflections on local perceptions, legitimacy and legacy of the
Special Tribunal for Lebanon,” Journal of International Criminal
Justice 5 (2007): 1065–81.
Yun, Janice. “Special Tribunal for Lebanon: a tribunal of
international aracter devoid of international law,” Santa Clara
Journal of International Law 7 (2009–10): 181–96.
843
25
Lessons on Transitioning from
Authoritarianism
Pitfalls and promise from Tunisia’s
experience
Rim El Gantri1,2
844
Introduction
I will tell the story of a transitional justice process in one of the last
hopes of the Arab Spring countries: Tunisia.
It was a warm winter, like most winters in the country.3 A poor,
young traveling salesman self-immolated himself in front of the
Governorate premises in Sidi Bouzid, protesting the brutal behavior
of local police. e incident, filmed by young people and shared on
social media, engendered protests in the region from Sidi Bouzid to
Kasserine and Gafsa, spreading in less than a month to big
governorates and cities, and leading to Ben Ali’s escape on January
14, 2011 under pressure of the slogans “dégage” and “Jobs, freedom
and national dignity.” A new era started for Tunisians who felt free
for the first time, and able to determine their own destiny. Aer
decades of repression, people could for the first time truly appreciate
the articulations “Rule of Law, and State of Institutions,” and “good
governance.” A few months later, an election commiee was created
and elections for a National Constituent Assembly took place in
October 2011, creating a new political landscape dominated by
Islamists who were arged with draing a new constitution.
However, fair and transparent elections alone could not respond to
the expectations of Tunisians who demanded truth and
accountability for the killings that occurred during the revolution,
and who called for the dismantling of the corrupt systems that had
aracterized governance in the country for decades.
Transitional justice is a popular demand, even if many people are
not familiar with the term itself. Tunisians asked for the concept
itself in requesting the implementation of its constituent
components. It was at that time considered by Civil Society
Organizations (CSOs) a solution to the pains of a society in
845
transition. Transitional justice, however, has been through different
phases in Tunisia, having ups and downs depending on the context
and the political forces that have influenced it. is apter paints a
picture of transitional justice as a continuing process in a country
marked by decades and even centuries of violations of human rights
and fundamental freedoms. Has Tunisia succeeded in its transition?
Will it be an example for the whole region? Can transitional justice
be implemented with non-reformed institutions? Is the country
entitled to take its time given its desire to create a unique and
exceptional process? ese questions will be examined via a
ronological assessment of the Tunisian process. I will first discuss
the genesis of transitional justice processes in Tunisia (Part I), and
then aempt to make predictions of the final outcomes by analyzing
elements related to the start of the process (Part II).
846
Part I the genesis of the Tunisian process, or
the medically assisted conception
Transitional justice commenced in Tunisia even before Ben Ali fled
the country and continued aer his exile via ad hoc responses that
tried to heal the wounds caused by violations whi occurred prior
to and during the revolution. e first initiatives led to a fragmented
process (Section I). However, victims and activists, unsatisfied with
these initial measures, continued to advocate for a more
comprehensive process of transitional justice (Section II).
Section I an initial fragmented process
Since its start, the Tunisian process was “event based,”4 ranging from
fact-finding commiees, to reparations programs for victims of the
dictatorship, to judicial proceedings. Shortly aer the revolution a
fact-finding commiee on the violations and abuses commied
during the revolution5 and a fact-finding commiee on investigation
of corruption and embezzlement6 were established. eir objective
was to reveal the truth about who was responsible for the injury and
death of the martyrs of the revolution. e processes also sought to
shed light on the actions of the corrupt. From businessmen and
senior officials in the Tunisian administration who had helped
establish pervasive systems of corruption, to the police and internal
security forces, upon whi Ben Ali and the Trabelsi clan had relied.
Both commiees worked under very difficult conditions because of
significant media and popular pressure.
Post-revolution Tunisia was aracterized by a new atmosphere of
freedom of expression, but also by a tendency to be suspicious of all
State instruments, especially those that, like the commiees, were
established by Ben Ali himself before fleeing the country.7 Hence,
847
both commiee reports failed to adequately reveal the truth around
the killings that occurred during the revolution. At any rate, the post
revolution government ignored the commiees’ reports, and
initiated a new parallel process by creating a commiee within the
National Constituent Assembly (NCA) to deal with the issues and
policies related to the martyrs and wounded of the revolution. Four
years aer the revolution, and despite the creation of these parallel
commiees and the creation of a ministry of transitional justice,
Tunisia is still unable to provide a complete and final list of the
martyrs and wounded of the revolution. In addition to the fact-
finding commiees, a Stolen Assets Recovery commiee was created
in Mar 20118 within the Central Bank, and Tunisia also retained a
lawyer in Switzerland to follow up on the country’s interests.
Unfortunately, the process was very slow and did not follow best
practices. Tunisia has recovered only very small amounts of stolen
assets, and disputes are still before the courts in a continuous ba
and forth between freezing and unfreezing assets. Simultaneously,
accountability efforts initiated by the victims of the revolution were
also taking place.
The judicial process: the unsuitability of military justice
Efforts to aieve accountability for past crimes began immediately
aer the revolution with military courts hearing numerous cases of
the martyrs and wounded of the revolution, as well as cases of other
victims who sought judicial resolution of their grievances.9 e
military courts were the only resort for victims, as civilian
magistrates laed citizens’ confidence. ey were considered an
apparatus of oppression, used to annihilate political opponents and
human rights activists and, therefore, a corrupt institution requiring
serious reform rather than a tool of justice. Nevertheless, military
judges were not fully independent, even if they enjoyed the respect
848
of citizens, because of the army’s position during the revolution.10 In
fact, military judges are not institutionally independent, as a judicial
military council aired by the Minister of Defense appoints them
and Tunisian penal laws do not enable accountability for command
responsibility, leading to the conviction only of those who carried
out orders, not those who gave those orders.
Despite a reform of military justice in 201111 whi allowed,
among others things, for a mixed military-civilian composition of
the courts, four years later victims are still dissatisfied with the
outputs and decisions of the military courts, especially in cases
where the defendants were army officers. On 12 April 12, 2014, the
Permanent Military Court of Appeal reduced the sentences of
convicted human rights offenders from 20 years of imprisonment to
sentences ranging from 6 months to 3 years. e sentences deepened
criticism of military courts and also provoked a wave of protests
among the victims, their families and lawyers, even leading to
hunger strikes. With a new constitution prohibiting the creation of
exceptional courts, and facing a political crisis in the pre-electoral
period, deputies decided to handover ongoing cases regarding
martyrs and wounded of the revolution to the specialized ambers
created by the transitional justice law. is is again an ‘event-based’
decision that will further complicate issues, as will be demonstrated
later in this apter.
Reparations for victims of the dictatorship
Reparations programs began very early. e first beneficiaries were
the families of the martyrs and the wounded of the revolution who
received two lump sum payments in compensation for the harm
caused by police and army agents. It was the first point in a long
discontinuous line of legislative efforts to provide compensation and
reparations. e vast amount of legislation obliges me to focus only
849
on the flagship texts. e first important piece of legislation was
Decree Law n°1 of 2011, dated February 19, 2011 and pertaining to
the general amnesty. is decree granted amnesty to “every person
having been subject, before January 14, 2011, of a conviction or a
legal prosecution in the courts, whatever their degree or their
category”12 for those specific infringements whi were usually
pretexts of the previous regime to imprison opponents. According to
Article 2 of this decree, all amnestied people would be “entitled to
the right to return to their employment and to a damages request.”
e text was followed by Decree Law n°97 of 2011, dated October
24, 2011, pertaining to reparations for the martyrs of the revolution
of 14 January and its wounded.13 ese two texts were the ‘parents’
or the source of dozens of laws, decree-laws, and decrees pertaining
to their own implementation, creating commiees to supervise their
implementation, but also amending them under popular pressure.
e reparations program was monitored by the National Constituent
Assembly (NCA), the Ministry of Human Rights and Transitional
Justice and various others ministries su as the Prime Ministry, the
Ministry of Defense and the Ministry of Social Affairs, who were
especially concerned given that reparations in some cases took the
form of recruitment in the public sector, free public healthcare
services and free transportation.
However, this arsenal of texts did not accord with victims’
expectations. Indeed, not only was the implementation of
reparations measures disorganized, but eligibility for reparations was
determined by an ‘events-based’ approa and according to political
affiliation; without any objective criteria and without a base in
human rights principles. Indeed, besides the victims of the
revolution, most of the beneficiaries of the general amnesty
(benefiing from public sector recruitment and monetary
compensations) were Islamists who belong to the Ennahdha political
party. is despite the fact that the country has registered several
different categories of victims since independence. e rest of the
850
victims, especially those who could not prove they were imprisoned
for reasons listed in Decree Law n°1, have to wait until the Truth and
Dignity Commission (TDC) decides on their files. Finally, CSO
studies and victim feedba show a general dissatisfaction with the
management of these files. On the other hand, the reparations issue
did not help defend the cause of victims. Opponents (especially
leists) used it as pretext to criticize Islamist victims. Reparations are
no longer a human right, but a reward for resistance during the
dictatorship.
e fragmentation described above, and the “absence of a clear
strategy and predominance of improvisation”14 pushed CSOs and
victims to advocate and work for the establishment of a
comprehensive and well-planned transitional justice process.
Section II towards a more comprehensive process of
transitional justice
In order to end isolated and fragmented measures, CSOs, victims
groups and the international community began advocating for a
comprehensive transitional justice policy. is advocacy successfully
led to the promulgation of a comprehensive law on transitional
justice, whi was facilitated by the apparent convergence of
political and popular will.
The intersection of political and popular will
In order to succeed, transitional justice processes must emanate from
and respond to societal needs but, at the same time, they also depend
upon political will. e absence of any of these factors will lead to
an incomplete process. Civil society truth-seeking initiatives are
meant to push politicians and governments to establish transitional
851
justice processes, as without these processes civil society initiatives
are unlikely to have any practical impact. On the other hand, if
governments try to impose transitional justice processes unilaterally
when society is not ready, the processes will fail and result in
‘ignored’ reports by skeptical citizens. Tunisia does not escape this
rule. However, post revolution Tunisia is a very polarized society.
Polarization (Islamists/secular) is reflected in all fields and civil
society reflects this reality. Over the sixty-plus years of oppression,
both dictators privileged a secular and liberal elite over other
categories of persons, persecuting in particular Islamists and leists.
However, both Islamists and secular organizations worked for the
establishment of a comprehensive transitional justice policy
supporting and supported by victims groups. Consequently, their
sustained, though divided, efforts led to the birth of a political will to
respond to the peoples’ demands for truth, justice, reform, and
guarantees of accountability and non-repetition. In a general
atmosphere of thirst and desire to know the truth about the
dictatorship’s apparatus, the NCA deputies inserted into the law
whi governs temporary political powers (known as the small
constitution) Article 24, whi stipulates that: “e National
Constituent Assembly must enact an organic law regulating
transitional justice, establishing its boundaries and remit.” It
translated a real awareness of the importance of transitional justice
as a way to rebuild citizens’ trust in their State institutions. e
establishment of a Ministry of Human Rights and Transitional
Justice led by Mr. Samir Dilou strengthened this positive step.15 e
creation of the Ministry was strongly criticized by civil society,
especially secular organizations, as they considered it as an aempt
to dominate and control the process in order to favor victims
according to their political allegiance. Conscious of this criticism, the
Minister declared that his ministry was created just to facilitate the
work of launing a national consultation on transitional justice.
is led, aer numerous meetings, to the creation of a tenical
852
commiee tasked with the supervision of a national dialogue on
transitional justice and with draing the organic law required by
Article 24 of the small constitution.
e process was indeed positively inclusive, despite the
continuous critiques based on ideological bagrounds. e tenical
commiee was composed of twelve members including two
representatives of five leading civil society organizations,16 and two
officials from the ministry. Based on a participatory approa, and in
order to create public ownership of the process and the future law,
Tunisia was divided into six provinces. Regional consultations were
then held in ea province in an aempt to include victims from all
phases of dictatorial rule since Tunisia’s independence in 1956. A
questionnaire was distributed to participants (ranging from activists
to victims) in order to grasp their vision of transitional justice and to
try to reflect this vision in a wrien legal piece. e questionnaire
and the regional consultations focused on the pillars of transitional
justice (truth seeking, accountability, reparations, institutional
reform and reconciliation) and provided details pertaining to the
period of the Truth Commission’s mandate. is process led to the
draing of a comprehensive transitional justice law, whi also
reflected the national context.
A comprehensive law on transitional justice
e tenical commiee and civil society organizations were
aracted to the idea of creating a truth commission based on best
practices from comparative experiences. A truth commission was,
for many people, the fulfillment of their expectations. However,
transitional justice is not only about truth seeking and final reports
full of recommendations that governments can easily ignore.
Transitional justice
853
refers to the set of judicial and non-judicial measures that have been implemented by
different countries in order to redress the legacies of massive human rights abuses.
ese measures include criminal prosecutions, truth commissions, reparations
programs, and various kinds of institutional reforms.17
It is a building based on a prerequisite number of pillars. In the case
that one of the pillars is laing, the whole building will be
imperfect. In addition, in a society aracterized by corruption,
oppression and a la of freedoms, especially freedom of expression
and of religious belief, participants in the national consultation were
asking for a comprehensive transitional justice process without even
having a fundamental understanding of the concept. On the other
hand, the formulation of Article 24 of the small constitution
encouraged the tenical commiee not to waste the opportunity to
create an organic law that would be the ‘constitution’ of transitional
justice, protecting the rights of victims in case political will
diminishes or anges aer the elections. Additionally, the tenical
commiee decided to dra a law responding to the demands of
Tunisians relating to economic and social rights.
Under the dictatorship numerous regions were marginalized and
unemployment and bad working conditions pushed many people to
take a stand and to defy the government. us, the dra law
prepared by the tenical commiee was based on a holistic
approa to transitional justice. It is in reality a truth commission
law, as more than forty articles of the seventy-article-law were
devoted to a Truth and Dignity Commission. Still, the first part of
the law was dedicated to the principles of transitional justice (truth
telling, accountability, institutional reform, and reconciliation).
Under this law, truth is a right,18 and justice is ensured by
specialized ambers designed to respond to the fears of citizens
who distrust the current judicial system. e law also provides for
the creation of a Fund for the Dignity and Rehabilitation of Victims
of Tyranny and a veing commiee, whi would have powers only
to present recommendations to remove allegedly corrupt senior
854
officials. Furthermore, one of the innovations of the law is that
marginalized regions can also be considered victims where the
marginalization was proven to be intentional.
e law is a significant aievement, especially given that other
countries in the region (Libya, Egypt, and Yemen) remain stu at
the legislative stage. It is not perfect, but it is ambitious. It continues
to be criticized for what I would call legal imperfections or mistakes,
especially by secular organizations. is criticism is the result of an
overly legalistic approa to transitional justice. e process has
been dominated by lawyers, whi has had several implications. e
law is exclusively interpreted on the bases of legal implementation
and compliance with domestic laws. is overly legal vision of
transitional justice has influenced even non-lawyers’ views on the
subject. Readers of the law tend to disregard the sociological and
anthropological effects of transitional justice. e laer cannot be
the strict implementation of exact and flat rules. Su a law has a
soul; the quality of the members of the truth commission, the
determinations of civil society, the commitment of victims and
politicians will all determine the success of any process.
855
Part II the start of the process, or a false
start?
e basic law regarding the establishment and regulation of
transitional justice, Law n°53, was passed in December 2013. is
triggered by the start of a transitional justice process that, despite
initial high hopes, has ended up creating a weak Truth and Dignity
Commission (Section I), delaying accountability efforts through the
creation of specialized ambers that are more phantom than real
(Section II) and, most damagingly, insulated transitional justice
processes from underlying political context (Section III).
Section I a weak truth commission laing public
ownership and trust
Only 10 days aer the promulgation of Law n°53, a commiee was
created within the National Constituent Assembly (NCA) to
coordinate the process of nominating commissioners. A general call
for nominations was issued, with a short deadline of only 15 days in
whi to receive applications. Concerned about the consequences of
su a short nomination period, local civil society and international
organizations criticized the decision and advocated for a longer
period in order to guarantee the nomination of good candidates and
to rea people outside the capital. ey were concerned especially
that some of the required documents for nomination would take
more than 15 days to obtain.
Indeed, nominating commissioners is a crucial phase in any
transitional justice process, as it has important implications for the
rest of the process. Besides its influence on the commission’s work
and efficiency, the nominations process has a huge impact on public
perception of the commission. us, a nominations process has to be
856
both transparent and participative. Unfortunately, the Tunisian
nominations process did not follow best practices, leading to several
negative consequences. e Tunisian selection commiee, with the
support of its president, decided to work in total obscurity. Civil
society organizations, unlike in the legislative process, were not
involved and even actively excluded. Leaders of different Tunisian
organizations tried to approa commiee deputies in order to
provide them with recommendations on how to vet received files,
and how to prepare selections arts for short-listing candidates.
ese recommendations were tenically accepted, however no one
is certain if they were implemented, as the Selection Commiee
procedures remained secret. Similar efforts were made international
organizations that found themselves organizing tenical expertise
sessions outside the NCA because the commiee president refused
any interference in the process.
ree hundred and eighty nominations were received and all files
underwent a veing process by the Ministry of Interior. Further,
both the Association and the Syndicate of judges were involved in
the process, examining any nominations by judges. is was heavily
criticized by CSOs as it accorded exceptional treatment to these two
civil society organizations. e veing process resulted in 288 names
published on the NCA website without any communication strategy
and with the continuous exclusion of CSOs, whi led them to
boyco the process of sending objections about ‘unsuitable
candidates.’ e selection commiee was unconcerned by the
absence of CSO input and interpreted their silence as a green light to
continue the selection process. One week later, a list of 15 names was
published on the NCA website ignoring basic communication
principles; without even a simple communiqué informing citizens in
order to involve them in the process. Seven candidates were
allenged by CSOs. However, the NCA kept all the candidates and
rejected all objections.19 e selection process deepened the division
between CSOs20 as some of them decided to boyco what they
857
considered to be a politicized TDC, while others opted for openness
towards the commission, giving it a ance and providing advice to
its members.
Despite the initial efforts to make it a participatory process,
transitional justice was turned into an elite topic, discussed by
people of a very particular age and class, by some CSOs and, of
course by victims. e selection process, being very exclusive,
worsened the situation by failing to involve the whole society in a
meaningful national experience. e truth commission, besides
trying to reveal the truth, will have to manage the rehabilitation of
victims and the recognition of their suffering, as well as the
anowledgment of the truth itself. It is important that non-victims
are also involved in the process, lest the exercise becomes a
unilateral one.
In June 2014, the TDC started officially. It had 6 months to dra its
by-laws, establish executive management, develop a work plan for
its entire term, develop a work program for a period of at least one
year, manuals of procedures, a comprehensive communication
strategy, and a database.21 However, in December 2014, during the
official laun of the receipt of victim’s files, the TDC’s 13
members22 presented an imperfect dra of the bylaws. ese were
limited to creating different commissions based on thematic issues,
without any clear meanisms for cooperation or coordination. e
most positive aspect of the bylaws was the creation of a women’s
commiee23 with the task of “ensuring the implementation of the
gender perspective approa in the application of transitional justice
Law.”24 Further, the commission, still troubled by the poorly run
nominations process and the different ideologies of its
commissioners, failed to build a cooperative and consultative
relationship with CSOs and the media. e TDC continued to work
in an exclusive way, based on a personal interpretation of
relationships, with lile or no aempt to overcome these difficulties.
e commissioners proved to be a reflection of the biases of the
858
Selection Commiee and the political parties of the NCA. us, they
failed to build a team and, more than one year aer its creation, la
of trust between commissioners and a failure to prioritize public
over private interests has le the TDC unable to make daily
decisions without resorting to voting. It took one whole year for the
TDC to start taking statements from victims,, and when it did start it
did so without a planned resear strategy or a plan for how to use
the collected data. Even now, with over 15,000 received complaints
from victims, the TDC does not have an executive director, nor a
communications strategy, and has failed to present any concrete
deliverables or to transfer any cases to the specialized judicial
ambers.
Section II the specialized ambers, or phantom courts
e accountability process in Tunisia is a limping one. As noted in
the first part of this apter, the first aempt at transitional justice
came from military tribunals and mainly concerned the cases of the
martyrs and wounded of the revolution. Aer this first aempt to
pursue justice, additional efforts were added via the creation of
specialized ambers within the courts of appeal in order to
adjudicate cases related to gross human rights violations.25 Article 8
of the transitional justice law raises diverse issues related to its
implementation and enforcement. In fact, the creation of specialized
courts was meant to avoid the need to resort to the existing judicial
system.26 e laer was always considered to be one of the tools
used by the dictatorship to harass and imprison opponents, and it
has not been reformed since the revolution.
Deputies responded to victims’ calls to avoid the use of corrupt
judges by creating specialized ambers, but they failed to clarify the
way in whi these ambers would be implemented. Indeed, the
law did not mention whether the TDC has the exclusive capacity to
859
transfer cases to the ambers or whether victims could have direct
access to them. Additionally, it is not clear whether the courts would
respect the double jurisdiction of appeal courts and, in case appeal is
feasible, whether the appeal courts would also be specialized.
Adding to these functional problems, Law n°53 Article 8 lists human
rights violations and crimes that do not exist in the Tunisian penal
code (ex: forced migration for political reasons). Some of the listed
crimes, notably that of electoral fraud, also created controversy as it
was believed at the time that they were added just to target Beji
Caied Essebsi, the president of the new political party Nidaa
Tounes.27 Further, the selection of judges “who have never
participated in trials of a political nature, and who will receive
special training in the field of transitional justice”28 is also
problematic. Especially given that many su judges would have sat
in on political trials, but simply not taken part in the decision itself.
Finally, judges decide, in general, on the basis of a file prepared by
special investigators and presented by the prosecutor. is means
that responsibility for unfair trials cannot be borne by judges alone
but also by police, investigators and prosecutors. Hence the
importance of creating a whole specialized penal ain to deal with
past human rights violations. In an effort to overcome and respond
to these concerns about the applicability of Article 8, the Ministry of
Justice, Human Rights and Transitional Justice, only a few months
aer the promulgation of the transitional justice law, established a
special commiee to reflect upon the best way to apply Article 8.29
e commiee, comprised mainly of lawyers, judges and
representatives of CSOs, prepared and submied to the minister a
comprehensive report containing proposals to address these issues.
e commiee’s recommendations stressed the creation of criminal
and misdemeanor ambers but le the issue of appeal open to
interpretation, especially since most of the members of the
commiee considered appeal to be automatic, as guaranteed by the
new constitution. e report did not have any significant impact, as
860
the Minister and the Head of the government published Decree Law
n°2887 in August 2014 creating eight specialized ambers30 out of 12
courts of first instance. It is true that victims and civil society
organizations were delighted by the prompt creation of these
ambers, especially given that people were expecting the creation
of su ambers prior to the start of the TDC’s work so that they
would be ready to receive files. Nevertheless, the specialized
ambers are still lile more than ink on paper.
Indeed, what I would call the ‘phantom courts’ have to date not
really been established. While they have generated a considerable
number of reports, and coordinated events, conferences and
workshops to sensitize victims, train lawyers, inform the selection of
judges etc., there has been a notable la of will to implement their
judicial mandate to hear cases, especially aer the parliamentary
and presidential elections of 2014. Indeed, the government,
represented in this case by the Minister of Justice, did not express a
clear position in relation to the ambers. e Temporary Authority
of Magistrates expressed several times its concerns over the
practicability of su a project, especially given the small number of
judges in Tunisia compared to vast amount of demands and
complaints. e Authority considered that even if they could find the
judges to sit in these ambers, they would not be able to provide
the possibility of appeal or cassation. One year aer the publication
of the decree, military courts are still judging cases of martyrs and
wounded of the revolution and specialized ambers are but still
lines on paper.
Unfortunately, the second (justice) pillar of the Tunisian
transitional justice experience is falling into obscurity. It is drowning
in a national context focused almost exclusively on economic issues
and counterterrorism, with a TDC that has failed to present any
deliverables or produce any files that might be used by victims to
advocate for the real creation of special ambers. is situation
demonstrates once again that transitional justice is not only a maer
861
of policy-making and legislating, but is a concept that depends on its
environment, and the political context and framework it is moving
within.
Section III transitional justice must function in a state
of continuous osmosis with its environment
Transitional justice is a dynamic process that involves multiple
elements and protagonists. On the one hand, it results from the need
to address the past ills of repressive governments and police states.
On the other hand, it can be applied to improve the lives of some
people in the future. Transitional justice is a kind of catalyst for
ange, but its success depends on its context and ea of its
constituent ingredients.
Unfortunately, the Tunisian process has, since the beginning,
failed to take account of su basic ingredients. e first consultative
and legislative phase took into consideration the importance of a
participatory approa that would facilitate the involvement of civil
society organizations and foster public ownership, but it ignored the
element of ‘time.’ Indeed, while the Ministry of Human Rights and
Transitional Justice respected the time frame they had dedicated to
the consultation and draing process (six months), the National
Constituent Assembly ignored it, leaving the dra law they had
received in the assembly drawers because deputies were not aware
of the importance of su a law in facilitating Tunisia’s democratic
transition. e deputies of the ruling parties prioritized the dra law
on the immunization of the revolution with the objective of
excluding probable political opponents from the upcoming elections.
Luily, the transitional justice law survived two of the biggest
political crises in post-revolution Tunisia: the assassination of Chokri
Belaid (a leist political opponent) and Deputy Mohamed Brahmi,
who was assassinated on Republic Day.31 e law was submied in
862
November 2012 to the NCA and was only passed in December 2013,
days before the promulgation of the constitution of the second
Republic. is delay, complicated further by the ‘la of awareness’
or even the ‘premeditation’ of deputies, threatened the
implementation and realization of the transitional justice process.
e appointment of truth commissioners has also been fraught
with problems. e appointments were not based on the public
interest, but on the interests of political parties who wished to reveal
certain elements of the truth and obscure others. e selection
process did not help create public ownership of the commission and
its work, nor create harmony within the commission itself. If
efficiency and appropriate qualifications were the key requirements
in the nomination process, then the TDC’s failings have allowed the
current government, whi is very hostile to transitional justice, to
heavily criticize the commission. e presidential and parliamentary
elections of late 2014 produced a new majority led by the secular
party, Nidaa Tounes. Nidaa Tounes has always been hostile towards
efforts to deal with the past, as it is comprised of many former
members of the Democratic Constituent Rally—the party of former
dictator Ben Ali. It considers any efforts at truth telling or
accountability as revenge, not justice. Further, the leader of the party
and current President of the Republic, Beji Caied Essebsi, is allegedly
involved in cases of human rights violations. Since the electoral
campaign, and even before it, Nidaa Tounes has played the card of
national and societal reconciliation to convince people that Tunisia
has to move forward to face and overcome its transition and its
economic crisis, and not dwell in the past.
Regreably, the TDC did not take any precautions against su a
ange in political will, oosing to focus on small internal
problems, delaying its actual work and so assisting those who seek
to criticize transitional justice efforts. In celebrating Independence
Day, the President of the Republic announced an initiative aimed at
reconciliation with corrupt businessmen in order to boost the
863
economy and create jobs for youth, who were struggling to realize
their economic and social rights post revolution. e initiative
remained mysterious even though people knew it was a mask for
amnesty. In July 2015, a dra law (amending Law n°53) was
submied to the Chamber of People’s Representatives whi aimed
to create an arbitration commiee to hear cases of corruption
involving businessmen, and to grant amnesty to senior public
officials involved in corruption. e dra law, well covered by the
media, has had one positive effect: re-unifying civil society aer the
fracture created different aitudes towards the TDC. Conferences
and advocacy initiatives were launed stressing the importance of
truth telling and accountability as guarantees of non-recurrence.
Responses came also from the TDC, but its weak position and failure
to deliver justice did lile to enhance its voice.
is dra law is an aempt to destroy the transitional justice
process, including its aention to economic and financial grievances,
despite the fact that su grievances were a principal motivation of
Tunisia’s revolutionaries. If the law passes, it may become a turning
point towards further amnesty for Ministry of Interior officials
involved in torture and killing. An amnesty for Ministry of Interior
officials on the grounds that Tunisia must focus instead on
responding to terrorism and security threats is already being used to
oppose and neutralize human rights activists.
864
Conclusion
Four years aer the Tunisian revolution, the country, while aspiring
to set an example for the rest of the Arab world, is not progressing.
Nonetheless, it remains a ri source of lessons and experience that
can guide our neighbors—especially regarding pitfalls to be avoided.
Indeed, we learned that participatory and inclusive approaes, a
strong civil society and the existence of political will, commonly
believed to be the main ingredients of the transitional justice recipe,
do not necessarily guarantee a successful process. Countries
undergoing transition aer decades of dictatorship and pervasive
corruption are very fragile. When applying commonly held rules to
su a situation, it is necessary to always take into consideration the
instability of the political situation and bear in mind that transitional
justice is a catalyst for ange but it is also an easily influenced
process. Revealing the truth is not an easy task and there are many
different obstacles that must be overcome. Tunisia is now going
through its most difficult period since the revolution: the re-
emergence of many personalities and practices of the previous
regime. Despite an arsenal of new legislation that respects and
defends human rights in theory, human rights violations are
increasing under the pretext of combaing terrorism and ensuring
security.
e revolution became lost in polemics, ideological differences
and partisan political interests, neglecting its main objectives of
employment, freedom, and national dignity. e economic
reconciliation measures proposed by the current President of the
Republic reflect the failure of the State to provide solutions to
widespread unemployment. Similarly, it also reflects the absence of a
long-term economic recovery program and the government’s
865
tendency to resort to easy short-term solutions. Finally, the
reconciliation measures are a blow to the revolution as a whole, as
they support a mentality and culture of impunity amongst the
political and economic elite, and do great harm to the principal of
equality for all citizens before the law. If the situation continues to
worsen, a new revolution can be expected.
e Tunisian experience shows that time is a crucial component
for the implementation of a transitional justice process.
Governments in transition must balance participatory and inclusive
processes, allowing for grassroots participation, and the instability of
situations during transition. Even if a revolution cuts off the head of
the dictatorship, people need to be aware that the deep state will
remain, distorting potential progress. For instance, it is very difficult
to implement long and comprehensive transitional justice processes
while institutions like the judiciary or the police remain unreformed.
In the Tunisian case, because reform has not been comprehensive,
certain entities of the state, su as the police and the Ministry of
Interior, have turned ba into tools of repression, instead of citizen’s
protection. e war against terrorism has provided a convenient
justification for this reversion and the human rights violations that
have ensued. Furthermore, when Tunisia does undertake transitional
justice measures, su as the creation of specialized ambers to
diminish the influence of non-independent judiciaries, it neglects
how urgency is as an essential factor, preferring to go through
consultations whi delay the ambers’ actual establishment.
ere is no doubt that, despite a strong start, transitional justice is
in a weak position in Tunisia. at civil society and victims groups
are still defending Tunisia’s limping transitional justice processes,
however, shows that Tunisia remains the last hope for a positive
example for the rest of MENA’s transitional countries, whi are
undergoing even more violent and extreme balashes. Despite this
current weak position, in the long term there remains reason for
belief in the capacity of Tunisian youth to effect positive ange, as
866
they have done before. ey started the revolution, and remain the
shield that can ensure its future.
867
Notes
1 Particular thanks to Hugh Pennicook, Salwa El Gantri and Emna Sammari for their
assistance and support for the writing of this paper.
2 ese views are personal and do not necessarily reflect those of the International Center
for Transitional Justice (ICTJ).
3 Different uprisings and protests took place mainly in winter. Ex: the “Bread uprising”
(December 1983 and January 1984); Gafsa mining protests (started in January 2008).
4 Description given in the Report of the Special Rapporteur on the promotion of truth,
justice, reparations and guarantees of non-recurrence, Pablo De Grieff on his mission to
Tunisia from 11 to 16 November 2012.
5 Decree Law n°8 of 2011 dated 18 February 2011.
6 Decree Law n°7 of 2011 dated on 18 February 2011.
7 Ben Ali’s last spee on 13 January 2011.
8 Decree Law n°15 of 2011 dated on 26 Mar 2011.
9 According to Article 22 of Law n°70 of 1982, military courts have competency over cases
that involve agents of the internal security forces, or that involve fact paerns
concerning the performance of their duties in relation to the internal or external
security of the State.
10 e army refused to aa the demonstrators and played a neutral role.
11 Decree Law n°2011–69 dated 29 July 2011 amending the military justice law of 1957.
12 Article 1 of Decree Law n°1 of 2011 dated on 19 February 2011.
13 As amended by law n°26 of 2012 dated on 24 December 2012.
14 e Transitional Justice in Tunisia, e Absence of a Clear Strategy and the
Predominance of Improvisation, Pr. Wahid Ferii with the participation of Maroua
868
Belgacem, Emna Sammari, Ahmed Aloui and Nacer Harzallah. e Arab Institute for
Human Rights, Tunis 2012.
15 An Islamist lawyer and former political prisoner.
16 e National Independent Coordination of Transitional Justice, the Tunisian Network of
Transitional Justice, Kawakibi Center for Democratic Transitions, Tunis Center for
Transitional Justice, and Tunis Center for Human Rights and Transitional Justice.
17 Official definition adopted by the International Center for Transitional Justice.
18 United Nations High Commissioner for Human Rights, Human Rights Resolution
2005/66, “Right to the Truth,” April 20, 2005, E/CN.4/RES/2005/66. See preamble.
19 According to Article 25 of Law n°53, “e decisions of the commiee on the objections
shall be final and cannot be reviewed or appealed by any means even in claim of abuse
of power.”
20 CSOs in Tunisia are divided according to their ideology (secular and Islamist). is
division has influenced the process since the start; especially given most of the victims
were Islamists.
21 See Article 56 of Law n°53 dated December 24, 2013, “Establishing and Organizing
Transitional Justice.”
22 ree commissioners resigned. Two of them resigned because they could not fit within
the team and work with the President, while the first one resigned for health reasons
and was replaced with the same methods based on opacity and exclusiveness.
23 A Women Commiee instead of a ‘Gender Commiee’ for cultural issues, as some male
commissioners were not open to the use of the terminology ‘gender’ considering it
opposite to the pillars of Islam.
24 Article 67 of the Decision n°1 of the Truth and Dignity Commission dated on November
22, 2014 pertaining to the Bylaws of the Truth and Dignity Commission.
25 See Article 8 of Law n°53 dated December 24, 2013, “Establishing and Organizing
Transitional Justice.”
26 See Joint Report Between the General Legislation Commiee And the Rights, Freedoms
and Foreign Relations Commiee On e Dra Organic Law on the Regulation of
869
Transitional Justice, its Foundations and its Area of Competence (No. 12/2013) And the
Proposal of an Organic Law on Transitional Justice (No. 47/2012) Report of the General
Legislation commiee, August 2013.
27 Beji Caied Essebsi, current President of the Republic, and first Interim Prime Minister
aer the revolution, admied in an interview that all elections before the revolution
were conducted fraudulently and that he managed fraudulent elections because it was
normal during the dictatorship.
28 Article 8 of Law n°53.
29 Decision of the Minister of Justice, Human Rights, and Transitional Justice, dated Mar
28, 2014, providing for the establishment of a Reflection and Deliberation Commiee on
the best ways to apply the provisions of Article 8 of Law 53.
30 e decree forgot one of the biggest towns in Tunisia Sfax, but it was corrected a month
later by another decree.
31 Aer the second assassination, the people, pushed by opposition political parties,
gathered in Bardo to request the dissolution of the NCA. A quartet composed of four
big national organizations (the Tunisian League of Defense of Human Rights, the
Tunisian Bar Association, e Employees Union (UGTT), the employer union (UTICA))
initiated a national dialogue in order to find a solution to the national crisis. e quartet
suggested a roadmap with objectives to be realized (including the promulgation of the
constitution and the establishment of a High Authority for Elections). Transitional
justice was no longer a priority despite the advocacy work done by CSOs and baed by
the international community. Transitional justice became a priority aer the web
publication of the Bla Book by the Presidency of the Republic, whi used state
arives to reveal names of journalists and others who were supported by, or were
involved in corrupt activities in cooperation with, the previous regime. e book
succeeded in pushing the NCA to pass the transitional justice law aer a delay of about
ten days.
870
Selected Bibliography
Aguilar, G. and Gomez, F. eds. Rethinking Transitions, Equality and
Social Justice in Societies Emerging from Conflict, Series on
Transitional Justice. Portland, OR: Intersentia, 2011.
Ferii, Pr. W.. The Transitional Justice in Tunisia: The Absence of
a Clear Strategy and the Predominance of Improvisation. Tunis:
e Arab Institute for Human Rights, 2012.
Fisher, K. and Stewart, R. eds. Transitional Justice and the Arab
Spring. London: Routledge, 2014.
McAuliffe, P. Transitional Justice and Rule of Law Reconstruction, A
Contentious Relationship. London: Routledge, 2013.
Roht-Arriaza, N. and Mariezcurrena, J. eds. Transitional Justice in
the Twenty-First Century, Beyond Truth versus Justice.
Cambridge: Cambridge University Press, 2006.
Sammari, E. Transitional Justice in Tunisia, Truth Seeking, esis in
Partial Fulfillment of the Requirements for Master Degree in
Common Law, Academic Year 2011–2012.
UNHCHR, Human Rights Resolution 2005/66, “Right to the truth,”
April 20, 2005, E/CN.4/RES/2005/66.
UNHRC, (2013) Report of the Special Rapporteur on the promotion
of truth, justice, reparation and guarantees of non-recurrence,
Pablo de Greiff Addendum Mission to Tunisia (November 11–16,
2012), July 30, 2013. Available at
www.ohr.org/EN/HRBodies/HRC/RegularSessions/Session24/
Documents/A-HRC-24-42-Add1_en.pdf (accessed September 4,
2016).
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26 e Impact of Impunity on Violating Cultural Rights in Morocco
Osire Glacier
872
Introduction
is apter argues that in Morocco, and in North Africa and the Middle East generally, power structures in place rather than cultural determinism produce the human rights violations prevalent in those regions. Of course, few would be surprised to learn that Morocco ranks among the world’s worst nations in terms of its human rights
record.1 In fact, the commonplace abuses commied by the Moroccan state against its citizens reinforce popular beliefs that equate Arab-Muslim nations with authoritarianism. e unbridled violation of human rights is essential to authoritarian regimes aer all. is reality has led some solars to argue that Arab-Muslim culture is intrinsically authoritarian and, therefore, incompatible
with democratic values.2 Others have gone as far as to divide the globe into two opposed camps: a despotic East and a democratic
West.3
Historical narratives about the development of human rights over time perpetuate a similar discourse. In fact, mu of the current academic literature suggests that human rights originated in
Europe.4 According to one version of this largely Eurocentric perspective, civil and political rights, as recognized by the Universal
Declaration of Human Rights5 and by the International Covenant on Civil and Political Rights, were first articulated in the Magna Carta, a treaty made between King John of England and English Lords in 1215 anowledging the right of powerful aristocrats to individual liberty and to freedom from arbitrary arrest and abusive taxation. Similarly, according to others, the social upheavals caused by the nineteenth-century industrial revolution in Europe produced the economic, social, and cultural rights later seen in the Universal
873
Declaration and in the International Covenant on Economic, Social, and Cultural Rights.
e Eurocentric approaes to the history of fundamental rights discussed above are also orientalist in nature. I define Orientalism as a hegemonic method of perceiving Otherness and of creating a hierary based on the other’s proximity, or inversely, the Other’s
distance from European values and institutions.6 By adopting a European identity as the standard for all of humanity, Orientalism defines alterity according to a European norm, or more precisely an idealized European norm. In other words, Orientalism implies that the East is as despotic as the West is democratic. Similarly, the East is deemed as patriaral or misogynistic as the West is liberal, or a great defender of the principle of gender equality.
Approaing the history of fundamental rights from a Eurocentric and orientalist perspective has three serious consequences. First, it would seem as if no history exists but European history. Even Marx, whose philosophy has inspired a number of non-Western revolutionaries, believed that Eastern societies were static, and consequently that the East’s only hope at aieving modernity was
through European colonization.7 Second, the world history’s key events are perceived as exclusively European in nature. Human rights history along with, the history of the industrial revolution, the market economy, market values, and individualism begin almost exclusively in Europe. ird, in an aempt at political correctness, some solars will even question whether fundamental rights are at
all applicable in non-European societies.8 Others propose disassociating the legitimacy and acceptance of fundamental rights from their alleged European origins: though human rights are believed to be Western, they could be valuable tools for non-Western
societies as well.9
However, increasingly, west-centered history is being called into question. Several academics, for instance, have deconstructed the
assumption that no history exists but European history.10 ey have
874
demonstrated that the region studied here experienced modernity and the social upheavals it oen brings—industrialization, accelerated urbanization, the rise of a market economy, the dislocation of traditional solidarity, the penetration of the private and public spheres by market values, and the destabilization of traditional gender roles—in its own way, although mu later than Europe. is kind of revisionist approa to the history of fundamental rights has given a greater voice to the local populations of North Africa and the Middle East by enabling them to rewrite their histories from non-European points of view.
Recent resear in the field has further destabilized the Eurocentrism that pervades many historical narratives of fundamental rights. Indeed, in celebration of the Universal Declaration’s anniversary, political scientist Johannes Morsink, law expert Mary Ann Glendon, and historian Paul Gordon Lauren rewrote the history of the Universal Declaration in consultation with
the United Nations arives.11 ese researers revealed that small states, some more than others, participated in the development of the Universal Declaration. e resear of Morsink, Glendon, and Lauren turned the aention of solars to the presence of states representing non-European civilizations in the international project of protecting human rights.
Political scientist Susan Waltz later built upon the resear of Morsink, Glendon, and Lauren. She examined the United Nations arives documenting the development of the International Charter of Human Rights (i.e. the Universal Declaration, the International Covenant on Civil and Political Rights, and the International
Covenant on Economic, Social, and Cultural Rights).12 Waltz showed how there is lile historical support for the widespread belief that the great powers, following their victory in the Second World War, conceived the international project of universal rights and were its
ardent defenders.13 Her work also undermined the widely held assumption that small states played no role in the project at all or, at
875
the very least, a passive one.14 In an article concerned with Muslim states exclusively, Waltz went even further by relating the contributions of Muslim delegates to the International Charter of
Human Rights.15 She cited, for example, Article 3 of both Covenants. Proposed by Iraqi delegate Bedia Afnan, the articles require Member
States to ensure equal rights for women and men.16 More recently, human rights expert Steven Jensen has confirmed the varied and widespread origins of human rights by documenting the pivotal role played by the Global South in the development of universal rights
during the era of the Cold War.17
For our purposes, the impact of this historic resear is twofold. It suggests the origins of human rights also lie in the history of North Africa and the Middle East, even if this history is not well known. e imbalance between the la of knowledge on the history of human rights in these regions and the preeminence granted to European history explains why a certain essentialism still exists in solarship on human rights. As a result, the West continues to be associated with progressive values like democracy, human rights, and the principle of gender equality. North Africa and the Middle East, on the contrary, are monolithically associated with a bawardness manifested in cultural stasis, acceptance of human rights violations, and women’s supposedly inherently inferior status in society. Lawyer Makau Mutua neatly summarizes this essentialism. He deplores the fact that real discourse about fundamental rights is oen reduced to the metaphor of savage- victim-savior, where the savages—and the victims—are non-Western states, and the corpus of fundamental rights are the savior, with the United Nations, Western governments, international NGOs and
other Western aritable institutions playing primary roles.18 In other words, according to this essentialist perspective, one must either be Western or ‘Westernized’ to adhere to human rights values.
is apter deconstructs certain aspects of this essentialism. Employing Morocco as a case study, I will demonstrate how the
876
immobilism (i.e. extreme conservatism and opposition to ange) associated with this country in particular, and with North Africa and the Middle East in general, results not from cultural defect. Rather, politics produce this perceived resistance to ange. Part one examines how Morocco’s ruling elite has pursued a policy of illiteracy, and deprived citizens of access to knowledge and education since Independence in 1956. ese serious aas on learning have not stopped activists, intellectuals, artists, and ordinary citizens from allenging the status quo. Politically conscious citizens continue to labor for the advent of a state that respects human rights. As explained in part two, however, the ruling elite works against these activities to prohibit the development of a human rights culture in the country. Because of the impunity granted to those who violate human rights, the elite has been mostly successful in preventing citizens from inscribing their culture within contemporary ideological currents. In part three, the role played by impunity in manufacturing cultural immobilism in Morocco is exposed.
877
Official culture: a political product
Let us begin with two foreign women’s impressions of their time spent in Morocco. e first, Scoish teaer Mary Hubbard, traveled to Morocco on her own despite being warned not to by friends and family:
I knew that there were likely to be difficulties in travelling as a woman alone around Morocco. I’d been warned by numerous sources about hustling and harassment and I was already well aware of the constraints imposed upon women travellers within
Islamic cultures.19
Upon arrival, Hubbard confronted the difficulties that women traveling alone in Morocco are oen faced with:
It was not until I emerged the next morning into the bright daylight of Casablanca that I experienced my first reaction to Morocco.
Nothing could have prepared me for it. Almost instantly I was assailed by a barrage of “Would you like to have sex with me … Have you ever had sex in Morocco … Come with me Madame … come miss.” Whatever I had to say was ignored at will and
wherever I went I felt constantly scrutinized by men.20
e author never spoke of Moroccan or Muslim culture as bawards. Nor did she paint Western culture as superior, at least in terms of women’s treatment in the public sphere. And, to her credit, Hubbard emphasized that she had formed friendships with men during her stay:
at isn’t to say that it’s impossible to have a more relaxed relationship with Moroccan men. I made good friends on two occasions with Arab men and I’m still corresponding with one of them.
e author Sue Benne, however, resorted to diotomies of West/East, North/South, progress/bawardness to describe her sojourn in the country:
878
Sadly the next morning we had to leave our medieval time wrap and return to twentieth-century Spain. Clara needed to go to Tetouan, and offered to give us a li to Ceuta. e drive in her ancient camper van, deed out with voluminous drapes, joss- sti holders and candles, felt like flying. Charlie and I clung on for dear life, as once again I found myself fearing for our lives as we sped through the fantastic gorges and ravines of the Rif Mountains. As we neared Tetouan, Clara slowed down for a donkey laden with bundles, on top of whi sat a fat man. Behind trudged a woman swathed in heavy woven cloth, her face hidden by the traditional hijab. irty kilometers later we returned to the Western world. Southernmost Andalucia seemed extraordinarily
modern.21
In Benne’s account the West is synonymous with modernity, development, and the superior treatment of women, while Morocco appears medieval, under-developed, and a society with retrograde aitudes vis-à-vis women: it forces them to wear the veil and positions them ‘behind’ men. True, rarely do individuals succeed at perceiving others through a value system other than their own. However, being both Moroccan and a woman, I would be lying if I said that Hubbard and Bennet’s descriptions were completely Eurocentric. I would be even more embarrassed to make an argument for cultural relativism here, and aempt to explain su aas on women’s dignity by pointing to some sort of glorious local tradition. I agree with these authors. e harassment of women in public is a retrograde practice. I also agree that the need for women to travel in public with a male companion or, to be frank, a male guardian is well and truly anaronistic and medieval.
Nonetheless, I demonstrate in this apter that su ‘cultural’ issues are not intrinsic to Morocco but, rather, are produced politically. More precisely, they are the direct results of policies pursued by a leading elite who have monopolized the state apparatus, including the justice system. is allows human rights violations to be commied with impunity. More broadly, impunity plays a key role in perpetuating a political status quo that reproduces the cultural immobilism suffered by the country’s citizens. Let me explain this situation step by step.
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First, I should specify that a monary governs Morocco. Indeed, while the Constitution was amended in response to the 2011 Moroccan revolts, King Mohamed VI is still virtually all-powerful. e king is ief of the royal armed forces; presides over the Superior Security Council; holds a quasi-totality of the executive
power; airs the Superior Council of the Judicial Power;22 and
monopolizes human rights policy.23 He also names Morocco’s representatives at international human rights forums, and decides whether Morocco will ratify international treaties protecting human rights or not. In other words, there is no separation of powers in the country. e parliament purportedly represents the will of the citizens, but the king has the authority to dissolve parliament at any time. And, through a strategy of repression, co-optation, and division, the monary successfully keeps the objectives of the majority of Morocco’s main political actors aligned with its own.
In this context of concentrated power, the monary also monopolizes the definitions of culture, traditions and religion in the country (recall that the king is also the Commander of the
Faithful).24 By deploying culture, traditions, and official religion to justify its power, the monarical elite can make violations of cultural rights go unseen. As I will demonstrate, political programs that foster illiteracy, limit access to education and knowledge, suppress human rights culture, and promote political violence like censorship, torture, and arbitrary arrests, are meanisms used to manufacture the cultural immobilism suffered by the Moroccan people.
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Illiteracy and limiting access to education
and knowledge
In his work on Morocco, the anthropologist Paul Rabinow concluded
that the opposite of tradition is not modernity but alienation.25
While formulated differently, the great historian of Morocco
Abdellah Laroui espoused a similar idea.26 Laroui distinguished tradition from deliberate policies of ‘traditionalization.’ e elite employs policies of traditionalization in the form of rhetoric and political programs to determine what is and isn’t considered ‘tradition.’ In contrast, tradition is the osen and conscious acceptance of the past by citizens. is acceptance is only possible when progress coexists with tradition. Or, in other words, when the state institutions allow citizens to oose between progress and tradition, or something else in between. ese institutions must guarantee the access of citizens to contemporary ideological currents, the free circulation of progressive ideas, and the respect of public and individual freedom. In the absence of progress, only unconscious traditions produced by a policy of traditionalization exist. us, it is generally when its ancient privileges are threatened that the ruling monary will recreate, and compel its citizens to behave according to outdated customs. For example, despite being denounced as the symbols of an anaronistic relationship between a master and a servant, royal protocol still requires that individuals bow and kiss the hand of the king. One of the main pillars of this traditionalization policy that helps manufacture cultural immobilism —that is, a political life aracterized by inertia and antipathy to ange—is depriving citizens of access to education and knowledge. Aer the student riots of Mar 23, 1965 King Hassan II made the following announcement in a televised spee:
881
Allow me to tell you that there is no greater danger to the state security than the one
represented by so-called intellectuals. You would have been beer off illiterate.27
Since Hassan II made this point openly, the systematic sabotage of the educational system has methodically followed. It is within this framework of sabotage that the government began Islamizing the educational system near the end of the 1970s. Before we continue, it is important to distinguish Islam from deliberate policies of Islamizing. e sociologist Marnia Lazreg writes that spirituality is an expression of personal faith, while Islamizing policies colonize private and public spaces by perpetuating anaronistic values and behavioral codes. ese are made to appear representative of the national religio-cultural patrimony, even if they have actually been
foreign to the everyday lives of citizens.28 For example, it is through the Islamizing policies of the ruling elite that the official version of Islamic studies became an obligatory discipline at the start of the
1980s.29 Sool manuals convey crude and even degrading images of
women, depicting them as submissive, ignorant and irresponsible.30
Meanwhile, the study of philosophy and sociology is suppressed in
all universities except two.31
It is not the goal of this apter to exhaustively examine the Moroccan educational system. I will briefly mention however, that according to a recent UNESCO report, Morocco is among the worst
countries in the world in terms of education.32 In addition to this educational deficit, teaing methods in Morocco—those employed in public sools in particular—are araic. Based on memorization, these methods promote indoctrination, standardization, dogmatism, and suppress critical thinking. At the same time, translated books are
rare in the country.33 We need only cite the United Nations Development Report Programme to appreciate the scale of the deficit not just in Morocco but across the Arab world in access to knowledge:
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e aggregate total of translated books from Al-Ma`moon era [786–833] to the present day amounts to 10,000 books – equivalent to what Spain translates in a single year. is disparity was revealed in the first half of the 1980s when the average number of books translated per 1 million people in the Arab world during the 5-year period was 4.4 (less than one book for every million Arabs), while in Hungary it was 519, and in Spain
920.34
is startling fact reveals that the majority of Morocco’s citizens do not have access to the latest social, human, and scientific knowledge produced globally.
Some might point out here that Morocco is not a wealthy country. e state las the means for providing a quality education to all of the Kingdom’s ildren. In reality, the problem is not la of means but a la of political will. Morocco spends astronomical sums annually maintaining its army, purasing highly sophisticated military equipment, and financing futuristic intelligence and surveillance services. As one example of this, aer the 2011 revolts as part of its PopCorn project Morocco spent two million US dollars (19.4 million dirhams) on electronic surveillance infrastructure purased from the Fren company Amesys. e computer program enables the government to spy on emails and other forms of Internet
communication throughout the globe35 (on a side note, France considers itself a model of democracy, human rights and progress yet has no qualms selling electronic infrastructure that enables police states to monitor, intimidate, and punish their citizens at will).
e failure of the educational system in Morocco is not a problem of resources. It is a political oice. Children of the elite classes benefit from a quality education in private sools and at foreign universities. However, this privileged class shares socio-economic interests with the ruling elite and, therefore, tends to support the status quo. Outside of this privileged class, the state pursues a policy of illiteracy for a political purpose. People deprived of education and knowledge are limited in how they can analyze and renew their culture and politics.
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Prohibiting a culture of human rights
By depriving citizens of access to education and knowledge, the elite produces cultural immobilism. e anaronistic culture that exists as a result is promoted as the country’s national culture. e elite must therefore prohibit all discourse that could destabilize its control over the definition of culture, traditions, and religion. In fact, today’s culture of human rights is a major threat to the stability of the current regime. e ruling monary adopts a dual strategy to confront this threat. First, it appropriates all policies related to human rights. Second, it represses civil society and activists working in the field. e activities of the Moroccan human rights movement, as well as those of journalists, thinkers, and activists are either
hindered or banned completely.36 In fact, Mohamed VI’s current policies are merely continuations of his predecessors’ policies.
On 18 November 1955, King Mohamed V confirmed the Moroccan state’s adhesion to the Universal Declaration in a spee given in
celebration of the country’s independence.37 In 1962, the preamble to the first Constitution re-confirmed Morocco’s adherence to the United Nations and its arter’s provisions related to the protection
of fundamental rights.38 Later, the constitutional reforms of 1992
introduced the concept of human rights explicitly in the preamble.39
Furthermore, during the World Conference on Human Rights held in
Vienna in 1993,40 Morocco reaffirmed its adherence to human rights
and to the principle of universality.41 With its 2011 reforms, an entire apter of the Moroccan Constitution was dedicated to fundamental
rights and freedoms. Plus, with the exception of a few protocols,42
the Moroccan state has ratified all treaties related to the protection of fundamental rights. Finally, in 2014, the country hosted the World Forum on Human Rights at Marrakesh. Western economic partners
884
and nations praised the Moroccan ruling elite for having initiated
this transition to democracy.43
However, if Morocco appears to espouse a progressive perspective on democracy and human rights, the reality is quite different. Yes, Mohamed V adopted a multiparty system post-Independence. Far from democratic however, Mohamed’s multiparty system enabled
him to “divide and conquer.”44 e popular front was unified, strong and mobilized at the conclusion of the anti-colonial struggle. Under the leadership of the great Istiqlal (Independence) party, various individuals and groups worked together for the implementation of social, economic, and political reforms. By encouraging even the smallest of groups to become independent political parties, Mohamed V succeeded at fragmenting what had previously been a largely unified popular movement. Under these circumstances the king effectively managed to repurpose the goals of his political opponents by associating them with the government, and excluding and punishing the incorruptible among them. For instance, Abdallah Ibrahim’s government was dissolved in 1960 because he aempted to
form a democratic regime.45 Aer Mohamed V’s death, his successor Hassan II adopted a hard-line approa of political ‘annihilation’ through censorship, abduction, torture, arbitrary imprisonment, exile and the assassination of intellectuals and activists struggling to present the people with alternatives to the monary. Leists or activists of the extreme le working for the advent of a socialist regime in Morocco in the 1970s were the ief victims of Hassan’s
policy of political annihilation.46 e Moroccan human rights movement emerged from this highly repressive political context. e Moroccan Association of Human Rights (AMDH), for example, was founded in 1979 following a series of arbitrary arrests and physical aas, and a mass trial indicting hundreds of socialist or Marxist
activists.47
From its founding, the AMDH adopted the principle of universal rights and worked to alter relationships of power between citizens
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and the ruling elite. e AMDH denounces human rights violations in the country, organizes sit-ins and demonstrations, holds conferences aimed at educating, informing, and improving awareness about human rights, and arranges summer camps in an effort to tea youth about the culture of human rights. While these activities and discussions are performed in a peaceful manner, the members of the Moroccan human rights movement in general, and of the AMDH in particular are regularly subjected to harassment. ey are monitored and continue to be subject to arbitrary arrest and to physical aas. e state noose tightened even more aer the Moroccan Spring. Local governments refused to renew the licenses of certain branes of the association in a roundabout aempt to prevent them from operating and, since July 2014, the activities of the AMDH have been systematically banned making it almost impossible for the AMDH to do even basic activities su as
organizing conferences or summer camps for youth.48
In addition to banning the discourse and activities of the Moroccan human rights movement, censorship weighs equally on the works of journalists, thinkers, activists, and artists who have questioned the power structures in place; individuals like Maria Moukrim, Ali Amar, Abou Bakr Jamaï, Ali Anouzla, Maâti Monjib,
and the filmmaker Nabil Ayou.49 Ayou did not aa the ruling elite directly in his censored film Much Loved. Rather, he documented how women’s economic marginalization forces many into prostitution. Ayou’s film was censored because it questioned the traditional gender hierary.
Certain narratives argue that Morocco’s intellectual elite and human rights movement are not representative of the will of the vast majority of Morocco’s population. Of course, activists and intellectual elites are minorities in almost all societies; by stigmatizing their activities and their discourse, the Moroccan state deliberately hinders the spread of human rights culture. e result is that citizens are denied access to fora where it is possible to question
886
the power structures of their country, evolve their culture, and possibly inscribe it with how human rights can inform greater respect for our common dignity. Alas, the manufacturing of cultural immobilism is well and truly a deliberate political program.
887
Impunity: a political oice
Impunity plays a primary role in maintaining the cultural immobilism suffered by the Moroccan people. Indeed, if the justice system were independent, the cultural rights of citizens or, more precisely, the right of citizens to an education, access to knowledge, and to freedom of spee, could be allenged. Morocco has laws, judges, and courts like any seemingly democratic nation. e country even established an Equity and Reconciliation Commission (ERC) in 2004. A close examination of this Commission’s activities reveals mu about the ruling elite’s twofold political game. Generally, reconciliation commissions are founded following a ange in regime. Marking the end of a usually brutal regime, these commissions aim to shed light on the violence perpetrated against citizens in an effort to give them justice, to establish social peace, and to build a unified nation. Morocco’s ERC is different because it was created within a context of regime continuity and was
established by royal decree without jurisdictional authority.50
Morocco’s ERC also distinguishes itself from other equity and reconciliation commissions by its limited mandate at least at two levels. First, the Commission limits itself to violations that occurred
prior to 1999 when Mohamed VI came to power.51 is is odd given that various forms of political violence have been perpetrated since,
especially aer the terrorist aas on Casablanca in 2003.52 Second, this Commission addresses abductions, torture, and arbitrary imprisonment without naming the individuals responsible for the
violence and, therefore, without bringing perpetrators to justice.53
ose who give the order to commit serious violations of human rights, and those who execute those orders, retain their positions and
888
continue to violate the rights of citizens with impunity. In other words, impunity is a political oice.
Morocco established the ERC at the end of the Cold War when
Morocco lost its importance as a strategic ally of Western nations.54
No longer protected from criticisms against its poor human rights record, the ruling elite aempted a series of reforms in the area, including the creation of the ERC. e mission of this commission was thus twofold: it sought to rectify Morocco’s image in the international community, and to address the demands of citizens, but without altering the power structures in place.
Despite the ERC, it is not surprising to see that torture continues to be perpetrated with impunity today. Here are two examples: e leist and February-20th-Movement (M20F) activist, who is also a member of the AMDH, Wafaa Charaf, a young woman aged twenty- six, was abducted, tortured for several hours by strange men, and threatened with future harm if she continued her activities aer her participation in a workers’ demonstration in Tangier in April 2014. Aer her ordeal, she obtained a medical certificate, whi she presented as a complaint to the city’s judicial authorities. is led to Charaf’s subsequent arrest and indictment for slander against the
Moroccan police. Charaf served a two-year sentence.55 A similar verdict was given to Oussama Hosne, a twenty-year old member of the AMDH in Casablanca, and a M20F activist. Hosne was abducted and tortured by unidentified assailants in May 2014 aer he le a demonstration organized in solidarity with political prisoners. In a video posted on YouTube, Hosne claims that his torturers burned his skin with a heated iron rod and raped him with their fingers. e YouTube video led to Hosne’s immediate arrest; he was later sentenced to three years in prison for slander against the Moroccan police despite the fact that Hosne never identified his assailants. At
present, Hosne is being held at Oukaa prison in Casablanca.56
Morocco has ratified the Convention against Torture and its Optional Protocol. In principle, the state should investigate seriously
889
all allegations of torture made by citizens. Instead, the state imprisons citizens who claim to have been tortured. e message is clear: the ruling elite can and will violate human rights, and those who contest su violations will go to prison. In other words, the price of dissidence is publicly fixed. Everyone knows what to expect and citizens consequently feel themselves to be in a state of provisional freedom. ey know they must obey, be silent, and fear— fear the state and its agents, fear the political reality, fear having an opinion, fear expressing themselves, and fear taking initiative in order to stay out of prison. is internalized fear impacts every aspect of the public sphere, including intellectual production, artistic creation, and the establishment of unions as well as professional and political organizations.
890
Conclusion
An analysis of Moroccan politics reveals that the ruling elite has appropriated state institutions. e Constitution codifies the monary’s absolute power rather than safeguarding the rule of law. Instead of dispensing justice in society, the judicial system protects those in power. Impunity pervades the power structures in place at every level. State policies do not promote progress nor the collective well-being of citizens. Rather, these policies ensure that those in power will remain in power. A civilizational defect did not produce the ‘despotic East,’ as most Orientalist literature would have us believe. When su despotism does exist it is, rather, the result of institutional and political failure. If the victors are the ones who write history, then they are also the one who ‘write’ culture, traditions, and official religion. Policies that result in illiteracy and censorship as well as systemic violations of freedom of expression and other forms of political violence reinforce the monopoly of ruling elites to control official culture. In so doing, the victors protect their power at the price of condemning national culture to immobilism.
We should recall that su despotism plagues the international order too. Western nations have appropriated global power structures via the U.N. Indeed, if democracy appears alive and well in the United Nations General Assembly with the adoption of the ‘one country, one vote’ rule, true power remains vested in the Security Council. e Council has five permanent members with the power to adopt military and economic sanctions against other states. With their veto power, these five countries can blo any decision that does not suit them. Yet this despotism is rarely seen for what it is. Similarly, international justice fails in the sense that it grants
891
impunity to the great powers. For example, the United States blithely violated international law when it invaded Iraq in 2003, sanctioned abductions, and practiced torture and degrading treatment on prisoners in Iraq and Guantanamo Bay. No international criminal tribunal has ever judged these crimes against humanity. e abuse of power is neither Eastern nor Western. In fact, it is absolute power that corrupts absolutely.
e analysis presented in this apter has exposed the decisive role cultural rights play in a given country. Yet, within the field of human rights, the exercise of cultural rights is problematic. Current literature pits universal rights and cultural (or religious) rights
against one another.57 Inevitably, the practice of cultural rights appears negative. is apter has aempted to displace this paradigm by turning the negative exercise of cultural rights into a positive one. It is the systemic violation of cultural rights that confuses culture with political productions, traditions with traditionalization politics, and spirituality with official religion and Islamization politics. e exploitation of religion by state elites for example, perpetuates retrograde concepts of power, degrading relations between leaders and the governed, and patriaral interpretations of religious texts. When cultural rights are presented as being incompatible with human rights, rather than accepting this assumption it is, instead, necessary to unpa the political factors producing this supposed incompatibility.
892
Notes
1 World Economic Forum, The Global Gender Gap Report 2014 (le Rapport mondial sur
l`écart entre les genres 2014), 274, last accessed November 15, 2015,
www3.weforum.org/docs/GGGR14/GGGR_CompleteReport_2014.pdf; UNESCO,
Education for all 2000–2015: Achievements and Challenges, 232, last accessed November
15, 2015, hp://unesdoc.unesco.org/images/0023/002322/232205e.pdf; Human Right
Wat, Lonely Servitude, Child Domestic Labor in Morocco (United States of America:
Human Rights Wat, 2012).
2 Hisham Sharabi, Neopatriarchy: A Theory of Distored Change in Arab Society (New
York: Oxford University Press, 1988), 7.
3 Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (New
York: Toustone, 1997).
4 Mieline Ishay, The History of Human Rights, From Ancient Times to the Globalization
Era (Berkeley: University of California Press, 2004), 65.
5 Referred to hereinaer as Universal Declaration.
6 Edward Said, Orientalism (New York: Vintage Books, 1979).
7 Karl Marx, Selections: Karl Marx on Colonialism and Modernization; his Dispatches and
Other Writings on China, India, Mexico, the Middle East and North Africa (Garden City,
NY: Doubleday, 1968), 19.
8 Adamantia Pollis, “A new universalism,” in Human Rights: New Perspectives, New
Realities, eds. Adamantia Pollis and Peter Swab (Boulder: Lynne Rienner, 2000), 10.
9 Ja Donnelly, “Human rights and Asian values: a defence of ‘Western’ universalism,” in
The East Asian Challenge for Human Rights, eds, Joanne Bauer and Daniel Bells
(Cambridge: Cambridge University Press, 1999), 69.
10 Trevor Getz ed., African Voices of the Global Past (Colorado: Westview Press, 2013);
Anour Abdel-Malek, La pensée politique arabe contemporaine (Paris: Seuil, 1970);
893
Elizabeth ompson, Colonial Citizens, Republican Rights, Paternal Privilege, and
Gender in French Syria and Lebanon (New York: Columbia University Press, 2000).
11 Paul Gordon Lauren, The Evolution of International Human Rights, Visions Seen
(Philadelphia: University of Pennsylvania Press, 2003), 199–232; Mary Ann Glendon, A
World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights
(New York: Random House, 2001), xxi; Johannes Morsink, The Universal Declaration of
Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania
Press, 1999), xiv.
12 Susan Waltz, “Universalizing human rights: the role of small states in the construction of
the Universal Declaration of Human Rights,” Human Rights Quarterly 23 (2001): 44–72;
Waltz, “Reclaiming and rebuilding the history of the Universal Declaration of Human
Rights,” Third World Quarterly 23 (2002): 437–48; Waltz, “Human rights standards and
the human rights movement in the global south: the UDHR and beyond,” in Concepts
and Strategies in International Human Rights, ed. George Andreopoulos (New York:
Peter Lang, 2002), 51–71; Waltz, “Universal Human Rights: e Contribution of Muslim
States,” Human Rights Quarterly 26 (2004): 799–844; Waltz, “Muslim state participation
in UN Human Rights Debates, 1946–1966,” in The Modern Middle East: a Sourcebook for
History, eds, Benjamin Fortna, Camron Miael Amin & Elizabeth Frierson (Oxford:
Oxford University Press, 2006), 444–53.
13 Waltz, “Reclaiming and rebuilding the history of the Universal Declaration of Human
Rights,” op. cit., 440.
14 Waltz, “Universalizing human rights: the role of small states in the construction of the
Universal Declaration of Human Rights,” op. cit., 54.
15 Waltz, “Universal human rights: the contribution of Muslim States,” op. cit., 837 and 901.
16 Ibid., 822–3. e historian Roland Burke highlights this contribution in his article “Why
women’s rights aren’t just Western: the forgoen history of Iraqi Feminism,” The
Diplomat 4, no. 5 (2005–6): 46–7.
17 Steven Jensen, “‘Universality should govern the small world of today:’ the Cold War and
U.N. human rights diplomacy, 1960–1968” in Human Rights in Europe during the Cold
War, Rasmus Mariager & als. (London: Routledge, 2014), 56–70.
894
18 Makau Mutua, “Savages, victims, and saviours: the metaphor of human rights,” Harvard
International Law Journal 42 (2001): 201–45.
19 Natania Jansz and als., Women Travel, First-hand Accounts From More Than 60
Countries (London: Rough Guides, 1999), 421–2.
20 Ibid., 423.
21 Ibid., 420–1.
22 Article 53, Article 54 and Article 56 of the amended Constitution.
23 Article 55 of the amended Constitution.
24 Article 41 of the amended Constitution.
25 Paul Rabinow, Symbolic Domination, Cultural Form and Historical Change in Morocco
(Chicago: Chicago University Press, 1975), 1.
26 Abdellah Laroui, “Tradition et traditionalisation: le cas du Maroc,” in Renaissance du
monde arabe, colloque interarabe du Louvain, dir. Anouar Abdel Malek, Abdel Aziz
Belal and Hassan Hanafi (Gembloux: Éditions Duculot, 1972), 267.
27 Roi Hassan II, Zamane, accessed last September 18, 2015, hp://zamane.ma/fr/tag/roi-
hassan-ii/
28 Marnia Lazreg, “Islamism and recolonization of Algeria,” in Beyond Colonialism and
Nationalism in the Maghrib, History, Culture, and Politics, ed., Ali Abdullatif Ahmida
(New York: Palgrave, 2000), 149.
29 Marguerie Missoffe-Rollinde, De l`unanimisme nationaliste au concept de citoyenneté,
les militants marocains des droits de l`Homme (Paris: Université Paris VIII, 2000), 253–4;
Pierre Vermeren, Maghreb, la démocratie impossible ? (Paris: Fayard, 2004), 202.
30 Association démocratique des femmes du Maroc, L`image de la femme et les violences
symboliques à son égard au Maroc, rapport annuel 1999 (Casablanca: Al Anbaa, 2000),
12–13.
31 Ibid.
32 UNESCO, Education for all 2000–2015: Achievements and Challenges, 232, accessed last
on April 27, 2015, hp://unesdoc.unesco.org/images/0023/002322/232205e.pdf.
895
33 UNDP, Development Report Program, Building a Knowledge Society, 67, accessed last on
April 27, 2015, www.palestineremembered.com/download/UNDP/EnglishVersion/Ar-
Human-Dev-2003.pdf.
34 Ibid.
35 Un site spécialisé démontre l`investissement du Maroc dans une solution d`espionnage
massif d`internet, Telquel, 29 May 2015, accessed last on September 4, 2016,
hp://telquel.ma/2015/05/29/site-specialisedemontre-investissement-maroc-solution-
espionnage-massif-internet_1447526.
36 Human Rights Wat, Persistent Restrictions on Rights Group, April 8, 2015, accessed
last on September 4, 2016, www.hrw.org/news/2015/04/08/morocco-persistent-
restrictions-rights-group.
37 Claude Palazzoli, Le Maroc politique, de l`Indépendance à 1973 (Paris: Sinbad, 1975), 61.
38 www.mincom.gov.ma/fren/prc/prc.html accessed last on September 4, 2016.
39 Ibid.
40 www.unhr./fren/html/menu5/wr-fr.htm accessed last on September 4, 2016.
41 José Lindgren Alves, “e Declaration of Human Rights in post-modernity,” Human
Rights Quarterly 22 (2000): 483.
42 Optional Protocol to the International Covenant on Civil and Political Rights, Second
Optional Protocol to the International Covenant on Civil and Political Rights, aiming at
the abolition of the death penalty, and the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights.
43 Irene Fernández Molina, “e monary vs. the 20 February movement: who holds the
reins of political ange in morocco?” Mediterranean Politics 16, no. 3 (2011): 440;
Karine Bennafla et Haoues Seniguer, “Le Maroc à l`épreuve du Printemps arabe: une
contestation désamorcée?” Outre-terre 3. 29 (2011): 144.
44 Miel Camau, Pouvoir et institutions au Maghreb (Tunis: Cérès Productions, 1978), 83.
45 Vermeren, op. cit., 31.
46 Ignace Dalle, Le règne de Hassan II, une espérance brisée (Paris: Maisonneuve et Larose,
2001).
896
47 Missoffe-Rollinde, op. cit., 284.
48 Human Right Wat, “Maroc: Entraves répétées aux activités d`une organisation de
défense des droits humains,” 8 Avril 2015, last accessed on July 7, 2016,
www.hrw.org/fr/news/2015/04/08/maroc-entraves-repetees-aux-activites-
duneorganisation-de-defense-des-droits.
49 Moshe Gershovi, “e ‘New Press’ and free spee under Mohammed VI,”
Contemporary Morocco, State, Politics and Society Under Mohammed VI, eds, Bruce
Maddy-Weitzman and Daniel Zisenwine (New York: Routledge, 2013), 93–108; Front
Line Defenders, Morocco – Travel Ban Against Maâti Monjib, 9/8/2015, last accessed on
July 7, 2016 www.frontlinedefenders.org/node/29658; Le Figaro, Much Loved: Nabil
Ayouch défie la censure marocaine, 06/23/2015, last accessed on July 7, 2016,
www.lefigaro.fr/cinema/2015/06/23/03002-20150623ARTFIG00253--mu-lovednabil-
ayou-defie-la-censure-marocaine.php; FIDH, 11/13/2015, Maroc: Poursuite du
harcèlement judiciaire de M. Maâti Monjib, M. Hisham Almiraat, M. Hiam Mansouri,
M. Mohamed Sber, M. Abdessamad Ait Aia, M. Raid Tarek et Mme Maria
Moukrim, last accessed on September 4, 2016, www.fidh.org/fr/themes/defenseurs-des-
droits-humains/maroc-poursuite-du-harcelement-judiciaire-de-m-maati-monjib-m-
hisham accessed last on 4 September 2016.
50 Missions de l`Instance équité et réconciliation, accessed last October 10, 2015,
hp://www.ier.ma/article.php3?id_article=147.
51 Ibid.
52 Osire Glacier, Universal Rights, Systemic Violations and Cultural Relativism in Morocco
(New York: Palgrave Macmillan, 2013), 58.
53 Fouad Abdelmoumni et Lahouari Addi, L`impunité au Maroc, Confluences Méditerranée
51 (2004/4): 70.
54 Susan Slyomovics, The Performance of Human Rights in Morocco (Philadelphia:
University of Pennsylvania Press, 2005), 21.
55 Amnesty International, Maroc: des militants emprisonnés pour avoir dénoncé des actes
de torture doivent être immédiatement libérés, last accessed October 10, 2015,
897
www.amnesty.fr/Presse/Communiques-de-presse/Maroc-Des-militantsemprisonnes-
pour-avoir-denonce-des-actes-de-torture-doivent-etre-immediatement-l-12347.
56 Ibid.
57 Abdullahi An-Naïm, “Toward a cross-cultural approa to defining international
standards of human rights: the meaning of cruel, inhuman, or degrading treatment or
punishment,” in Human Rights in Cross-cultural Perspectives, a Quest for Consensus,
Abdullahi An-Naïm ed., (Philadelphia: University of Pennsylvania Press, 1992), 35.
898
Selected Bibliography
Abdelmoumni, Fouad and Addi, Lahouari. “L`impunité au Maroc” in Confluences Méditerranée 51 (2004/4), 69–73.
Bennafla, Karine and Seniguer, Haoues. “Le Maroc à l`épreuve du Printemps Arabe: Une contestation désamorcée?” in Outre-terre 3 29 (2011), 143–58.
Burke, Roland. “Why women’s rights aren’t just Western: the forgoen history of Iraqi feminism,” in The Diplomat 4, no. 5 (2005–6), 46–7.
Gershovi, Moshe. “e ‘New Press’ and free spee under Mohammed VI,” in Maddy-Weitzman and Zisenwine eds, Contemporary Morocco, State, Politics and Society Under
Mohammed VI. New York: Routledge, 2013: 93–108. Glacier, Osire. Universal Rights, Systemic Violations and Cultural
Relativism in Morocco. New York: Palgrave Macmillan, 2013. Jensen, Steven. “‘Universality should govern the small world of
today:’ e Cold War and U.N. human rights diplomacy, 1960– 1968,” in Mariager et al. eds, Human Rights in Europe during the Cold War. London: Routledge, 2014: 56–70.
Laroui, Abdallah. “Tradition et traditionalisation: le cas du Maroc,” in Renaissance du Monde Arabe, Colloque Interarabe du Louvain. Gembloux: Éditions Duculot, 1972: 265–76.
Marx, Karl. Selections: Karl Marx on Colonialism and Modernization; His Dispatches and Other Writings on China,
India, Mexico, the Middle East and North Africa. Garden City, NY: Doubleday, 1968.
Molina, Irene Fernández. “e monary vs. the 20 February movement: who holds the reins of political ange in Morocco?” in Mediterranean Politics 16, no. 3 (2011), 437–8.
899
Mutua, Makau. “Savages, victims, and saviours: the metaphor of human rights,” in Harvard International Law Journal 42 (2001), 201–45.
Sharabi, Hisham. Neopatriarchy: A Theory of Distorted Change in Arab Society. New York: Oxford University Press, 1988.
Said, Edward. Orientalism. New York: Vintage Books, 1979. Slyomovics, Susan. The Performance of Human Rights in Morocco.
Philadelphia: University of Pennsylvania Press, 2005. Waltz, Susan. “Universalizing human rights: the role of small states
in the construction of the Universal Declaration of Human Rights,” in Human Rights Quarterly 23 (2001), 44–72.
Waltz, Susan. “Muslim state participation in UN human rights debates, 1946–1966,” in The Modern Middle East: a Sourcebook for History, B. Fortna, C. M. Amin & E. Frierson eds. Oxford: Oxford University Press, 2006: 444–53.
Waltz, Susan. “Human rights standards and the human rights movement in the Global South: e UDHR and beyond,” in Concepts and Strategies in International Human Rights, Andreopoulos, G., ed. New York: Peter Lang, 2002: 51–71.
Waltz, Susan. “Reclaiming and rebuilding the history of the Universal Declaration of Human Rights,” Third World Quarterly 23 (2002), 437–48.
Waltz, Susan. “Universal human rights: the contribution of muslim states,” Human Rights Quarterly 26 (2004), 799–844.
900
Part III
Conclusions: global theory and
grassroots reflections
901
Section VIII
Conclusions from a global viewpoint:
theoretical justifications and
contestations around human rights
902
27
International Human Rights at 70
Has the Enlightenment project run
aground?
David P. Forsythe
903
Introduction
Seven decades aer the adoption of the 1945 U.N. Charter and then
passage of the 1948 Universal Declaration of Human Rights is an
appropriate time to take sto. As experts know, the Charter was the
first general treaty to obligate every state member to “promote …
universal respect for, and observance of, human rights and
fundamental freedoms for all …” (Article 55). ere was nothing
similar in the League of Nations Covenant. e U.N. General
Assembly, acting on the work of the now defunct Human Rights
Commission, subsequently laid out 30 human rights standards in its
Universal Declaration—a non-binding resolution adopted on
December 10, 1948 covering civil, political, economic, social, and
cultural rights.
is list of core rights, adding up to a recipe for global social
democracy, was to a great extent initially impacted by Western
social democrats like John Humphrey of the U.N. Secretariat, a
Canadian, and Rene Cassin representing France, not to mention
those of similar views in governmental delegations from a variety of
states. Some of those negotiating the Declaration were non-Western
but were for the most part Western educated and otherwise Western
connected. Many others who were active in non-governmental
organizations held compatible views. In the period 1945–8 human
rights talk was widespread, if only to justify the enormous sacrifices
entailed in fighting and winning the Second World War—a war
whose official purposes had been laid out by the allies in the Atlantic
Charter of 1941. e Atlantic Charter closely reflected Franklin D.
Roosevelt’s belief in four core freedoms: freedom of spee, of
religion, from want, and from fear. To paraphrase, part of the FDR
tradition emphasized the importance, at home and abroad, not only
904
of civil and political rights for all, but also welfare rights plus the
right to peace. ese all showed up in the Universal Declaration.
Now from the beginning of what some called the human rights
era, virtually no state truly believed in the total paage of personal
rights laid out in the Universal Declaration. No state voted against
and only eight states out of 58 abstained in the voting (the Soviet
Union, its allies, South Africa, and Saudi Arabia). But of the 50
voting in favor, many if not most were less than enthusiastic in
reality. e United States still practiced its version of apartheid, and
whatever the views of Eleanor Roosevelt who was President of the
U.N. Human Rights Commission, or President Truman who had
succeeded FDR, the Southern Senators who controlled the Senate
were not going to allow ratification of an international legal
document that tightly bound the United States to equal human
rights without regard to race. Likewise, British leaders like Winston
Churill, soon to return to power, did not really believe in human
rights without regard to nationality, witness the now well
documented British demeaning views toward people in former
subservient areas like Iran,1 not to mention British torture of those
resisting British rule in places like Kenya. France held similar views
of non-Western political activists in places like Algeria and Vietnam,
with similar policies of torture. So from the beginning, state
hypocrisy was one of the factors at play. Development of the norm
of state sovereignty might be organized hypocrisy,2 but so was
development of human rights norms.
From this mixed beginning, with mu loy rhetoric and
endorsement of ‘nice norms’ but also with mu aention to keeping
most human rights norms from being specific and legally binding, a
mixed development followed. ere was some progress and
considerable ineffectiveness. e complex evolution of human rights
since 1948 has led some commentators to stress ineffectiveness and
pessimism3 while others have been more optimistic.4
905
What follows is an independent stotaking of universal human
rights over the past 70 years. My central argument is that while
there has been mu normative and institutional progress, especially
in areas of Western culture, the situation is very mu otherwise
with regard to the practice of human rights in mu (but not all) of
the non-Western world. If, as oen argued, the idea of personal
human rights was given a big push by the (Western) Enlightenment,
then the practice of rights has fared the best in Western nations and
in those states most closely aligned with Western states. I do not see
the West as totally inventing human rights, because there were some
non-Western antecedent ideas highly relevant, but I do see the West
as giving a strong push to the notion of individual personal rights.
To the extent that the Western idea of universal human rights has a
bright future in the non-Western world, that evolution depends, it
seems to me, on the extent to whi international norms find
resonance with political activists everywhere but especially in post-
colonial areas. at is, for human rights to survive in the future,
non-Western political activists most struggle effectively and join the
rights bandwagon.
In other words, the future of human rights in places like the
Middle East depends on their real adoption by influential locals. is
will not happen overnight, but it may (or may not) happen
depending on local agency in contingent contexts. Negative learning
is likely to be a key factor, as persons reflect on what went wrong in
the past and try to make the appropriate corrections. I submit it is
usually negative learning—viz., how we deal with big mistakes—that
usually causes us to adopt something radically new. For example, it
took the sho of World War I to produce the League of Nations and
the massive destruction of World War II to produce the United
Nations with aention to human rights. It also usually takes a nasty
war to lead to new negotiations on the laws of war: World War I led
to the 1929 Geneva Conventions, World War II to the 1949 Geneva
Conventions, wars of national liberation in Algeria and Vietnam to
906
the 1977 GC Protocols I and II. In 2015 it took a white man
commiing murder in a bla ur in Charleston, South Carolina
to get that state to remove the Confederate bale flag from public
buildings.
907
Baground
e idea of universal personal rights, whi legitimate public
authority should not violate, was indeed historically speaking
advanced by the West since the eighteenth century. us there is
reason to refer to contemporary rights politics in shorthand as the
Enlightenment project: the effort to use reason to socially construct
human rights to prevent the repetition of human wrongs. Su rights
promote the worth of ea individual, and along the way
presumably promote international peace and stability. Aer all, the
U.N. Charter’s Article 55 starts by saying, “With a view to the
creation of conditions of stability and well-being whi are
necessary for peaceful and friendly relations among nations.…”5
e primarily Western push for contemporary human rights since
1945 is accepted by a variety of authors, including Stephen Hopgood,
who puts a negative spin on developments. For him, the drive for
universal human rights is a form of Western cultural imperialism
that depends on Western power. When that power declines, a slide
that he sees as already underway, so will institutionalized aention
to human rights in world affairs. He extends his analysis from
international human rights law to international humanitarian law,
citing the laer’s origins in Europe, under the aegis of the Geneva-
based, and all-Swiss at the top, International Commiee of the Red
Cross.
is view is not to be dismissed out of hand. Others have made
similar arguments. Given the power of the West from at least the
seventeenth century if not before, there have been many Western
views about international order that got considerable aention.6 A
liberal world order featuring some range of human rights is one of
these Western arguments.7 Others, too, have seen the contemporary
908
push for human rights as a form of Western imperialism.8 Aer all,
if the United States, Britain, and France wanted to take a human
rights approa to Kaddafi’s Libya, or the possible genocide of
Yazidis in Iraq, something happened. If those Western states wanted
to avoid human rights interpretations about al-Assad’s Syria, not
mu happened by way of external intervention—at least for some
years during whi over 200,000 were killed. Most human rights
resolutions in the U.N. Security Council are introduced by Western
states. (e situation is not the same in the General Assembly and
Human Rights Council, where various states use the language of
human rights to defend one particular religion, or delegitimize Israel,
etc.)
ere are ample double standards at play providing further
support for the human-rights-as-Western-imperialism view. e
United States had led the arge at the U.N. Council pressing for
investigations into human rights violations and war crimes toward
the end of the internal war in Sri Lanka between the Tamil Tigers
and the government in Colombo. e United States under both
Republican and Democratic Administrations has done almost
everything it could think of to avoid accountability for its human
rights violations and war crimes in its counter-terrorism policies
aer 9/11/2001.
Noting the woeful la of consistent practice of human rights in at
least parts of the world aer more than six decades of rule-making
about those rights, Emily Hafner-Burton’s solution to that
distressing situation is to emphasize those rights violations where
Western states might do something about them. Of course that
would also reaffirm international human rights action as looking like
Western imperialism.9
Seeing contemporary human rights as a Western-led campaign
does not necessarily discredit the idea. If the bicycle was invented in
Paris, that fact does not suggest that it has no application in Beijing.
And for that maer, the notion of state sovereignty so readily
909
accepted around the world was also a Western invention, elaborated
by Jean Bodin in the sixteenth century, also in France. en too, the
United Nations was a Western invention, with planning principally
in Washington, but all states clamor to join, with only one state
having ever le (Indonesia) and that for not very long. e concept
of genocide was a Western invention, by the Polish lawyer Raphael
Lemkin, but that legal concept has met with universal acceptance,
and so forth.
910
Effectiveness
It is incontestable that never before in world history has anyone seen
so many human rights standards developed, so many inter-
governmental organizations created to seek their implementation, so
many hours spent in diplomacy (and even court proceedings)
pursuant to those standards, and so many non-governmental
organizations formed to monitor developments and advocate for
beer implementation. Most states want to be associated with the
idea of human rights, witness the high ratification record of existing
human rights treaties, with ample proposals to add even more
norms. So there has been, without doubt, normative and institutional
progress in trying to improve the human condition through aention
to fundamental personal rights. With regard to human rights, the
game of international relations is really played in a different way
now, as any cursory look ba to 1920 or 1900 would confirm—or
maybe even 1970.10
One can be Pollyannaish about this record, failing to note loose
wording and escape clauses in the documents, the la of muscular
authority on the part of most supervising agencies (viz., too many
weak, overlapping bodies), the long list of reservations aaed to
treaty ratifications, the niggardly funding of human rights offices
and agencies, the failure of many states with powerful military
establishments to allow international courts to pass judgment on
assertions of war crimes, and so on. In a future section of this essay I
will get into a systematic treatment of fundamental problems and
negatives. But at least occasionally, the fact is that some norms and
institutions do make a positive contribution. e Vatican was
profoundly embarrassed in 2014 by proceedings in the U.N.
Commiee Against Torture on the subject of ild abuse by
911
pedophile priests. is pressure followed an earlier effort in the same
year on the same subject by the Commiee on the Rights of the
Child. ere is evidence that anges on this maer are underway in
the Vatican, with those Commiee hearings as part of the reason
why. (e role of the new Pope is also important.)
If we become more specific, one can identify certain areas of
progress even if progress remains incomplete (as it always will be).
International criminal justice
First, I would put the Renaissance of international criminal justice.
As is reasonably well known, aer the Nuremberg and Tokyo Trials
of the 1940s international criminal justice went into eclipse as Great
Power energies were anneled into the Cold War. But in 1993 with
regard to the former Yugoslavia and then 1994 with regard to
Rwanda, a newly harmonious U.N. Security Council created ad hoc
criminal courts. Yes, this was again a Western-led development, and
yes it was contingent on particular facts in particular times—mainly
a desire in Washington and Paris to do something not too
inconvenient about the human tragedies of the Balkan War of 1992–
5, and then a desire not to be obviously racist and manifest double-
dealing concerning Rwanda. But this is how ange oen occurs (I
would say almost always occurs)—by particular agents in particular
contexts acting with mixed motives. It is then up to other actors to
consolidate and possibly expand developments, as occurred with the
creation of other criminal courts with limited jurisdiction, and then
the emergence of the permanent International Criminal Court (ICC)
by 1998–2000.
Certainly these criminal courts have not proven a panacea for all
the defects of human dignity in places like Sierra Leone, Cambodia,
East Timor, Lebanon, and elsewhere. is is certainly true of the
ICC, with its slow, bumbling, and paltry record of convictions. And
912
the more active the ICC has become, the more particularly some
African leaders have tended to see it as a threat to their freedom of
policy making. is is not unexpected, given the unsavory nature of
many policies by African leaders, as in Kenya. Governments adopt
human rights standards thinking they will be applied to others; then
they dig in their metaphorical heels when the standards are applied
to them. Nevertheless, a fair evaluation of the “justice cascade”11
would indicate that the renewal of international criminal justice has
taken any number of terrible leaders out of politics and into jail, as
the story of Charles Taylor of Liberia would indicate. Indeed, from
the Balkans to the Great Lakes region of Africa, prime ministers,
mayors, war lords, militia leaders, and party activists have all felt
the sharp edge of international criminal courts.
Relatedly there is the “Pinoet precedent” stemming from
proceedings during 1998–2000. When UK courts ruled it was legal
for the British government to extradite the Chilean former dictator
to Spain to stand trial for arges of torture in Chile, that sent notice
even to the powerful that national exercise of the principle of
universal jurisdiction was in play in the game of international
relations. Britain, a rule of law country, reaffirmed that under certain
treaties, certain crimes like torture were so heinous that any state
could try a defendant regardless of nationality or place of events,
and that even claims to state sovereignty by high officials or former
officials need yield to legal justice. e fact that the UK rewarded
Pinoet for his past anti-communism by sending him home to Chile
under the guise of ‘humanitarian’ considerations of bad health did
not ange the potential sweep of the court’s ruling.
Subsequently other officials and former officials from a variety of
states carefully calculated where to travel, or when to cancel travel
plans, for fear of being served with legal papers related to alleged
atrocities. Who can be sure who is next, especially if from a small
and weak government without powerful allies. One source found
over 150 cases based on universal jurisdiction in recent years,12 as
913
exercised by 19 countries.13 Power still maers, and relatively weak
states do not want to take on more powerful ones. us, Belgium
scaled ba its universal jurisdiction law when the United States
pressured it to do so. Still, there has been (incomplete) ange in a
positive direction.14
So renewed national exercise of universal jurisdiction ran parallel
to the Renaissance of international criminal courts in puing
pressure on those linked to atrocity crimes—primarily genocide,
crimes against humanity (including ethnic cleansing), and major war
crimes but also torture. is is progress even if double standards
remain.15
Transitional justice
Relatedly, I would note the aention now given to transitional
justice. Aer the end of dictatorships, wars, and other situations
involving gross violations of human rights and humanitarian law,
there have been redoubled efforts, once again, to reinforce rights in
order to prevent a recurrence of future wrongs. ere is an effort at
negative learning: how to transition to institutionalized human
dignity, to avoid repeating the repressive and oppressive past. is
can sometimes overlap with criminal justice, either national or
international.
(Sometimes there is aention to gross violations of human rights
and humanitarian law even while a situation is evolving, as per
discussion of war crimes, crimes against humanity, and torture in
the Syrian civil war. It is not always the case that all actors wait
until the end of an era to address how to deter and rectify atrocious
acts.)
Without spending mu more time on criminal justice in this
essay, I would argue that in the aermath of gross violations,
national criminal justice is likely to be more about vindictive
914
retribution than building future liberal and legitimate order. One has
only to recall the spectacle of Shia Iraqis trying the Sunni Saddam
Hussein, or some Polish democrats trying the former communist
leader of martial law, Wojcie Jaruzelski, to appreciate the
problems. Both judicial procedures constituted a circus—albeit a fatal
one in Hussein’s case. en there was the debacle of one political
faction in Bangladesh holding war crimes trials for a competing
political faction, based on earlier behavior in the 1971 fighting that
carved Bangladesh out of East Pakistan. So there is mu to
recommend international trials according to international standards.
Unfortunately, as in Libya aer 2010, headstrong local partisans
oen insist on running their own judicial show rather than involving
the international community. e result in Libya was a failed effort
to try some of those who had supported Kaddafi, resisting a role for
the ICC, with the consequence that no trials occurred at all (at the
time of writing) in that aotic situation.
e larger point for present purposes is that there is now active
discussion of a range of options concerning how best to
institutionalize democratic and other rights aer dictatorship and
other rights violations. Almost always in the wake of fundamental
ange, whether pertaining to end of dictatorship, end of war, or end
of instability, one moves to a debate about trials or reconciliation
commissions or pardons (amnesties) or reparations or memorials.
ere is also an argument for doing nothing special in some
situations, since aer the Spanish civil war and eventually the
demise of autocrats like Franco and Salazar (in Portugal) one saw
those Iberian countries successfully transition to stable liberal
democracies without special look-ba procedures (perhaps because
of their integration into organizations like the European Union,
Council of Europe, and NATO).
ere is now a vast literature exploring lessons learned from this
menu of oice, with some finding a correlation between trials and
stable liberal democracy but others finding some linkage between
915
trials and amnesties and liberal order. ere is mu discussion of
how the South African Truth and Reconciliation Commission eased
the way from white minority rule to multi-racial democracy circa
1994. ere is also mu discussion about how in some situations,
advocates for the ancien régime are simply still too powerful for
trials to occur, and so some actors, whether public or private (e.g.
Chures) seek an alternative reoning. is occurred, for example,
in Brazil (see the report, Nunca Mais) compiled by the Catholic
Chur in Sao Paulo. Some solars believe there is no science on the
maer and that one needs to adopt policy oices on a case by case
basis looking at the particular factors of ea individual case.16
It is not irrelevant to note that Germany has faced up to its past
with regard to the Nazis and the holocaust, has to considerable
extent moved beyond those dark times, and emerged not only as a
stable liberal democracy but oen a leader for human rights and
humanitarian affairs. On the other hand, Japanese leaders continue
to be ambivalent about taking clear and full responsibility for
Japanese aggression and war crimes (including the practice of sexual
slavery) in the 1930s and 1940s, with the result of facing continued
friction with China and South Korea and others. Turkey, for its part,
continues to adamantly deny having conducted genocide against the
Armenians circa 1915 and before, despite convincing evidence of
genocide. Once again the result has been continued controversy and
friction rather than laying the maer to rest and moving on. And
even in Spain, once thought to have successfully skipped over
revisiting the atrocities of the Spanish civil war and the Franco era,
there emerged in recent years precisely argument, contention, and
debate over that history. Efforts to avoid a historical reoning in
Spain have not in fact been fully successful.
In any event, it is now rare to find an end to repressive regimes or
destructive wars without also finding a debate about how to ensure
more personal rights in the future and avoid a return to repressive or
916
destructive situations. is is progress, even if based on the negatives
inherent in negative learning.
Responsibility to protect
Another example of progress concerns R2P: the Responsibility to
Protect. It had long been recognized that an absolute notion of state
sovereignty was a recipe for internal atrocities. Aer all, for those
concerned with how Hitler was treating German Jews and
homosexuals and dissidents, international law provided no basis for
action in that era. If a government was the supreme voice of a
sovereign state, and if there was a prohibition on external
interference into domestic affairs, efforts to stop domestic atrocities
were legally bloed.
It was therefore important that the principle of R2P was
unanimously adopted at a U.N. summit in 2005 and then was
followed up by supportive action by others. Without doubt the
concept has gained acceptance over the years, despite the fact that
the 2005 statement of principle consisted of two paragraphs in a long
U.N. statement about all the good things that ought to occur in
international relations. Once again it was a maer of a particular
proposal at a particular time that seemed of dubious importance, but
was then pursued with considerable diligence by various actors.
As is reasonably well known by now, R2P implies that state
sovereignty is not absolute but rather depends on the sovereign state
acting responsibly under international law. If a state is unwilling or
unable to prevent genocide, crimes against humanity including
ethnic cleansing, or major war crimes, outsiders have a duty to take
corrective action in keeping with international law. is laer phrase
was designed to counter a historical fact, namely that some powerful
states intervened in the internal affairs of other states for self-
interested and legally unjustifiable reasons—hence the misuse of the
917
so-called humanitarian intervention doctrine. Putin’s ‘humanitarian
convoys’ into eastern Ukraine in 2014 have kept alive the fear of the
misuse of that doctrine.
Given this history and thus the taint on the humanitarian
intervention doctrine, the authors of R2P went to great lengths to
differentiate the new R2P concept, stressing the need for early and
peaceful efforts to deal with situations that might turn into
atrocities.17 In this regard I would note an example of judicial R2P in
the case of Kenya. Given past electoral violence, the ICC initiated an
official inquiry into the role of certain Kenyan leaders in fomenting
violence and displacement against political opponents. In fact, under
the scrutiny of this ICC involvement in Kenyan affairs, the level of
political persecution declined in subsequent elections. However, the
targeted Kenyan leaders succeeded in stymying ICC judicial
procedures by su measures as intimidating or paying off witnesses,
while they mobilized regional support from certain other African
leaders. So while the Kenyan electoral process was improved in
relative terms at least for a time, the role of the ICC was bloed by
the self-serving and unprincipled maneuvers by the defendants and
their supports, as they troed out the expected arguments about the
ICC being part of renewed neo-colonialism (the ICC Prosecutor,
however, is Gambian). Unfortunately at the time of writing, ethnic
conflict seems on the rise once again in Kenya.
Other examples are debated about the actual or potential
activation of the principle of R2P concerning: 1) humanitarian relief
aer typhoon Nargis in 2008 in Myanmar (the junta seemed to be
stalling in order to exclude outsiders, the Fren had warships off the
coast, the junta allowed more international relief); and 2) threats to
civilians in Libya in 2011 (the Security Council authorized action for
civilian protection but not regime ange). ere is mu to analyze
about these and other cases of the actual or potential application of
the principle, as in Democratic Congo, but space here does not allow
it.18
918
Suffice it to say for present purposes that the adoption of R2P, the
practice of universal jurisdiction, and the workings of international
criminal courts all made clear that in the world today, claims to
absolute state sovereignty are not to be used to mask atrocious
actions that violate international human rights and humanitarian
law. State sovereignty properly conceived is relative, and its proper
practice limited by, above all, avoiding atrocities as defined by
international law.
It is of course true that diplomatic principles and international
legal norms do not implement themselves. Some actors have to take
the responsibility to see that the standards are upheld. e world
being what it is and the U.N. Security Council being what it is, key
states and especially the Permanent-Five with the veto will almost
always evaluate action with a view to their own self-interest. And so
R2P was applied to Libya in 2011 but not Syria, despite the horrific
internationalized internal armed conflict ongoing in the laer. For
key Western states, Libya seemed ‘doable’ whereas Syria seemed
mu more complicated. For Russia, Kaddafi was a pariah whereas
Assad comprised its only valuable ally in the Middle East. For China,
most of its Arab oil suppliers wanted Kaddafi gone, whereas Assad
had the baing of oil-ri Iran (and Hezbollah). I will return to this
subject later.
Without writing a book on the subject of R2P, I would say that the
adoption of R2P is an important and progressive step in making clear
that state sovereignty is not a license to allow or commit atrocities
against individuals. As usual, there will need to be continuing efforts
to close the gap between loy statements of principle and consistent
and effective practice.
Regional developments
919
We should not overlook regional human rights regimes, especially in
Europe and also Latin America. e one in Europe has been
remarkable not only for the authority transferred to international
institutions but also for its general record of success until recent
times. e one in the Western Hemisphere has been slowly gaining
in scope as well as effectiveness, especially if one focuses on Central
and South America and not the United States, Canada, and the
English speaking Caribbean.
e human rights institutions for Europe are exceedingly complex
and no effort will be made here to go into the details of the Council
of Europe, the European Union, and the Organization for Security
and Cooperation in Europe (whi deals with minority rights among
other subjects su as elections). In general one finds two
supranational courts dealing with human rights. e European
Court of Human Rights deals only with that subject, whereas the
European Court of Justice deals with human rights occasionally.
Both have operated to enlarge the protection of human rights over
time, of course not without controversies about the wisdom of their
judgments. Particularly the former is drowning in its case load,
demonstrating the point that if you give individuals the right to try
to protect their rights, they will not be shy or passive about it.
Private petitions are swamping the Human Rights Court, with a
sizable balog of unfinished business.
In general states that have lost cases in these courts have
implemented at least most parts of the judgments. us as a general
rule they have, for example, paid the ordered reparations to those
wrongly treated, even if some states have not fully revised their legal
code or legislative agenda to head off repeat violations. A major
problem, but not the only one, for the European Court of Human
Rights is Russia. Its membership in the Council of Europe leads to a
large number of petitions against it, for Putin’s Russia is increasingly
autocratic and in violation of a large number of rights found in the
European Convention on Human Rights and Fundamental Freedoms.
920
Aer the Cold War it was said in some circles that it was politically
impossible to keep Russia out of the Council of Europe but it was
legally impossible to manage Moscow once they were in. Other
states subject to the European Court of Human Rights also present
systematic problems because they are either illiberal democracies
without full commitment to human rights,19 or simply increasingly
autocratic. Hungary and Turkey come to mind.
Nevertheless, for reasons well explained by Roger Kagan,20 many
European elites are aware of the dangers of unrestricted nationalism.
ey do not trust their nations not to fall ba into policies of
extremism and repression. And thus they have been willing to
delegate authority to international institutions in order to deter the
return of those dangers. State historical rivalries, two disastrous wars
within 20 years, and the record of European communism and
fascism all contributed to the acceptance of muscular multilateralism
with mu aention to the protection of human rights. ere are
particular regional reasons why Europe manifests the best regional
mainery for the protection of human rights, making possible, for
example, regular supranational courts that are clearly premature on
a global basis. (e ICC is a court of last resort and is not activated
unless national procedures demonstrate the state is “unwilling or
unable” to do the right thing.)
We should note in passing, however, some debate in London
about withdrawing its consent to the European Court of Human
Rights, given how that Court’s judgments have forced big anges in
the traditional British legal regime. Some British have a very
elevated view of British legal history and resent anges forced by
an international court.
e Inter-American human rights system, by comparison, does
not have the impact of its European counterpart, but it is far superior
to regional human rights developments in Africa or via the Arab
League. Asia, and its sub-regions, shows the least regional
developments of all. As derived from the Organization of American
921
States, the Inter-American system features an active Commission on
Human Rights (the European one is now extinct, its duties folded
into the Human Rights Court). e supranational Inter-American
Court now has compulsory jurisdiction over about 20 states and is
beginning to have an important impact on the public life of Central
and South America. For example, the Court ruled in the Barrios
Altos Case that Peru under President Fujimori was responsible for
death squads whi had killed a number of citizens in 1991. e
follow-on democratic Peruvian government paid reparations under
that judgment and then used the case as part of its successful effort
to have Fujimori extradited from Japan for a criminal trial. e
principle was reaffirmed that even high state officials are not above
the law.
Most English speaking member states of the OAS have not ratified
the Inter-American Convention and do not accept the Court’s
jurisdiction. In the case of the United States, it has a very high
opinion of its human rights record and policies, not altogether
justified if one reads about U.S. human rights defects in the view of
the U.N. Human Rights Commiee (that supervises the International
Covenant on Civil and Political Rights). Nevertheless, it does not
accept that various international organizations should pass binding
judgment on its own human rights policies. ere seems no
consensus as to exactly why the English-speaking states of the
Western Hemisphere have rejected the Inter-American Court of
Human Rights. us unlike Europe, where all the major states are
subject to binding rulings by the European Court of Human Rights,
the Inter-American Court has made a growing impact on the region
without that kind of support.
It is also not perfectly clear why some 20 states have bought into
the supranational IACHR. e lo-in theory, said to explain
European developments, seems not to be applicable in the Western
Hemisphere, as some important states accepted the Court’s
jurisdiction before their transition to full liberal democracy. In any
922
event all the major Latin American states like Argentina, Brazil,
Chile, and Mexico are parties to the Court. us we have another
area that is Western by culture (most elites have derived from Iberia
in Europe) and whi shows impressive human rights commitment—
at least at the moment. At the time of writing Brazil might be
moving in a different direction with regard to regional human rights
meanisms.
Only Cuba and Venezuela lay outside the mainstream of liberal
democracy in the region, although Honduras is borderline in that
regard and certain other governments at times show tendencies
toward a type of Huey Long authoritarian populism (not only in
Venezuela but also in Ecuador and Bolivia). ere is mu socio-
economic inequality in the region whi is a factor making for
periodic protests and instability and the undermining of stable
democracy based on a broad and effective welfare state (social
democracy). Poverty does not correlate well with consolidated
liberal democracy based on rights.21 Nor does extreme inequality
bode well for stable democracy.
Still, in relative terms, Europe and the Latinos of the Western
Hemisphere manifest regional human rights developments far ahead
of the rest of the world. ere is some effective protection of rights
through regional arrangements.
No doubt one could go on about positive human rights
developments here and there. ere is a rather long list of
institutional and other advances in the United Nations system.22 I
would say that even the new U.N. Human Rights Council is slightly
beer than the old U.N. Human Rights Commission. e new
Council now delegates, for example, a number of inquiries to panels
of independent experts, whi tends to reduce the politicization of
reports at least at an early stage. (ere is continuing controversy
over the appointment of some of the experts, as some governments
see them as biased from the start.) If one excludes the question of
Palestine, the Council’s record is mixed—a blend of positive and
923
negative developments. Without continuing ad nauseam, it is safe to
say that not all is gloom and doom since 1945 and that some real
progress has been made not only normatively and institutionally but
in the important maer of anging policies and practices for the
beerment of individuals. But we need to be honest about the
limitations, failures, and disappointments.
924
Ineffectiveness?
Professor Hafner-Burton is not altogether wrong when she writes
that states endorse human rights commitments only to proceed to
break those commitments when they prove inconvenient. David
Rieff exaggerates only a lile when he writes that all the human
rights and humanitarian norms have not kept one jaboot off the
ne of one victim. It is well known there is a huge gap between the
orgy of liberal rule-making in the world and the fate of those who
lost the birth loery and wound up in Afghanistan, Iraq, Syria,
Somalia, South Sudan, Darfur, Congo, Myanmar, Central African
Republic, northern Mali, northern Nigeria, and so on, and so on, and
so on. Have the norms helped Baha`i in Iran, women in Saudi
Arabia, Muslims in northwest China, North Africans in France,
Roma in Eastern Europe, African-Americans in Selma, Alabama or
Ferguson, Missouri, etc., etc., etc. ?
ere are some persistent and fundamental barriers impeding the
realization of human rights in policy and practice.
Nations and narrow nationalism
First on my list is the continuation of the nation-state system and the
continuing hold of narrow nationalism. All the inter-governmental
organizations, from the U.N. to the WTO, have not so mu replaced
the nation-state system as they have just modified it. Particularly on
security questions, it is up to states themselves to guarantee their
continued existence. Poland has come and gone on various maps
over time, and Ukraine (or parts thereof) may follow suit. e U.N.
Security Council cannot be relied on to guarantee state security,
925
mu less to systematically stop atrocities because of: 1) the la of
independent hard power, all U.N. military power being tenuously
borrowed from states; and 2) the veto by any of the P-5 whi can
blo action in particular cases.
is being so, as Bernard Kouner was bold enough to state, even
democratic governments cannot do human rights consistently
because they have to look out for their security and that of their
allies.23 e global security dilemma has not been solved, whi
means that governmental security concerns are the real trumps in
foreign policy, oen relegating human rights concerns to a
secondary or tertiary ranking—if not to total oblivion. Hence, when
the United States was aaed by al-Qaeda on 9/11/2001, the George
W. Bush Administration reacted with forced disappearances of terror
suspects and their cruel and tortuous treatment. e British were not
gentle in their treatment of prisoners in the ‘Troubles’ in Northern
Ireland. e Israelis have used physical and psyological pressures
against Palestinian detainees (whi is not to be confused with the
Palestinian Authority’s and Hamas’ torture of Palestinians thought
to be informers for Israel). To keep to this one genre of human rights
violations, Rejali and others have made clear that even democracies
torture in the name of national security.24
e security dilemma from the nation-state system (every state
for itself) is compounded by various forms of national
exceptionalism. Fueling the policies of the George W. Bush
Administration was the belief that the United States was the engine
for progress in the world, and that to aa New York and
Washington was to engage in the worst form of uncivilized behavior
whi put the aaers beyond the Pale of humane treatment. e
British justified their colonial excesses as the price of bringing
civilization to baward peoples (the White Man’s burden) as did the
Fren (their civilizing mission). Even a lying scoundrel like
Vladimir Putin in Moscow sees himself as a moral force, resisting the
decadent West and building a zone of progress in the Russian near
926
abroad whi is blessed by the Russian Orthodox Chur. is is not
dissimilar from Pinoet’s seeing himself as the savior of Christian
civilization in Chile as he tortured and killed and stole ildren from
suspected godless communists (or in some cases suppressed liberal
Catholic priests). National leaders oen have a romanticized and
highly inflated view of themselves and their nation’s place in the
world. ey, like the repressive Czars of old, claim to be doing holy
work. is oen leads to human rights violations of the worst sort.25
Even in less romanticized form, the nation-state system and
narrow (paroial) nationalism leads to a brake on taking
international human rights norms fully seriously. Most Western
states resisted geing deeply involved in the Syrian quagmire from
2011 because it was Syrians and other Middle Easterners (e.g. from
Hezbollah) geing killed and maimed, not Westerners. It was an
obvious tragedy but not a Western tragedy. Certainly in the United
States, aer long involvements in Afghanistan and Iraq, there was
no ground swell of opinion in favor of costly involvement. It was
only when radical Muslims operating from bases in Syria beheaded
an American photo-journalist in 2014 that the debate shied,
relatively speaking, in favor of more U.S. involvement in the Syrian
civil war. One shoing American death recorded on video could
galvanize media coverage and policy debate in Washington, whereas
many other foreign deaths in Syria had not. (Other Americans were
later killed.)
Because of the nation-state system and the pull of nationalism,
transnational morality and solidarity remain weak while national
morality and solidarity is oen strong.26 With an important
exception noted below, it is only nationalism that allows most
persons to pay taxes and put themselves in harm’s way by serving in
the military. In fact, given nations, nationalism, national identity,
and national citizenship, some Western solars view aament to
universal human rights without regard to nationality, race, religion,
or other particular aracteristics as simply utopian.27
927
Religious fervor
Second on my list of persistent impediments to an effective human
rights regime is misguided religious fervor whi can overlap with
auvinistic nationalism as noted above but whi can also exist in
the form of any holy war and extremist crusade. e Islamic State
movement (or ISIS, or ISIL) is a good example of this phenomenon
via initially an armed non-state actor (whi is trying to become a
multinational state), similar in some ways to the fractured al-Qaeda
franise system before it. Finding some Islamic religious figure to
bless its cause, the Islamic State kills and tortures with gusto,
including presumably wrong-headed Muslims as well as non-
believers, all the while claiming to be implementing the will of
Allah. (Likewise some Christians also adopt brutal actions as the
Lord’s will, and some Jews do the same because of being Yahweh’s
osen people.) e Islamic State has proclaimed a transnational
Caliphate in its zone of control, a multinational theocracy akin to
some of the empires of the past in whi transnational ambition was
linked to religious inspiration (most of the Western empires,
actually). e Islamic Boko Haram based in Nigeria has also
proclaimed a multinational Caliphate and has also used brutal
tactics.
ese political-religious movements undertake total war, limited
only by the means at their disposal. ey accept limits based on
neither human rights nor humanitarian law. Mu like the East and
West during the Cold War, or various liberation movements fighting
for de-colonization, they believe in a ‘higher morality’ that
transcends the secular limits of public law. Once the jihadists adopt a
total war approa, it is difficult for the other side to maintain limits.
ere is lile limiting reciprocity in these asymmetrical conflicts.
Once the holy warriors aa civilians, aid workers, hospitals, and
out-group religious structures, and if they have some success,
pressures build for opponents to also adopt any means, or at least
928
questionable means, to stop the brutal jihadists. Total war tends to
beget total war in return. (It was predictable that the Islamic State
would waterboard several American captives aer the Bush
Administration had waterboarded several Muslim captives aer 9/11
—a kind of negative reciprocity. Some of those beheaded by ISIS
wore orange prison aire, mimiing detainees at Guantanamo.
Geroge W. Bush claimed to be doing the Lord’s work, as did al-
Baghdadi, the shadowy leader of the Islamic State.)
To be sure, there are secular factors mixed in with the religious
ones. Osama bin-Laden was incensed that Saudi Arabia turned to
the United States for protection against an expanding Saddam
Hussein in Iraq, with Ridya spurning bin-Laden’s offer of help. He
was irritated by U.S. support for Zionism and Israel, with terrible
repercussions for many Palestinians (some of whom are in fact
Christian), and so forth. But religious views, su as his concern
about Western troops stationed in Islamic Saudi Arabia, and Israeli
control of Jerusalem and its Islamic holy places, loomed large in his
thinking. e same mix of factors, with religious views central, is no
doubt true of al-Baghdadi.
Now some fighters for these jihadist groups are no doubt drawn to
the cause because of love of action and violence per se, not knowing
what else to do with their unsatisfying lives. What omas Friedman
has called the “stand around guys” can be mobilized into radical
causes because of unemployment or other forms of social alienation.
ey are willing even to become suicide bombers. But the glue that
holds these movements together is the view that ‘true’ Islam has
been aaed and exploited by the West and its allies. Because
Mullah Omar or al-Baghdadi tells them that they represent the one
true religion, then terror supposedly reflects the mind of a vengeful
Allah.28 Since one has religious Truth on his side, any brutality is
justified and actually pleases God. e fact that other Islamic
authorities, perhaps in Cairo, condemn their actions seems not to
maer to them.
929
An age of terror, in contemporary times in the form of Muslim
extremists, is not an age conducive to serious aention to human
rights and humanitarian law. Insecure national governments tend to
respond in kind—hence the linking of the first two negative factors.
Traditional practices
ere is also the size of the problem to be overcome, since mu of
the world is aracterized by traditional practices whi are illiberal.
Women are oen seen as inherently unequal and second-class. ere
is female genital cuing. Many political leaders succumb to the ‘Big
Man’ view of government, seeing autocratic rule as normal and in
keeping with local history. ey have lile commitment to the
concept of government as existing to advance the rights and welfare
of the people. In all too many places, from China to Congo,
government is seen as an avenue to personal, family, and clan
wealth. In a number of nations ruling elites believe only autocratic
power can maintain stability and national cohesion. Whether in
China or Egypt or elsewhere, authoritarian elites hold a dim view of
democratic rights and show lile interest in working for a gradual
transition to a government by and for the people. In truth, given the
way colonial powers drew national borders aer 1919 and again
aer 1945, that process did make national stability and cohesion a
very complicated maer for many of the newer states. Iraq is a clear
case in point.29 In important places like China, past Western
imperialism exploited weakness and opposed effective centralized
government. Divide and rule was a Western approa oen applied.
is history taints and weakens today’s human rights appeals
coming from the West.
In summary, there are structural, meaning fundamental, problems
to be overcome if the international law of human rights is to become
broadly effective. e persistence of the national security dilemma
930
and hence giving priority to national security issues, the deep roots
of paroial and even auvinistic nationalism, religious extremism,
and many illiberal traditions especially in the non-Western world all
present significant barriers to the practice of human rights (and
humanitarian law).
931
Conclusion
It took several hundred years for the state system of international
relations to form (ca. 1648 to 1975, the laer date being the end of
the Portuguese Empire, or maybe we should use 1991 and the end of
the Soviet empire) with an absolute theory of state sovereignty at its
core. I think it will take another very long time for the theory of
human rights to result in the liberalized practice of that system.
Particularly once some nation-states have nuclear weapons,
national power is not going to disappear. Moreover, the working of
political psyology in mu of the world means that national
identity and national commitment are going to remain strong. is is
especially so since states politicize education and tea nationalism,
and they consciously advance paroial and even auvinistic
nationalism by pledges of allegiance, waving of the national flag and
singing of the national anthem at sporting events, and so on, and so
on.
e hope, therefore, is not for world government based on identity
as world citizens. e hope, rather, is for a liberalized nationalism in
whi identification with nation is melded with a due appreciation
of internationally recognized human rights. In that regard I would
say intuitively the class is about 20 percent full. And if we are luy,
in the next century or so we might get it to 50 percent full. e hope
therefore is for a continuation of “determined incrementalism.”30
Hopgood, in his important, readable, and oen acerbic analysis of
the fate of human rights completely leaves out a crucial, maybe even
decisive factor. is is the extent to whi non-Western citizens of
this or that nation buy into the human rights and humanitarian law
paradigms—despite the laer’s Western connections. ere are, in
fact, more than a few Syrians who have given their lives in the
932
contemporary civil war there in order to carry out Henry Dunant’s
vision of neutral humanitarian assistance—44 from the Syrian Arab
Red Crescent killed as of mid-2014. ere are, in fact, more than a
few Chinese who have been sent to prison, or even been killed, by
their government, for demanding aention to human rights—who
knows the exact number. Some of those tortured in Egypt like
Ahmed Seif became human rights campaigners.31 ere are non-
Western states like South Korea and Indonesia that have evolved
from autocratic repression to considerable aention to human rights
without being occupied and controlled and reoriented by the United
States or other Western power. In fact, public opinion polls show
strong support for human rights across nations of different cultures.
ere are numerous non-Western human rights NGOs, like
Muslim Women for Human Rights, who are seeking to transform
their local political culture in a liberal direction. Frequently they
cooperate with, and receive funding from, NGO partners based in
the West. is can be a potent partnership over time.32 So whereas it
is oen Amnesty International or Human Rights Wat that gets
quoted in Western media, it is likely to be the numerous non-
Western NGOs that make a difference especially in the non-Western
world. For human rights to have local effect, some local person,
persons, or groups need to adopt the international standards and
push them in local politics.33
Two problems loom large in this process. 1) Western and non-
Western NGOs do not always have the same agendas and priorities,
with locals oen stressing poverty and its alleviation and those
residing in New York and London pushing civil-political rights and
criminal justice. 2) Illiberal elites are in a position to disrupt
progress, as they have in Russia and Egypt, inter alia, bloing
outside funding for local human rights advocates and kiing
expatriates out of the country.
e key point is that human rights are not so mu bestowed from
heaven as they are wrestled into reality by a tough political struggle.
933
Nelson Mandela showed this. is process requires significant
constituents to fight for rights in local politics by contesting military
and other autocratic rule, fielding candidates via political parties,
lobbying for welfare rights, pressing for a reduction in military
spending to the benefit of health and education, pressing for an
even-handed rule of law, and so on, and so on, and so on. ere is of
course a role for outsiders to play in this process. But until locals
press for rights in significant ways, those rights are unlikely to
advance as policy and practice.
Unfortunately, examples like South Korea and Indonesia are
counter-balanced by examples like Egypt. At the forefront of the
Egyptian revolution of 2011 were secular liberals demanding the
usual rights centered on civil and political freedoms, including
especially media freedom, with mu aention to gender equality.
e movement for ange was then captured by the well-organized
and mostly illiberal Muslim Brotherhood whi was in favor of
elections but also opposed to mu of the corpus of international
human rights. And ultimately the secular and autocratic military
launed a successful counter-revolution whose repression made the
Muslim Brotherhood look positively liberal. e Obama
Administration, whi as in other cases laed a strategy for dealing
with affairs, eventually supported the counter-coup (without calling
it that) and did not stand firm for democratic and progressive
ange. e Egyptian secular liberals were swept aside.
ere is, of course, no guarantee of a teleological history in whi
human rights automatically advance. at should be clear when one
recalls that Putin replaced Yeltsin, and al-Sisi controls Egypt. In Iraq
Prime Minister al-Maliki pursued a narrow, sectarian, and autocratic
agenda, whi alienated Iraqi Sunnis and Kurds. His record was so
counter-productive to stability and progress that even his Iranian
baers abandoned him in the face of Sunni extremist gains. Al-
Maliki was no Mandela. More generally, brief moments of promise
may be lost (repeatedly in Russian history) as progressives prove
934
politically inept (ElBaradei?, Kerensky?). ere are liberals in every
country who support human rights, whether in Kenya or Myanmar.
A crucial question is whether they can maneuver with adroitness in
local politics, while maintaining support from international NGOs
and helpful governments. ere are usually liberal transnational
advocacy networks in play, and the key question is their political
influence vis-à-vis the ever present illiberal factions.
I will stress a further point in this brief essay that only scrates
the surface of a complex reality. Liberals usually have a good ance
of advancing their values when an existing repressive regime has
discredited itself through poor performance. at is, negative
learning plays a large role in events. Mubarak fell not so mu
because he was repressive as because he was repressive and
incompetent at providing jobs and a decent life for rank and file
Egyptians. Mu of the demand for increased freedoms in Egypt
masked a deep demand for beer economics. e same was true in
Tunisia. e Argentine junta fell not simply because it was
repressive but because it was repressive and lost the
Falklands/Malvinas war to Great Britain. (e other side of the coin
is, if all democracies manifested the terrible finances of Argentina or
Greece, the demand for civil-political rights would wither away and
all would prefer the so autocracy of Singapore.) ere is a sense of
legitimacy that comes from competence, and this can work against
both autocrats and democrats (as social democrats in Weimar
Germany came to learn all too well). Context maers, and
awareness of the incompetence of autocrats is prime time to push
human rights.
Finally, there is a certain serendipity in historical evolution that
makes systematic analysis and prediction precarious. at the
relatively liberal Yeltsin turned out to be an erratic drunk, and that
the man selected as his successor, Putin, was a mendacious autocrat
who prioritized reconstruction of a Soviet-like regime, was
altogether unknown at key points. e Yeltsin people had lile
935
understanding of the man they elevated. Few predicted that a
Burmese military man by the name of ein Sein would turn out to
be interested in major anges in a somewhat more liberal direction,
as was true of Gorbaev (in limited ways) in the old Soviet Union.
e advance of human rights protections is contingent on context
and agency, with mu uncertainty.
936
Notes
1 Stephen Kinzer, All the Shah’s Men (New Jersey: John Wiley, 2003).
2 Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton
University Press, 1999).
3 Stephen Hopgood, The Endtimes of Human Rights (Ithaca: Cornell University Press,
2013; Emilie Hafner-Burton, Making Human Rights a Reality (Princeton: Princeton
University Press, 2012).
4 Ja Donnelly, “State sovereignty and international human rights,” Ethics &
International Affairs, vol. 28, no. 2 (2014), 225–38.
5 Space limitations constrain my discussion of the history of the idea of human rights. If
one looks at the core argument that all individuals have inherent and fundamental
rights, and the purpose of public authority is to implement those rights, this belief was
well articulated by European intellectuals in the Enlightenment era imprecisely defined
as encompassing ‘liberal’ thinkers sometime between the 17th and 18th centuries. (e
exact dates and participants remain contested.) ese thinkers, like Loe and Voltaire
and others, then influenced political developments in America and France in the 1770s
and 1780s. ese were the first two nations to try to base national governance on human
rights ideas. is thumbnail sket certainly does not rule out other influences from
ancient times, or the Protestant Reformation, or the development of the printing press,
etc. See further Stefan-Ludwig Hoffmann, ed., Human Rights in the Twentieth Century
(Cambridge: Cambridge University Press, 2011). See also Lynn Hunt, Inventing Human
Rights (New York: Norton, 2007). Whatever the nuances, a strong case can be made for
the argument that contemporary forms of human rights were a Western invention as
per Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell
University Press, 2013). Other areas and cultures developed parallel ideas that might be
folded in—for example, the wise ruler paid aention to the needs of his subjects, or one
should treat others as one wanted to be treated. Space limitations also constrain my
discussion of the U.N. and human rights. ere is evidence that on a given day FDR,
937
under whom planning for the U.N. Charter started, did indeed believe that the national
practice of human rights was linked to international peace and security. See Jan Herman
Burgers, “e road to San Francisco,” Human Rights Quarterly, vol. 14, no. 4 (1992), 447–
77. ere is also evidence that on other days FDR was a realist who saw the U.N. and its
Security Council as mainly a Great Power club that would manage international affairs
according to the exercise of power whatever international law might say about personal
rights. Aer all, the Charter says in Article 103 that the Security Council can do
whatever is necessary to maintain international peace and security, other state
obligations notwithstanding. On FDR as a realist see further John Ruggie, Winning the
Peace (New York: Columbia University Press, 1996). Historians agree that FDR was a
complex individual whose policy views were not always aracterized by consistency. It
might even be true, as some historians contend, that FDR was a third-rate intellectual
but had first-rate political instincts. (One might be non-partisan and say the same of
Ronald Reagan.) In any event, the United Nations Charter contained both emphases: a
realist focus on the exercise of power through the Security Council, and a liberal focus
on human rights through other organs and agencies.
6 Glenda Sluga, Internationalism in the Age of Nationalism (Philadelphia: University Penn
Press, 2013).
7 G. John Ikenberry, Liberal Leviathan (Princeton, NJ: Princeton University Press, 2012);
Miael Mandelbaum, The Case for Goliath (New York, Public Affairs, 2005).
8 Makau Mutua, Human Rights—A Political and Cultural Critique (Philadelphia, PA:
University Penn Press, 2008). See also David Rieff, A Bed for the Night (New York,
Simon & Suster, 2002).
9 David P. Forsythe, “Review of Hafner-Burton,” Human Rights Quarterly, vol. 35, no. 4
(2013), 1042–8.
10 Samuel Moyn, The Last Utopia (Cambridge, MA: Harvard University Press, 2012)
stresses 1970 as the take-off date, not 1948.
11 Kathryn Sikkink, The Justice Cascade (New York: Norton, 2011).
12 International Justice Resource Center, www.ijrcenter.org.
13 Amnesty International, “Universal Jurisdiction,” 2012.
938
14 For an overstatement about the impact of U.J., see Philippe Sands, Torture Team
(London, Palgrave-Macmillan, 2008).
15 On double standards in the practice of international criminal justice see Forsythe, “e
U.N. Security Council and response to atrocities,” Human Rights Quarterly, vol. 34, no. 3
(2012), 840–63. See also Klaus Bamann and Aleksandar Fatic, The U.N. International
Criminal Courts (London, Routledge, 2015).
16 Martha Minow, Between Vengeance and Forgiveness (Boston, CO: Beacon Press, 1998).
17 Gareth Evans, The Responsibility to Protect (Washington, D.C.: Brookings, 2008).
18 It should be noted that the practice of R2P in Libya le a great deal to be desired.
Neither Libyans nor outsiders wanted a long international administration as had
occurred in Bosnia. Libya degenerated into regional and local factions, with arms and
undocumented persons flowing across international boundaries.
19 Fareed Zakaria, “e rise of illiberal democracy,” Foreign Affairs, vol. 76, no. 6 (1997), 22
–43.
20 Robert Kagan, Of Paradise and Power (New York: Vintage, 2002).
21 Adam Prezworski et.al., Democracy and Development (Cambridge: Cambridge
University Press, 2000).
22 Andrew Gilmour, “e future of human rights,” Ethics & International Affairs, vol. 28,
no. 3 (2014), 239–50.
23 Bernard Kouner quoted in NYT, December 11, 2008, p. A8.
24 Darius Rejali, Torture and Democracy (Princeton, NJ: Princeton University Press, 2009).
25 On how assumptions of cultural and racial superiority lead to human rights violations,
see Helen M. Kinsella, The Image Before The Weapon (Ithaca, NY: Cornell University
Press, 2011).
26 omas Pogge, World Poverty and Human Rights (Cambridge: Polity Press, 2008).
27 Moyn, op.cit. Some areas could benefit from more nationalism to forestall fragmentation
and violent disputes as in former Yugoslavia circa 1990, Mali and Yemen and Congo
today, eastern and western and southern Libya today and tomorrow, etc., etc., etc. e
939
right kind of nationalism, a liberal nationalism, might be a relatively good thing as a
blend of commitment to the national group while respecting international standards.
28 Mark Juergensmeyer, Terror in the Mind of God (Berkeley and Los Angeles: University
of California Press, 2003).
29 David Fromkin, A Peace to End All Peace (New York: Henry Holt, 2009).
30 Philip Alston, “Against a world court for human rights,” Ethics & International Affairs,
vol. 28, no. 2 (2014), 212.
31 New York Times, August 29, 2014.
32 Margaret Ke and Kathryn Sikkink, Activists Beyond Borders (Ithaca, NY: Cornell
University Press, 1998); and omas Risse, et.al., The Persistent Power of Human Rights
(Cambridge: Cambridge University Press, 2013).
33 Beth Simmons, Mobilizing for Human Rights (Cambridge: Cambridge University Press,
2009).
940
Selected Bibliography
Alston, Philip. “Against a world court for human rights,” in Ethics &
International Affairs vol. 28, no. 2 (summer 2014), 212.
Burgers, Jan Herman. “e road to San Francisco,” in Human Rights
Quarterly, vol. 14, no. 4 (November 1992), 447–77.
Donnelly, Ja. Universal Human Rights in Theory and Practice.
Ithaca, NY: Cornell University Press, 2013.
Donnelly, Ja. “State sovereignty and international human rights,”
in Ethics & International Affairs vol. 28, no. 2 (2014), 225–38.
Evans, Gareth. The Responsibility to Protect. Washington, D.C.:
Brookings, 2008.
Forsythe, David P. “e U.N. Security Council and response to
atrocities,” in Human Rights Quarterly vol. 34, no. 3 (2012), 840–
63.
Gilmour, Andrew. “e future of human rights,” Ethics &
International Affairs vol. 28, no. 2 (2014), 239–50.
Hafner-Burton, Emilie. Making Human Rights a Reality. Princeton,
NJ: Princeton University Press, 2012.
Hopgood, Stephen. The Endtimes of Human Rights. Ithaca, NY:
Cornell University Press, 2013.
Kinsella, Helen M. The Image Before The Weapon. Ithaca, NY:
Cornell University Press, 2011.
Matua, Makau. Human Rights: A Political and Cultural Critique.
Philadelphia, PA: University of Pennsylvania Press, 2008.
Minow, Martha. Between Vengeance and Forgiveness. Boston, CO:
Beacon Press, 1998.
Moyn, Samuel. The Last Utopia. Cambridge, MA: Harvard
University Press, 2013.
941
Pogge, omas. World Poverty and Human Rights. Cambridge: Polity
Press, 2008.
Rejali, Darius. Torture and Democracy. Princeton, NJ: Princeton
University Press, 2009.
Risse, Sikkink, Ropp. eds. The Persistent Power of Human Rights.
Cambridge: Cambridge University Press, 2013.
Sikkink, Kathryn. The Justice Cascade. New York: Norton, 2011.
Simmons, Beth. Mobilizing for Human Rights. Cambridge:
Cambridge University Press, 2009.
Sluga, Glenda. Age of Nationalism. Philadelphia, PA: University of
Pennsylvania Press, 2013.
Zakaria, Fareed. “e rise of illiberal democracy,” in Foreign Affairs
vol. 76, no. 6 (1997), 22–43.
942
28
On the Local Relevance of Human
Rights
Koen de Feyter1
943
Introduction
Groups in the global South appeal to human rights when their
human dignity is under threat. is piece investigates when and
why they do so, and what are their ances of success?
During the decades following the adoption of the Universal
Declaration of Human Rights, human rights resear was primarily
legal in nature. At the international level, the legal discipline was
crucial in designing the human rights treaty system, and in
equipping the United Nations political bodies with credible review
procedures. Law was also important in ensuring that the
international obligations of States were properly incorporated into
domestic legal systems. Although work remains in both areas,
aention gradually shied to the practice of human rights, leading
to interdisciplinary investigations of the local use of human rights by
rights holders. is type of resear approaes the domestic and
international normative framework from below, and critically
questions its effectiveness.
Earlier conceptual and methodological work is illustrated by
scaered findings from largely unpublished and incomplete socio-
legal resear on the use of human rights by local groups in Asia and
Africa.2,3,4,5 One early lesson from the fieldwork is that no story is
alike. Hopefully some of the early findings are nevertheless relevant
to those seeking human rights protection in North Africa and in the
Middle East.
944
Protecting human dignity locally
In a common phrase, the international human rights covenants
provide that “human rights derive from the inherent dignity of the
human person.”6 e Universal Declaration of Human Rights adds a
social dimension: human rights aim at the promotion of social
progress and beer standards of life in larger freedom.7
With the exception of the right to self-determination,
international human rights treaties frame human rights as
instruments that protect the individual interest. When individual
human rights claims are accommodated, however, the interest of all
those that share the claimant’s predicament are protected. When the
right of a slum dweller not to be evicted is recognized by a court of
law, all others in the slum are entitled to equal protection, and many
in other slums in the land, and perhaps in the world, may benefit. A
rights-based approa to development seeks to li the society as a
whole out of poverty, and particularly those on its margins. It makes
sense then to perceive of human rights as instruments seeking to
ensure a life in human dignity for all.
Treaties offer abstract human rights definitions that are applicable
in a variety of (sometimes unforeseen) circumstances. e right to
privacy is a codified global right, but is referred to in treaties
through abstract language. Specific meaning needs to be given to a
right when it is applied in a concrete situation. e global right
needs to be interpreted in a local context, in su a way that it
effectively protects human dignity.
How can this be done? Upendra Baxi offers the following insight:
the primary authors of human rights, he argues, are not States, but
peoples and communities. eir resistance to (abusive) power:
945
[…] at a second order level [is] translated into standards and norms adopted by a
community of states. In the making of human rights it is the local that translates into
global languages the reality of their aspiration for a just world.8
It is crucial that a global right to privacy was laid down in
international treaties as an entitlement of every individual. But what
constitutes a violation of that right at the local level should be
informed by what the primary authors in a given society perceive of
as an invasion of privacy that offends their human dignity. It is at
the local level that having human rights either proves vital or
illusory. Localization of global human rights occurs when human
rights needs as formulated by local groups are taken as the starting
point for the interpretation and the further codification of global
human rights norms.
Local groups are understood here as any form of open
organization based on the identification of a common need or
interest, whether geographically located, rooted in a common
experience, or sharing a social status.9 By going through a human
rights crisis, they build up knowledge, a usage of human rights
linked to concrete living conditions. e recording and transmission
of this knowledge (regardless of whether the appeal to human rights
was successful are not) is essential if human rights are ever to
develop into an effective global protection tool. Human rights
solidarity should not be based on an unequal one-way relationship
between those who offer solidarity and those who benefit from it,
but on a more reciprocal model, “constructing the grievances of
physically, socially and culturally distant people as deeply
intertwined.”10
946
What is a human rights claim?
A human rights claim is oen equated with a claim based on
international human rights law. States are bound by the human
rights treaties that they consented to, and so a claim insisting on
compliance with the treaty is no more than a claim for consistency.
States criticizing the domestic human rights performance of other
States use the argument all the time.11
Local human rights claims, however, are not necessarily based on
international human rights treaties even if claimants use human
rights language. ey reflect a sense of injustice that is expressed
through human rights language.12 Human rights users may not
know international or constitutional human rights law—but they
know what human rights mean to them. e codification of human
rights in international law does not deprive peoples and
communities of primary authorship. As Mark Goodale has argued:
there is a need to ‘decenter’ human rights law, and to perceive of
social practice as contributive to the idea of human rights.13 In order
to value the normative contribution of social practice, in our
resear we have ‘defined’ human rights claims, as claims framed in
human rights language that insist on accountability of a duty bearer.
e use of human rights language situates a local claim broadly
within the global human rights framework, as set out in the
Universal Declaration of Human Rights and subsequent treaty law.
rough the use of human rights language, claimants express the
view that a particular action threatens their human dignity in su a
way as to violate their human rights. By using the language, they
also appeal to domestic and external actors within the human rights
regime for support.
947
Duty bearer accountability is the second essential element of a
human rights approa. In human rights treaty law, the duty bearer
is usually the State that exercises jurisdiction over the contested
event. Whenever the State breaes an international human rights
obligation, the State incurs responsibility for an internationally
wrongful act, and must make reparation for the injury caused. Local
human rights claimants may well target additional duty bearers.
ey may perceive of any agent—the domestic State, another State,
an international organization, or a private actor su as a company,
an NGO, a drug lord, a landowner—as posing a threat to their
human dignity and as a violator of human rights, and demand a
ange in conduct and/or remedial action. In law, it may or may not
be possible to hold non-State actors responsible for human rights
abuse. Accountability is a mu looser concept than responsibility,
suggesting as a minimum that the duty holder needs to justify his
conduct in human rights terms; should accept that the conduct is
assessed by a sufficiently independent third party, and should engage
in some form of remedial action when the conduct is found wanting.
Local claims that make no use of human rights language and that
do not insist on duty bearer accountability are not human rights
claims.
Donors sometimes make the argument that they are engaging in
human rights work without saying so. A World Bank/OECD review
of donor practices, Integrating Human Rights into Development
explains that some donors prefer to use other descriptors than
human rights, su as ‘protection’ or ‘empowerment’ or ‘good
governance’ but that aspects of their policies are “consistent with
what a human right based approa would call for.”14 An ‘implicit’
integration of human rights into development is said to occur. In
su instances donors are using other instruments than human rights
to aieve a similar aim. is is perfectly fine in itself. In some
circumstances, other approaes may be more effective in protecting
human dignity. We learn nothing about the effectivities of human
948
rights interventions or claims, however, from instances in whi the
language is not used. Nor do we learn anything about the potential
added value of a human rights approa to development from
interventions that steer away from using the terminology. If the
descriptor ‘human rights’ is not used, it is not human rights, but
something else.
A second example may further clarify the maer. It is taken from
an Iranian solar’s recent PhD on rape in Islamic and international
law.15 Hajar Azari finds that in contemporary Iran only a limited use
can be made of international law. Before the revolution Iran ratified
a number of international human rights treaties without
reservations, including both the ICCPR and the ICESCR. Aer the
revolution, human rights treaties were ratified with a general (and
most likely impermissible) reservation making the treaties subject to
internal law. During the ICCPR State reporting process, the Iranian
delegation nevertheless “felt bound to emphasize that although
many articles of the Covenant were in conformity with the teaings
of Islam, there could be no doubt that the tenets of Islam would
prevail whenever the two sets of laws were in conflict.”16
Some limited use has been made of both ICCPR and CRC in
domestic cases.17 Rape cases are, however, dealt with on the basis of
Iranian criminal law only. According to Azari, the legal culture in
Iran is su that judges do not apply human rights treaties when
they deal with sexual violence. e issue is taboo, and the
mainstream interpretation of Islamic law in Iran in some respects
discriminates against women.18 Invoking international human rights
law in sexual violence cases may well create additional problems for
victims: the “current political situation makes it impracticable for
victims to aieve their rights” by invoking human rights treaties in
domestic judicial proceeding.”19,20 e beer alternative is to opt for
solutions “that are workable and of immediate practical use” to
victims.21 Improvements in the protection of rape victims, she
argues, have to come from within Islamic law and need to be
949
supported by Islamic authorities. e use of domestic methods leads
to beer results in Islamic countries, because “Muslims tend to think
that they are faced with a oice between their identity and belief on
the one hand and a commitment to human rights on the other.”22
Islamic jurisprudential teniques have to be used if effective
protection of human dignity is to be aieved.
While taking no issue with the proposed approa, it does not lead
to an infusion of local content into human rights. It is Islamic law
that stands to be enried by the approa, not the interpretation of
human rights law. It addresses the community of Muslims that is
governed by Islamic law, rather than the global community of
women. Human rights can only be localized if they are actually
used. is would occur if women in Iran would be asked how
human rights (su as the right to fair trial, the right to a remedy,
and the principle of non-discrimination) should be given content in
their society so that they are beer protected against sexual violence.
is local content should then inform the decisions of domestic
judges and of policy-makers, thus indigenizing the human rights
norm. In the current political context, women in Iran may well be
impeded from making su a potentially valuable contribution to the
human rights discourse.
950
Human rights awareness
Human rights claims will only emerge if the claimant(s) perceive of
the situation that they are in as a threat to their human dignity and
are aware of human rights as an instrument they could potentially
use to seek protection.
Felstiner et al. point out that people facing substantial distress and
injustice do not always perceive of their situation as injurious. e
capacity to describe a particular experience as a threat to human
dignity depends on factors su as class, level of education, work
situation, social networks, etc. e sense of injury ‘may be self-
induced or externally manipulated.’23 It is a further step to aribute
the injury not to one’s own failure, but to a duty holder required to
act.
One has to be aware of human rights to be able to use them. A
group may have an indigenous concept of human rights or have
absorbed the global language of human rights. Case-by-case socio-
legal fieldwork, therefore, is required to determine whether an
indigenous human rights concept exists. Researers must be versed
in the local language, and able to determine whether the local
concept includes both rights and duty holder. Our preliminary
resear in India and the Democratic Republic of the Congo tends to
show that the group’s (historical) perception of the State may be an
important factor. When investigating the use of the right to water
and sanitation in New Delhi, slum dwellers claimed that, as they
were human beings, they had a haq (an Urdu term) to drinking
water that the State needed to fulfill. For some respondents this State
duty leads to an anti-privatization stance. As companies were not
bound by haq, they did not wish to rely on private water suppliers.
Further resear will need to determine whether the concepts of haq
951
and human rights correspond. Early resear findings from rural
villages in the Bas-Congo24 showed that villagers felt that drinking
water should be accessible to all because everyone needs water, and
that it should be made available when it is not. But no actor was
identified against whom this right could be claimed. In everyday life,
water becomes available either as a result of self-help or as a gi
from a donor or a local authority. ere is lile experience of the
State as a social service provider in DRC history, and so claiming
rights against the State appears illusory.
Local groups may be aware of constitutional or international
human rights. is is more likely when the group is connected to
groups in a similar situation (enabling it to detect common causes
affecting all) or to groups with a specific commitment to human
rights. Local human rights NGOs potentially play an important role
in ‘translating’ the group’s experience into human rights language.
Ideally, they function:
[A]s an organization that forms a vital component of civil society and whi devotes its
resources to helping marginalized entities on the dependence structure to be politically-
conscious so as to be in a position to articulate, organize and assert claims and protect
their rights from further abuse.25
Other sources of information may include the media—radio and
television may well be available in poor households, and introduce
the ‘global’ language—and also local politicians that use human
rights to either criticize or defend government policies. All
translators have their own agendas and affect the original claim.
e Kallyanpor Pora Bosti slum in Dhaka (Bangladesh) was
established in 1988 in an open field of land owned by the
government. Over the years several evictions were aempted but
successfully resisted, including through legal action by a public
interest law firm connected to strong local human rights NGOs. In
April 2015, mayoral elections were about to take place in Dhaka,
keeping the men occupied, but also creating the space for a focus
952
group26 with ten women that had lived in the slum for many years
in conditions of extreme poverty. e women knew the term ‘human
rights’ (manob odhikar in Bangla). Local human rights and social
service NGOs advising the slum dweller’s own community
organization “use this kind of word.” e most important rights
were: “the right to receive proper payment for my work; women’s
rights; ild education was a human right; early marriage is a human
rights problem; a husband beating a wife is a violation of human
rights.” e women had a right to live in the slum: “e land is
government property; we have no other land to live; it is my right …
If the government evicts us, there is nowhere to go: I will have to
live on the road or under a tree.” ey were going to vote: “I will use
my ID card. It’s a big thing for me.” e only relationship they had
with the government was as voters. Before the vote, they could get
things done, even if they had not been so successful this turn around.
e women gave their own content to the received human rights
language, based on their experience as women, mothers, and wives
and as landless people. On some issues, domestic law offered
support, on others mu less so. International human rights law
remained invisible. One woman said: “Many foreign people come
here, but still we do not have ange.” e women sensibly captured
the language of human rights for their own defense, fusing the
global terminology with their own sense of injustice. Su a fusion
may be key to an effective protection of human dignity.
953
To claim or not to claim
Human rights awareness does not suffice. Someone needs to decide
to make a human rights claim. Power structures within the group
come into play: who decides what claim to make? Does the claim
reflect gender-based social hierary? If other agents apart from the
local group are involved power issues within the network will also
have an impact.27 Factors both internal and external to the group
explain why a claim was made, or not made.
Parents of rural-urban migrant ildren in the Shapingba District
of Chongqing (China (PRC)) are not making claims based on the
right to education to aieve access for their ildren to beer
sools.28 China (PRC) has ratified various international human
rights treaties incorporating the right to education and the
prohibition of discrimination.29 e right to education also appears
in the Constitution of China.30 Under the hukou system, the right to
education should be exercised at the place of household registration.
For rural-urban migrant ildren this is their place of origin in the
rural area, not the city they move to with their parents. In
Chongqing, local authorities aempted to deal with massive
migration—the central government encourages rural-urban
migration—by allocating certain sools to migrant ildren. Public
perception is that the quality of these sools is low. Rural-urban
parents with sufficient means paid (now illegal) fees to get their
ildren into beer sools.
During interviews, some migrant workers stated that they were
being discriminated against in the educational system, and blamed
various public institutions. ey were not, however, making human
rights claims. Here is a summary of the reasons they gave:
954
i. feeling powerless, la of confidence that action would
ange anything
ii. fear that actions would have negative impact on the ild
iii. not making fuss about lile things
iv. perception by others/not being the only one
v. perception that payment of fees is part of parental duty
vi. avoiding trouble
vii. la of money
viii. la of personal network (guanxi).
In the view of the parents, the realization of the right to education
requires personal sacrifice. e parents deem themselves responsible
for the education of their ildren, and consider it their duty to
invest the lile money they have to gain access to good sools.
Although rural-urban migrant parents share the same predicament,
individual competition within the group is fierce. External factors
are important as well. Local politics offers lile opportunity for
groups to mobilize for human rights. In the absence of freedom of
association, no independent human rights NGO is available to offer
local support. e families compete to cope with discrimination by
devising informal personal strategies.
For vulnerable or exposed groups, human rights-claiming requires
collective action and organization. A group discussion with
survivors of the Rana Plaza factory collapse offered a vivid
illustration.31 e survivors were keen to give an account of the
events, and had no difficulty in aributing responsibility for the
disaster to the building owner and the owner of the garment factory.
All received some form of compensation from the Rana Plaza trust
fund, but they agreed that justice had not been done. e owners
were not in jail, and their incomes had dropped. Factories did not
want to give jobs to Rana Plaza survivors; some survivors were no
longer physically or psyologically able to work in a garment
factory. ere was no prospect of long-term support.
955
External factors were all in all conducive to human rights
claiming. Although Bangladesh faces a whole range of human rights
issues, freedom of expression and association are available to a
certain degree. e Rana Plaza collapse aracted massive
international aention from other States, intergovernmental
organizations and NGOs not least because many of the garment
factories in the building produced for European and American
brands.32
e interviewees, however, did not wish to organize. If they did,
“the key person will be corrupt.” Widespread corruption in the
society affected their belief that they would be able to unite for the
common good. ey had not joined a trade union either, because
“they ask money for their services and they are not allowed inside
the factories anyway.” As a result, none had taken an individual or
collective claim to court: they had “no money to run a case,” “did not
know any NGOs and had received no legal support,” and in addition
“the men of the garment factory owner were still around, and they
would threaten your life if a claim were made.” e women in the
slum in Dhaka referred to earlier also faced serious security
problems, and aracted less domestic and international aention
than those affected by the Rana Plaza collapse. But within their
group there was sufficient trust and cohesion to draw strength from
their joint experience and stand up for their rights. Of course, no
conclusions can be drawn from these two conversations with respect
to slum dwellers and garment workers generally in Bangladesh.
Human rights claims by local groups are constitutive of the local
practice of human rights. is local practice is the authentic
contribution to the global human rights discourse from the relevant
society. e local practice cannot emerge without freedom of
expression and freedom of association. Only if they speak are the
primary authors able to join the global conversation, and thus
contribute to an interpretation and further development of human
956
rights at various levels of regulation that responds appropriately to
their needs.
957
State response
Progress in human rights protection does not depend exclusively on
the claimants. e response by the duty bearer determines the
practical outcome of a human rights claim. Responses come in
various shapes and sizes depending, among other things, on the
nature of the duty holder that is held accountable. Legal responses
include legislative ange and court judgments. Gready found that
most international human rights campaigns were based on ‘mixed
actor coalitions,’ NGO-led but involving a broad range of other
parties including business, governments, IGOs, and parts of and
personnel within these actors.33 Alliances with governments proved
to be allenging, but the trend was that NGOs increasingly work
with sympathetic States, or with sympathetic individuals within
States.
As Rajagopal points out, in international law, ‘texts of resistance’
by civil society actors are not a source of law. Civil society actors
la the democratic legitimacy required to dra law and to exact
compliance.34 Law requires the involvement of State institutions
that, at least in theory, do enjoy democratic legitimacy. States have a
mandate to exercise sovereignty responsibly through the adoption of
legislation that provides effective human rights protection to the
primary authors.
In international human rights law the State has a single, unified
international legal personality. e State is equally responsible at the
international level irrespective of whether or not a violation occurs
as a consequence of action by the legislative, executive or judicial
branes. As a domestic actor in human rights, the State oen does
not act as a homogeneous actor at all.
958
It is impossible to generalize about the potential for alliance-
building within domestic States. In States with mixed human rights
records, ministries with a cross-cuing human rights responsibility
su as justice or the interior may be harder to ally with than
ministries with a more developmental mandate, su as those
dealing with the advancement of women or youth. e executive
may deem some human rights claims confrontational—typically
those alleging violations of civil and political rights by law
enforcement personnel—and welcome others, e.g. on improving
service provision to the poor. It may be strategically important to
build alliances with the executive on non-confrontational human
rights issues in order to keep the human rights discourse alive in
domestic politics, and to simultaneously join forces within civil
society to take on confrontational human rights issues that are
difficult or dangerous to address. In principle, parliament and the
judiciary provide important es and balances on the exercise of
power by the executive, but their independence varies from country
to country, and they are not monolithic institutions either. Some
judges may be willing to give domestic effect to human rights. Some
members of parliament may be keen to introduce bills building on
local human rights experiences.
Domestic guardian institutions are well placed to act as bridge
builders between the government and civil society. ey include
national or sub-national human rights institutions,35,36 ombudsmen,
anti-corruption commissions, election commissions, etc. e Paris
Principles37 require that national human rights institutions are
pluralist in nature, and thus representative of human rights civil
society. ey shall receive adequate funding to have their own staff
and premises, in order to be independent of the Government and not
subject to financial control.
e first public agents that human rights claimants encounter may
well be local authorities. Local authorities are potential allies for
human rights claimants: they may be less influenced by national
959
interest concerns; they may stand closer to citizens; they may offer
qui and cost-effective solutions.38 In a number of countries human
rights cities have emerged that have osen to explicitly base (some
of) their policies on international human rights law. A recent study39
concludes that human rights cities initiatives offer the potential of
binding people from very different bagrounds together, but also
face the permanent threat of politicization.
Within a country, regional circumstances may vary. When
sovereignty is contested, the process of human rights claiming and
accommodation is affected by factors that do not come into play
elsewhere. In regions where groups compete with the government
for the exercise of sovereignty, human rights claimants are faced
with a political oice on who to turn to for protection.
Paradoxically, appeals to government institutions for human rights
protection may be perceived of as support for the government’s
exercise of power.
960
Global involvement
A significant advantage of claiming human rights is that the use of
the term draws international aention. Since the adoption of the
United Nations Charter and the subsequent development of human
rights treaty law and institutions, human rights are of legitimate
concern to the international community as a whole.
Groups that are marginalized within their domestic State, or that
face a restrictive political environment require external support to
reset the domestic balance of power. Kaldor argues that international
involvement is necessary:
[T]hose who are trying to exert a constructive influence over local life in a globalized
world, can only succeed if they have outside support and access to those international
organizations that can influence governments and global regulatory processes.40
Global involvement also brings risks. External actors have their own
agendas that may deflect from the needs at the origin of the local
human rights claim. e accountability of external actors to local
human rights claimants tends to be woefully limited.
Ideally, development partners (donors) support the capacity of
both the rights holders and the duty bearers, with a view to
contributing to domestic human rights policies that adequately
respond to local needs. In a human rights approa to development,
a focus on the most vulnerable or exposed makes eminent sense.41
In-country presences (i.e. delegation or embassy staff) should be
mandated to engage with vulnerable and exposed groups, and to
guide headquarter policy accordingly. Interaction is a prerequisite
for ensuring that the development partners’ interventions accurately
reflect the concerns of vulnerable or exposed groups, and that their
961
interventions are locally legitimate, i.e. enjoy the support of the
rights holders.
e United Nations human rights system fulfills both a protection
and standard-seing role. U.N. bodies offer support to local human
rights claimants when the domestic response falls below
international standards. e human rights treaty bodies and special
procedures of the U.N. Human Rights Council are a last resort, when
an appeal to more accessible and powerful monitoring institutions at
the domestic and continental levels fails. Vulnerable or exposed
groups require networking to access these bodies.
U.N. bodies may become aware of a human rights situation
without direct contact with the people affected. Discrimination of
rural-urban migrant ildren in education in China has been taken
up, because global human and ildren’s rights NGOs monitor the
education system in China and provide information to the U.N.
bodies. In the context of the State reporting procedure, the
Commiee on Economic, Social and Cultural Rights found that de
facto discrimination of migrant workers continued, including in the
field of education. e Commiee recommended the abolition of the
household registration system.42 e Commiee on the Rights of
Child recommended that China should ensure the accessibility of
quality education for all ildren in mainland China ‘particularly
ildren of migrant workers, ildren from ethnic minorities and
refugee and asylum-seeking ildren.’43 Both Commiees questioned
the State’s commitment to raise human rights awareness within
China, including on the findings of the U.N. human rights bodies.44
Concerns were expressed about the obstacles faced by NGOs and the
limited scope for human rights defenders and journalists to report,
inter alia, on ildren’s rights violations due to continuous threats,
police harassment, enforced disappearances, and arrests of human
rights defenders.45
ese findings, however, do not rea the rural-urban migrant
families in Chongqing. A disconnect occurs between the global and
962
the local level. e most recent visit of the U.N. Special Rapporteur
on the Right to Education to China dates ba to 2003.46 e
awareness of U.N. human rights reports in local society is next to
non-existent. No intermediaries are available between the local
claimants and U.N. bodies. e Government of China does not
engage in a domestic debate on U.N. human rights activities in
China.
As to international law-making on human rights, no other global
institution47 but the United Nations is available. At the U.N. Human
Rights Council, States negotiate to rea agreement on new
standards. In this intergovernmental body, the focus is not on the
experiences of local human rights claimants. ere are few
documented cases where local groups have succeeded in seing the
agenda for the development of new international human rights
norms.48 Local groups do not easily invest their scarce human and
financial resources in meanisms that are not designed to offer
redress at the local level, unless they are interested in amplifying
their claims in an overall strategy for ange at the national and
international level. Vandenbogaerde finds that at the Human Rights
Council the Advisory Commiee and the special procedures are
most likely to take up new norms and instruments proposed ‘from
below.’
963
Success and failure
What determines success or failure of a human rights claim?
Arguably, a human rights claim is successful when conditions
improve to su an extent that a life in dignity is aieved. It may be
difficult to establish that living conditions of vulnerable and exposed
people have improved as a consequence of the use of human rights,
for la of ex ante data. Marginalization also occurs in statistics. If ex
ante and ex post data are available, it is certainly useful to document
them, as impact studies are important to development practitioners.
Legal victories are a marker of success, but court judgments and new
legislation do not automatically result in an improvement in living
conditions.
Alternatively, the perceptions of the claimants may be used as a
measure of success or failure. Is the group of the opinion that it
reaed its stated objectives? Was it empowered by the outcome? Is
it aware of the impact of the results aieved on actors elsewhere?
What were the dynamics aer the human rights intervention ended? 49
A University of Deusto team led by Felipe Gomez investigated the
impact of the Awas Tingni case50 ten years aer it was decided by
the Inter-American Court of Human Rights.51 In its judgment, the
Court found that Nicaragua had violated the right to property of the
Awas Tingni community. Property was interpreted as including
property concepts originating in indigenous tradition. e State was
under an obligation to demarcate and title the indigenous
communities’ territory, in accordance with its customs. Until that
time, exploitation of natural resources in the area where the
community lived, had to be halted.
964
Without a doubt, the 2001 Awas Tingni judgment constituted a
landmark for the global recognition of indigenous rights to ancestral
lands. When the Deusto team engaged in fieldwork in the area in
2011 and 2012, they found that the living conditions of the
community remained problematic. Implementation of the Inter-
American Court’s judgment had been slow. e Court does not
dispose of strong enforcement meanisms, and therefore
implementation of judgments rests with the respondent State. In
December 2008, the Nicaraguan authorities finally recognized the
communal title to land, but the enactment did not stop
encroaments by loggers on the community’s land. e recognition
of the title to land also signaled the end of the involvement of the
external actors that had supported the community throughout the
legal proceedings. e community was le with a sense of
abandonment. e (small) community felt it laed capacity to
defend itself against incursions of loggers into its territory.
Nevertheless, interviewees stressed that they were empowered by
the process of obtaining the legal victory. e community and others
like it in the region had been excluded from national politics, and
had been at the margins of Nicaraguan history, but the aention
generated by the proceedings had created visibility. ey had always
had a strong sense of entitlement to the ancestral land, and this was
now complemented by a broader human rights awareness. e
community was aware and proud that the decision had set an
important precedent for the international recognition of indigenous
rights.
965
e local and the global
roughout this piece, the hypothesis has been that global human
rights are at their most effective when their meaning is informed by
local social practice. Ideally, local groups appropriate global norms
and shape them in su a way that they respond to real needs.
Ideally again, duty bearers deal with human rights claims
responsibly, resulting in appropriate domestic policies that provide
effective protection of human dignity, particularly for disadvantaged
groups. e international community can meaningfully support the
domestic rights holder/duty bearer dialogue by building the human
rights capacity at both sides, and is entitled to monitor the domestic
human rights situation.
is scenario presupposes, however, that rights holders are able to
organize within their domestic society and have access to the
international community. It also presupposes the responsible exercise
of sovereignty by the State as the principal duty bearer. When the
State for la or excess of control is not in a position to formulate an
appropriate response, no domestic policy can emerge that can
authentically represent local human rights voices that could enri
the global human rights language.
966
Notes
1 Chair of International Law, Resear Group on Law and Development, Faculty of Law,
University of Antwerp. I anowledge the use of ongoing resear by members of the
resear group including Hajar Azari, Jingrong Chen, Ellen Desmet, Tine Destrooper,
Maheshwar Singh, and Arne Vandenbogaerde.
2 K De Feyter, “Localising Human Rights,” ed. Wolfgang Benedek, Koen De Feyter, and
Fabrizio Marrella, Economic Globalisation and Human Rights (Cambridge: Cambridge
University Press, 2007): 67–92.
3 K De Feyter “Sites of Rights Resistance,” ed. Koen De Feyter, Stephan Parmentier,
Christiane Timmerman, George Ulri, The Local Relevance of Human Rights
(Cambridge: Cambridge University Press, 2011): 11–39.
4 E Desmet, “Analysing Users’ Trajectories in Human Rights: A Conceptual Exploration
and Resear Agenda,” Human Rights & International Legal Discourse (2014): 121–41.
5 For up-to-date information on the localizing human rights project, preliminary resear
results, and a working paper series see www.uantwerpen.be/en/rg/law-and-
development/resear-topics/localising-human-rights. Current fieldwork in India and
the DRC in the context of the project is funded through an Interuniversity Araction
Pole (IAP) seme on “Human Rights Integration,” funded by the Belgian Science Policy
Office (BELSPO).
6 Common second paragraph of the preamble to the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural
Rights.
7 Fih paragraph of the preamble to the Universal Declaration of Human Rights.
8 Upendra Baxi, The Future of Human Rights (New Delhi: Oxford University Press, USA,
2006).
9 Roger Coerell, Law, Culture and Society (Aldershot: Ashgate, 2006).
967
10 omas Olesen, “Globalising the Zapatistas: From ird World Solidarity to Global
Solidarity,” Third World Quarterly 25, no. 1 (February 2004): 255–67.
11 Compare also T. Zwart “Using Local Culture to Further the Implementation of
International Human Rights: e Receptor Approa,” Human Rights Quarterly 34, no. 2
(2012): 546–69. In Zwart’s approa, international human rights law remains the
starting point, while it is anowledged that implementation of international treaty
obligations in non-Western contexts requires reliance on local social institutions that
may differ considerably from institutions responsible for implementation in the West.
12 Sally Engle Merry, Human Rights and Gender Violence, 1st ed. (Chicago, IL: University
of Chicago Press, 2006).
13 Mark Goodale, Surrendering to Utopia (United States: Stanford University Press, 2009).
14 Organisation for Economic Co-operation, Integrating Human Rights into Development:
Donor Approaches, Experiences and Challenges (Paris: Organization for Economic Co-
operation and Development (OECD), 2006).
15 Hajar Azari, Protection of Women Victim of Rape: Islamic and International Legal
Perspectives (Antwerp: University of Antwerp, 2014).
16 U.N. doc. CCPR/C/SR.64 (19 July 1982), par. 4.
17 Hajar Azari, Protection of Women Victim of Rape: Islamic and International Legal
Perspectives (Antwerp: University of Antwerp, 2014).
18 Ibid.
19 Ibid.
20 See also the reports of the U.N. Human Rights Council Special Rapporteur on the
situation of human rights in Iran, most recently U.N. doc. A/HRC/28/70 (28 May 2015).
21 Hajar Azari, Protection of Women Victim of Rape: Islamic and International Legal
Perspectives (Antwerp: University of Antwerp, 2014).
22 Ibid.
23 William L.F. Felstiner, Riard L. Abel, and Austin Sarat, “e Emergence and
Transformation of Disputes: Naming, Blaming, Claiming … ,” Law & Society Review 15,
no. 3–4 (1980): 631–54.
968
24 Tine Destrooper, An Analysis of the Human Rights-Based Approach to Development.
UNICEF’s Role in the Villages Assainis Program in the Bas-Congo, Localizing Human
Rights Working Paper Series 2. (Antwerp: University of Antwerp, n.d.).
25 K. Appiagyei-Atua, “Human Rights NGOs and eir Role in the Promotion and
Protection of Rights in Africa,” International Journal on Minority and Group Rights 9,
no. 3 (2002): 265–89.
26 e visit was connected to an (otherwise unrelated) evaluation of selected development
partners’ human rights and democracy aid to Bangladesh.
27 G. Oré Aguilar, “Localising Human Rights,” ed. Wolfgang Benedek, Koen De Feyter, and
Fabrizio Marrella, Economic Globalisation and Human Rights (2007): 67–92.
28 A pilot resear project on the right to education of rural-urban migrant ildren was
carried out (mostly in 2013) by a Chongqing/Antwerp University team in Shapingba
District, an urbanized area of Chongqing that aracts many migrant workers. e
fieldwork was undertaken mainly by Chinese researers from Chongqing University.
In total, 65 persons (parents, ildren, other stakeholders) participated in the resear.
Results will be published in 2016.
29 e Convention on the Rights of the Child was ratified by China on 2 Mar 1992. e
International Covenant on Economic, Social and Cultural Rights was ratified by China
on 27 Mar 2001.
30 See Article 46 of the Constitution of the People’s Republic of China: citizens have the
duty as well as the right to receive education. e state promotes the all-round moral,
intellectual and physical development of ildren and young people. In Mar 2004, a
third section was added to Article 33 of the Constitution providing that “the state
respects and protects human rights.” e term “human rights” thus made its first
appearance in China’s constitutional history, arguably in recognition of China’s
obligations under international human rights treaty law.
31 e conversation took place in April 2015, in the town of Savar, where the Rana Plaza
garment factory had collapsed two years earlier, killing an estimated 1129 workers
(mostly women). Ten survivors (mostly men) participated in the conversation. ey
were invited by a Dhaka based practice-oriented resear institution, entitled
Development Research Initiative.
969
32 On 8 July 2013, the EU, ILO and Bangladesh, concluded a Sustainability Compact
commiing all parties to improvements in labor rights, safety of buildings and
occupational health and responsible business practices. e United States acceded
subsequently.
33 Paul Gready, ed., Fighting for Human Rights (London: Taylor and Francis, 2004).
34 Balakrishnan Rajagopal, International Law from Below: Development, Social Movements
and Third World Resistance, 1st ed. (Cambridge, UK: Cambridge University Press, 2003).
35 Ryan Goodman and omas R. Pegram, eds, Human Rights, State Compliance, and
Social Change: Assessing National Human Rights Institutions (Cambridge: Cambridge
University Press, 2011).
36 A. Wolman, “Welcoming a New International Human Rights Actor? e Participation of
Subnational Human Rights Institutions at the U.N.,” Global Governance 20, no. 3 (2014):
437–57.
37 U.N. General Assembly resolution A/RES/48/134 (4 Mar 1993).
38 J.S. Kim, “Towards the Implementation of Human Rights in the Local Community,” in
Human Rights and the Social, ed. Department of Sociology Seoul National University,
Institute for Social Development and Policy Resear (Seoul: SNU, 2009), 55–66.
39 Barbara Oomen and Moritz Baumgärtel, “Human Rights Cities,” The SAGE Handbook of
Human Rights (2014): 709–30.
40 Mary Kaldor, “Transnational Civil Society,” in Human Rights in Global Politics, ed. T.
Dunne, Niolas Wheeler, and N.J. (Cambridge: Cambridge University Press, 1999), 195–
213.
41 P. Gready and W. Vandenhole, eds, Human Rights and Development in the New
Millennium (London: Routledge, 2014).
42 Concluding Observations on China E/C.12/CHN/CO/2 (13 June 2014), par. 15. e
Commiee on the Rights of the Child concurred, see CRC/C/CHN/CO/3-4, par.40b, 48.
43 CRC/C/CHN/CO/3-4, par.76.
44 E/C.12/CHN/CO/2, par. 9, 64-65 CRC/C/CHN/CO/3-4, par.100.
45 CRC/C/CHN/CO/3-4, par.21.
970
46 e report by Katerina Tomasevski is E/CN.4/2004/45/Add.1, The right to education.
Mission to China (21 November 2003). China’s hostile response is in Note verbale dated
10 December 2003 from the Permanent Mission of China to the United Nations Office at
Geneva addressed to the Office of the United Nations High Commissioner for Human
Rights; E/CN.4/2004/G/16 (11 December 2003). Visits by thematic special rapporteurs of
the U.N. Human Council offer opportunities for direct access to community based
organizations, local non-governmental organizations and benevolent government
officials. Country visits may also be used for comparative purposes, and thus lead to the
identification of a global trend that needs to be taled through standard-seing
(compare De Feyter 2005: 106–7). ere is however, no systematic commitment to
‘learning from below’ in the missions, nor is follow-up of recommendations by the U.N.
political bodies guaranteed. Visits only take place at the invitation of the government.
47 Human rights treaties may also be negotiated at ad hoc intergovernmental conferences:
the Statute of the International Criminal Court is an example.
48 A. Vandenbogaerde, The Human Rights Council from Below. A Case Study of the
Declaration on the Rights of Peasants, Localizing Human Rights Working Paper Series 1
(Antwerp: University of Antwerp, 2015).
49 G. Oré Aguilar, “Localising Human Rights,” ed. Wolfgang Benedek, Koen De Feyter, and
Fabrizio Marrella, Economic Globalisation and Human Rights (2007): 67–92.
50 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v.
Nicaragua. Judgment of 31 August 2001.
51 F. Gomez Isa, ed., El Caso Awas Tingni: Derechos Humanos Entre Lo Local Y Lo Global
(Duesto: Deusto University Press, 2013).
971
Selected Bibliography
Baxi, U. The Future of Human Rights. New Delhi: Oxford University
Press, 2002.
De Feyter, K. Human Rights. Social Justice in the Age of the Market.
London: Zed Books, 2005.
De Feyter, K., Parmentier, S., Timmerman, Chr., Ulri, G. eds. The
Local Relevance of Human Rights Cambridge: Cambridge
University Press, 2011.
Engle Merry, S. Human Rights and Gender Violence. Chicago:
University of Chicago Press, 2006.
Gomez Isa, F. ed. El Caso Awas Tingni. Derechos Humanos entre lo
Local y lo Global. Deusto: Deusto University Press, 2013.
Goodale, M. Surrendering to Utopia. Stanford, CA: Stanford
University Press, 2009.
Gready, P., Vandenhole, W. eds. Human Rights and Development in
the New Millennium. London: Routledge, 2014.
Lipsutz, R. Global Civil Society and Global Environmental
Governance. New York: State University of New York Press, 1996.
Rajagopal, B. International Law from Below. Cambridge: Cambridge
University Press, 2003.
Zwart, T. “Using local culture to further the implementation of
international human rights: the receptor approa” Human
Rights Quarterly 34(2) (2012): 546–69.
972
29
Israel/Palestine, Human Rights and
Domination
Nicola Perugini and Neve Gordon
973
Introduction
As the victors of World War II became fully aware of the ghastly
consequences of the Nazi death maine, the idea of creating a
regime to protect human rights rapidly surfaced in the international
arena. A human rights vocabulary was developed in order to make
sense of the horrors of the past and to help shape a new geopolitical
order controlled by the war’s victors. ese efforts were propelled by
the desire to find a way to prevent the repetition of su horrific acts
in the future. ‘Crimes against humanity’ became a common
expression among the representatives of the postwar international
community, while ‘never again’ was adopted as a human rights
truism against the recurrence of those crimes. From this moral and
political framework, the Universal Declaration of Human Rights
emerged and was adopted by the United Nations in 1948.
Many prominent human rights exponents interpreted the postwar
ascendency of human rights as a meanism that limits state power.
Universal human rights, according to this narrative, emerged aer
World War II to counter the excesses of the state by limiting the
violence to whi it can subject its own citizenry. As Ja Donnelly,
a leading human rights solar in the United States, put it:
“International law, including international human rights law, is the
record of restrictions on sovereignty accepted by states.”1 Leading
organizations su as Amnesty International and Human Rights
Wat also adopted this account and have been advocating human
rights to help secure the freedom and liberation of individuals
struggling against oppressive governments for decades. Aryeh Neier,
the first executive director of Human Rights Wat, explains that
“e state and those holding the power of states…may not deprive
anyone of liberty arbitrarily. ey are prohibited from denying ea
974
person the right to count equally and to obtain the equal protection
of the laws.”2 Indeed, the assumption of many prominent solars3 is
that human rights are external to the state and are deployed in an
effort to protect citizens from the state and indeed shape the state’s
conduct.
Moreover, most practitioners and many solars depict a linear
narrative of global salvation and redemption through human rights,
whereby more human rights equals more emancipation. is
narrative disintegrates, however, once one examines more closely
the explicit paradoxes of the postwar human rights regime. In the
following pages, we problematize how the new regime bestowed
upon the nation-state a central role in the postwar human rights
order. We highlight how the nation-state was granted responsibility
to protect human rights, while simultaneously the human rights
regime provided the state with international legitimacy. We then
turn to explain how the creation of Israel as the state of the Jewish
people reveals one of the central paradoxes of human rights.
975
e paradox of human rights
According to the Universal Declaration of Human Rights, the
foundational arter of the contemporary human rights regime,
“Member States have pledged themselves to aieve, in cooperation
with the United Nations, the promotion of universal respect for and
observance of human rights and fundamental freedoms.” Hence, out
of the atrocities perpetrated mainly by European nation-states,
aspirations for justice were articulated through a universal
vocabulary of human rights. Human rights thus became the moral
standard for scrutinizing political violence and evaluating the
relationships both within states and the people living within their
borders and among states, while the state itself was reinstated as the
pillar of the new moral order in a very specific way.
First, the state was reinforced as the constitutive unit of a global
family (the so-called ‘family of nations’) responsible (alongside the
U.N.) for securing ‘harmony, peace and freedom.’ Second, the
authority to implement the emerging human rights regime was
bestowed upon the state. In other words, human rights served to
restore the legitimacy of this political entity, both as the central unit
of global politics and as the juridical actor responsible for the people
under its governance. By reproducing the bond between the
universal and the state the post-World War II human rights regime
helped resurrect the nation-state from the ruins it had engendered.
Simultaneously, the nation-state conferred upon the Universal
Declaration and international instruments emanating from it
legitimacy. Aer all, human rights conventions only come into force
once a certain number of member states have signed and ratified
them. It is due to these interrelated tensions that we can speak of an
976
epistemic and political paradox intrinsic to the post-World War II
human rights regime.
is paradox is aracterized by a tripartite configuration,
operating as a complex and supposedly self-evident combination of
protection from, protection by and protection of the state.4 e 1948
Convention on the Prevention and Punishment of the Crime of
Genocide exemplifies this clearly. First, it identifies the state and its
officials as the potential perpetrators of genocide and human rights
violations, thus instituting the protection from the state. Second, it
requires State-Parties to recognize the crime of genocide as a
constitutive element of international law and to punish persons
guilty of genocide, thereby ascribing to the state the responsibility to
protect. Hence, the citizen is simultaneously protected from and by
the state. Finally, as an instrument that empowers the state to protect
the citizen, the convention offers the state itself protection; it serves
as the protection of the state by offering it recognition and
legitimacy as the central unit of the postwar order and primary
enforcer of the convention. In all the major human rights
conventions and treaties the three forms of protection—from, by and
of—are combined, reiterating the centrality of the nation-state. is
combination, we maintain, lies at the core of a paradox and points to
an intricate link between human rights and domination.
977
International juridical humanity
Despite its universal pretenses, human rights, as several solars
have already pointed out, are bound by the state5 and acquire
different meanings in different historical, geographical, and political
contexts.6 Yet, an extremely important element has remained
constant within the diverse post-World War II adoptions and
articulations of human rights: not only has the nation-state persisted
as the key political form responsible for the organization and
management of human communities, but also belonging to a nation-
state has become the fundamental condition for acquiring human
rights and becoming a member of an internationally recognized
community.
e struggle for human rights was considered by dominated
people—women, colonized, disenfranised minorities, and so on—as
a way to aieve freedom from oppression and exploitation, and
acquire the “right to be human.”7 is struggle came to embody a
process through whi dominated groups could either aieve self-
determination or become full citizens in existing states. By becoming
a sovereign people or citizens of a sovereign state, the stateless
believed they would be protected and acquire international
legitimacy, independence and dignity—the conditions for being fully
recognized as human by those who had already aained citizenship.
Entering the family of nations, a process enshrined in the
Declaration as a universal human right, thus became one of the
ultimate goals of the stateless. Consequently, alongside the struggles
for human dignity and defense from state abuses, human rights were
conceived as synonym of the struggle for national statecra. With
their global institutionalization beginning in the late 1940s, universal
human rights thus increasingly provided a new framework for the
978
creation of new states in the name of already existing struggles for
self-determination. Simultaneously, a central role in securing human
rights was bestowed upon the state, even though colonial and World
War II history demonstrates that the sovereign state is among the
most egregious human rights violating entities.
Developments in the international arena aer World War II and
throughout the decolonization process are similar to the anges
taking place in colonial Egypt analyzed by Samera Esmeir. Esmeir
shows how in Egypt the definition of the human was constituted
through modern law under colonial rule. She calls this process
“juridical humanity”: a meanism through whi modern colonial
law “endows itself with the power of humanization, and declares
that its absence signals dehumanization,” binding the definition of
the human to (colonial) state power.8 Along similar lines, but on a
global scale, the treaties and conventions that followed the
publication of the Universal Declaration can be interpreted as the
articulation of an international juridical humanity. ey laid out the
conditions for having one’s (individual) or a people’s (collective)
humanity recognized and protected within the postwar international
order.
Post-World War II self-determination struggles can thus be
understood as struggles for obtaining access to a full (previously
denied) condition of humanity recognized by the community of
nations, with all of its paradoxical implications. Self-determination
transforms the victims of human rights violations into full human
beings, since only aer the collective enters the framework of the
state does it become an active agent of history. When in 1952 the
U.N. General Assembly adopted the resolution on The Right of
Peoples and Nations to Self-determination, it coued self-
determination as “the prerequisite to the full enjoyment of all
fundamental human rights.” Hannah Arendt made a similar point
when she claimed that at the very moment when the refugee
appears on the political scene, when the individual is divorced from
979
citizenship and all forms of political community so that only the so-
called human remains, at that moment all human rights are lost
(Arendt, 1973 pp. 287–323).9 It is, she infers, the state that bestows
rights on people.
980
Israel-as-reparation
e European Holocaust, undoubtedly one of the major triggers
propelling the development of the language and political practices
whi constitute the contemporary human rights regime, produced
in Palestine—far from the geographical seing in whi the
extermination of the Jews took place—one of the most illuminating
examples of the paradoxical welding of human rights with national-
statecra. In fact, the history of Israel’s creation illustrates clearly
the paradox of the international human rights regime and the
constitutive interrelationship between human rights, national
statecra, and domination. It does so because during the mid-1940s
the Allies conceived Israel’s foundation as a humanitarian reparation
for the crimes commied against European Jews during the
Holocaust, while this reparation assumed the form of a seler
nation-state whose colonial practices generated new human rights
violations.
Israel’s establishment coincided with the international response to
the genocide that took place in Europe, the foundation of the U.N.,
and the publication of the Universal Declaration. Debated within a
framework of self-determination for both Arabs and Jews, the 1947
partition plan of Palestine was meant to provide two stateless
peoples with two states by dividing a single territory—the British
colony of Palestine. According to the plan, the indigenous
Palestinian majority, comprising 68 percent of the population, was to
receive about 43 percent of the land, whereas the Jewish minority,
comprising 32 percent of the population, were allocated 57 percent of
mandatory Palestine. Self-determination through the creation of a
state was discussed by the U.N. member states as a post-Holocaust
981
humanitarian solution for those Jews living outside of Mandatory
Palestine as well.
Hence, Jewish migration to Palestine alongside national seler
statecra were contemplated and then implemented as a way out
from the protracted condition of refugee-hood in whi Jewish
survivors were le aer the Holocaust. As Daniel Cohen points out,
in contrast with other ethnic groups assisted by the International
Refugee Organization (i.e. a U.N. agency), postwar Jewish refugees
occupied a position of political centrality in international relations.
Unlike other refugee communities in Europe, the U.N. did not limit
itself to providing assistance to the stateless Jews, but rather,
following pressure from the Zionist movement, morphed the
“political victims” into a state-forming “political nation.”10 e U.N.
drew a connection among three issues: the genocide and other
egregious human rights violations carried out against the Jews
during World War II; its efforts to find a solution for the postwar
Jewish refugee problem in Europe; and the establishment of a state
for the Jewish people in Palestine. Consequently, it is not surprising
that solars like Alexander Yakobson and Amnon Rubinstein have
described the creation of Israel as embedded in the global history of
human rights. “Everything that naturally derives from [the]
definition [of the Jewish State], including the Law of Return,11 meets
human rights norms as accepted by the free world today, not just
acceptable in 1947,” the two solars argue.12
Aer World War II, the Allies referred to the extermination of
millions of European Jews as an unprecedented moment in human
history. e notion of genocide was introduced into international
legal and moral debates on human rights as the primal form of
violation against whi the international community should adopt a
politics of permanent mobilization—a new politics against those
“acts commied with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group.” But while the
extermination of people was framed as a relatively new
982
phenomenon, and as “the primal murder that founds contemporary
Human Rights Discourse,”13 authors from Hannah Arendt and Aimé
Césaire to Frantz Fanon and Mahmood Mamdani subsequently
underscored that the European Holocaust had a long history, since
systematic mass killing along racial lines was first developed in the
European colonies before being re-deployed in the continent.
Accordingly, the extermination of the European Jews cannot be fully
understood without examining its colonial and imperial antecedents.
is historical re-contextualization of the Holocaust in the broader
genealogy of genocides (especially in their seler form) is significant
for understanding the paradox of human rights in Israel/Palestine.
e international recognition that a state should be granted to the
“Jewish nation” as post-Holocaust reparation for collective human
rights violations became commonsensical due to a number of
factors. Not least among these was the intensive work of the Zionist
movement, whi for years had lobbied state leaders and
international organizations in order to legitimize its aspiration to
create a homeland for the Jews in Palestine. In 1945, the Jewish
Agency—the organization in arge of buying and seling land in
Palestine on behalf of the Zionist movement—tried to lobby the
Member-States at the U.N. conference in San Francisco as they
signed the U.N. Charter, in whi for the first time human rights
were referred to as one of the constitutive elements of the
international order. In this context, the objective of the Jewish
Agency was to generate further international legitimacy for the
creation of a Jewish State by introducing into the conference’s
agenda the relation between the plight of European Jewish survivors
and the creation of a Jewish homeland in Palestine.
e notion of Israel-as-reparation—a state where Jewish human
dignity could be ‘fully restored’—was espoused by the Great Powers,
especially by President Truman who closely followed the plight of
the Jewish refugees in Europe. Britain eventually agreed to raise the
issue of Palestine at the U.N. Ultimately, the relationship between
983
Israel’s creation and the plight of Jewish refugees in Europe was at
the center of a thorny debate in the U.N.’s Special Commiee on
Palestine (UNSCOP).
In his decisive 1947 testimony at UNSCOP, Chaim Weizman, the
U.N. representative of the Jewish Agency who later became Israel’s
first president, called upon the Member States to “encourage
intensive colonization” in the territory that the international
community would soon decide to recognize as the state of Israel.14
Weizman’s invocation became reality, since Israel’s state-building
process amounted to the destruction of hundreds of Palestinian
villages, the systematic expulsion of the indigenous population, and
the selement of hundreds of thousands of Jews in their stead.15 e
reparation of a human rights violation through seler colonialism
was bound to generate a new cycle of violence. e firm connection
between the humanitarian solution for the European Jews who
survived the Holocaust and were subsequently dispersed in refugee
camps, and the creation of a seler Jewish state in Palestine aer
decades of Zionist mobilization serves as a powerful example of the
paradox of the post-World War II human rights regime. While
human rights were announced and enunciated as tools of protection
from violent and dispossessive nation-states, dispossessed Jews were
entitled to create a nation-state whose foundational form was seler
colonialism. As we noted earlier, the genealogy of the European
genocide can be traced ba to the forms of violence first instituted
by seler colonialism.
In this paradoxical context, the framing of Israel’s establishment
as a humanitarian solution provided its seler colonial nature with
an aura of international legitimacy. It also reveals that the two
apparently irreconcilable discourses of universal human rights and
domination can and do coincide, as well as how the first can be
deployed to legitimize and normalize the second. is historical
process is significant since it serves as a paradigmatic example of
how the birth of the post-World War II human rights regime was
984
located in a space in whi human rights, nation-state, and
domination are entangled in a Gordian knot.
985
e Eimann trial and the re-
territorialization of the threat
The Specialist, the name given to Adolf Eimann in an inspiring
courtroom documentary, was one of the masterminds of the
extermination of Europe’s Jews.16 In arge of a sub-department of
Jewish Affairs at the Gestapo, Eimann was one of the aritects of
the Nazi system of deportation and annihilation. When in 1961
Israeli secret service agents kidnapped Eimann in Argentina and
brought him to be tried in Israel, the survivors of the ‘Final Solution’
were, for the first time, directly confronted with the dilemma of
what to do with a Nazi war criminal.
Oen identified as a constitutive moment in the creation of an
international legal regime of universal jurisdiction, the Eimann
trial emphasizes the post-World War II paradoxes of human rights. It
exacerbated the instrumentalization of the Holocaust by helping to
facilitate the articulation of two interconnected projections: temporal
and spatial. It helped project the genocidal threat of the past into
Israel’s present, and was used as a meanism to expedite the
geographical displacement of the threat of egregious human rights
violations from a European territorial seing to a Middle Eastern
one. e combination of these two projections accelerated the
progressive equation between the European human rights violators
of World War II and Arab populations of the Middle East.
As Idith Zertal has argued, in order to comprehend the political
impact of the Eimann trial we must analyze it in relation to the
1967 War between Israel and the Arab armies. Before the trial Israel
had adopted a strategy of ‘selective amnesia,’ ‘suspension of the
grief,’ and ‘organized silence’ in whi the Holocaust and the
experience of exile were all but disavowed by the state in order to
986
construct a new Jewish identity—namely, the ‘new Jew’ who escaped
a vulnerable condition of exile and aieved self-determination in
Israel. However, the Eimann trial marked a return of the
vulnerability discourse and transformed the Holocaust’s memory of
suffering into a national discourse of existential threat.17 In other
words, through the trial the Holocaust’s threat was projected into
Israel’s current present and into a new territorial seing different
from the one in whi it had originated.
Eimann, who was guilty of crimes against humanity commied
in Europe, was judged in the Middle East, in the territorial seing of
the state that was considered by the Western powers as reparation
for those very crimes. Concomitantly, the Arab states in the region
as well as the Palestinians who were displaced as a result of Israel’s
establishment were progressively, as Idith Zertal shows in Israel’s
Holocaust and Politics of Nationhood, equated with Eimann. In
fact, from the early 1950s until the trial Ben-Gurion repeatedly
associated Arabs with Nazis, claiming, for example, in a 1960 New
York Times Magazine article, “that the Eimann trial will help to
ferret out other Nazis—for example, the connection between Nazis
and some Arab rulers.”18 e connection between the Holocaust and
the Arabs—a discursive operation that Zertal defines as the
“nazification of the enemy”19—was produced through the laer’s
transformation into an existential threat, reinforcing the idea of
Israel as an entity in a permanent state of emergency.
During and aer the 1967 War, the Israeli conquest of new
Palestinian and Arab territories was constructed as an answer to this
state of permanent emergency. In 1969, for example, Abba Eban,
Israel’s Foreign Minister at that time, defined the return to the pre-
1967 borders as “something of a memory of Auswitz,”20 evoking
the temporal persistence of the Holocaust into the present. In this
way, through the metaphor of “Auswitz lines”—a metaphor that
was later re-mobilized by other Israeli political actors—he re-
territorialized the threat in the context of Israel’s conquests. A
987
withdrawal from the territories occupied in 1967 would have
corresponded, according to Abba Eban’s logic, to the return of
history: the potential repetition, in a new temporal and spatial
seing, of the horrific violations that triggered the creation of the
contemporary international human rights regime. e paradox of
human rights in Israel aer the Eimann trial is precisely this
process through whi the crimes against humanity commied in
Europe served to rationalize and justify the rights-abusive
expansionist process of Israeli national statecra in the Middle East.
e ‘eternal presence’ of the horrific violations perpetrated during
the Holocaust served, in other words, to validate the claim that Israel
was constantly threatened by the potential repetition of these
violations. us, the spatial and temporal displacement of the
Holocaust into the Palestinian Middle East served to justify practices
of forced relocation and dispossession of the area’s indigenous
population; it helped legitimize seler colonial practices (in the
territories occupied in 1967) and evoked the past in order to provide
the domination of the present with moral justification.
Fundamentally, this discourse of permanent emergency resulted in a
twofold reification. First, it transformed the Arabs into an ultimate
security threat that persists until the present. Second, it re-
emphasized and crystallized the position of Israeli Jews as the
perpetual victims of human rights violations.
988
A different human rights discourse?
Fast-forwarding to the outbreak of the first Palestinian uprising
(known as the Intifada) in December 1987 the human rights
discourse reappeared on the political scene under a new guise. Aer
decades in whi Israel strengthened its collective nationalist
identity and the Palestinian liberation movement had shaped its
struggle as a nationalist anti-colonial one based on armed resistance,
and almost twenty years (starting from the 1970s) in whi the
Western world had witnessed the increasing mobilization of
individual human rights as tools for international campaigns of
advocacy, Palestinians adopted the language of human rights and
used it both to justify their resistance and as a critique of Israel’s
military rule. Human rights were progressively adopted as the
language spearheading the struggle for self-determination.
e uprising, whi was informed by an array of anti-colonial
actions ranging from demonstrations and strikes to a boyco of
Israeli goods was met with harsh measures, including extra-judicial
executions, massive administrative arrests, curfews, closure of
sools and universities, and severe restrictions on movement.21 But
an important transformation occurred: Palestinians as well as Israeli
and international media that covered the ongoing events started to
frame the confrontations between the Palestinian resistance and the
Israeli military using the vocabulary of human rights.
Furthermore, within an extremely short period, human rights
were institutionalized and numerous new NGOs emerged. Before the
uprising erupted, only one human rights NGO existed in Israel,
while about 15 human rights NGOs were established in the years
immediately following its outbreak. In the Occupied Palestinian
Territories (OPT), the impact of the uprising on the
989
institutionalization of human rights was just as striking. Only two
human rights NGOs existed before the Intifada, and about six others
were established within a very short period following its eruption.
is proliferation took place with the help of international funding
of human rights activities. In some cases, Palestinian human rights
NGOs helped fill the void created in 1967 following Israel’s banning
of all Palestinian political parties. ese NGOs instantly created
networks among themselves and with a range of international
human rights groups. ey imported, translated, and reinterpreted
the global human rights discourse in order to connect it to the local
political landscape.
e new NGOs began using the human rights vocabulary in their
press releases, reports, and correspondence with Israeli authorities.
Some of them focused on Palestinian victims of torture, introducing
the language of clinical trauma as a tool for advocating human
rights in the Palestinian political arena. Other organizations centered
their activities on monitoring forms of violations that became the
basic grammar of human rights activism for Palestine: deportations,
house demolitions, administrative detention, dispossession, denial of
the freedom of movement. In addition, several of the new rights
organizations adopted the direct litigation strategy and filed literally
hundreds of petitions to the Israeli courts, employing both
international humanitarian and human rights law in their petitions.
e media covered some of these cases so that the rights discourse
also entered the public domain via the Israeli judicial system.
us, the first Palestinian popular uprising and the diffusion of the
global human rights discourse helped reframe the Palestinian
question. For the first time aer Israel’s establishment, the abuses
commied by the occupying state against the Palestinian population
were systematically framed as human rights violations. Palestinians
in the West Bank and Gaza Strip slowly gained access to the
international ‘circle of victims’ producing a new situation whereby
human rights claims were no longer the prerogative of the Jewish
990
population of Israel/Palestine. is reframing process triggered an
incremental shi in international public opinion towards the plight
of the Palestinians, first among activists and later among wider
segments of civil society.
991
A paradoxical situation
is globalization of Palestine through the language of human rights
ended up having a significant impact on the region’s political
landscape. e framing of the conflict using human rights and the
increasing international preoccupation with the violations
perpetrated against Palestinians helped force Israel to the negotiating
table. Aer Israeli Prime Minister Yitzak Rabin and PLO leader
Yasser Arafat signed the Oslo Accords on the White House lawn in
September 1993, international donors continued funding human
rights NGOs both in Israel and in OPT in order to help promote the
implementation of the peace process. e rights groups were
expected to monitor and denounce Israel’s practices of dispossession
of Palestinian land as well as to expose other rights-abusive policies.
Within Palestinian society, human rights NGOs also acquired a
prominent role in promoting and assisting the so-called state-
building process managed by the Palestinian Authority. ey became
an alternative to grassroots initiatives and traditional political
parties in what critics have since called the NGOization of civil
society.22
is new ‘human rights boom’ did not, however, produce a
rupture in the region’s history of political violence. Notwithstanding
the increasing activism, the NGOs did not manage to even create a
dent within the local framework of colonial sovereignty. e human
rights discourse brought the Israeli regime and the colonized closer,
but in a way that was far from the coexistence and peace that this
discourse intended to produce. rough their daily interaction with
Israel’s courts as well as with the military and different government
offices, both Israeli and Palestinian human rights practitioners
helped validate the institutional framework of the seler colonial
992
state. e state that was responsible for extra-judicial executions,
torture, home demolitions and dispossession, was asked to be both
the arbitrator of and protector from the violations that it was
carrying out.
On the one hand, then, the introduction of a human rights
discourse in Israel/Palestine during the first Intifada produced new
practices eoing a broader transformation in global advocacy. Most
importantly, it spurred the reframing of the conflict and began to
alter the perspective regarding the identity of victim and perpetrator,
particularly in the international arena. is re-articulation of the
discourse facilitated the reframing of the historical understanding of
the relationship between domination and human rights in the area,
and triggered a different discourse from the one that had dominated
the previous decades. Jews no longer had sole proprietorship of
victimhood.
On the other hand, however, human rights did not materialize as a
tangible or effective counterhegemonic political force, particularly
not within the local context in whi they were deployed. e
human rights NGOs helped numerous Palestinian patients cross
epoints to rea hospitals; they provided traumatized ildren
with psyological support; they postponed several house
demolitions; they located thousands of political prisoners who had
been taken from their homes in the middle of the night; they, at
times, even pressured the military to li a curfew; but they had no
effect on the occupation’s structure and did not destabilize the
routine of domination that had led to their emergence. Moreover, the
introduction of the global human rights discourse that was among
the main causes of the NGOization of Palestinian society in many
ways undermined other Palestinian political cultures of resistance.23
us, even though human rights had become a prominent discourse,
it did not manage to alter the asymmetry of power in the area.
Hence, human rights, in spite of the new framework in whi they
were deployed following the eruption of the first Intifada conserved
993
their paradoxical aracteristics. At the end of the day, state
institutions structurally embedded in the colonial system
appropriated the human rights critique in order to constitute
themselves as both legitimate and lawful. e performance, whereby
the human rights lawyers appear in court, and judges arbitrate
between plaintiffs and government institutions that carry out
violations, helped the state constitute an image of equanimity and
morality. In this sense, the human rights critique became a
legitimizing tool for state power. In another manifestation of the
paradox, the protection from the state merged with the protection of
the state.
994
Normalizing domination
In September 2000, aer the failure of the Oslo peace process and the
continuous expansion of Israel’s seling activities in the OPT the
second Intifada erupted. e Israeli military defined the events in the
OPT as an ‘armed conflict short of war,’ and thus expanded the range
of situations in whi soldiers are permied to fire live ammunition.
e extensive recourse to dehumanizing forms of state violence by
Israel, on the one hand, and the Palestinian resort to armed struggle
and suicide aas as teniques of resistance, on the other,
increased the efforts to make sense of political violence through the
invocation of the human rights discourse. e international NGOs
operating in the area and the local Israeli and Palestinian
organizations that had become prominent during the first Intifada
and the ensuing peace process, published report aer report about
the violent confrontations. Oen framed fatalistically by the media
and human rights practitioners as a new apter in an ‘endless
conflict,’ the increasing documentation and denunciation of human
rights violations paradoxically decreased the focus on the structural
elements and political rationales producing them. With the exception
of exposing the state’s dispossessive land regime, the major mode of
critique espoused by the liberal human rights NGOs focused on
uncovering instances of violations rather than on the structural
underpinnings of domination.
e move away from structural critique manifests itself in several
ways of whi we will mention three: 1) the constitution of the
violation as a case and the appeal to the violating state to correct the
violation; 2) the constitution of the violation as a routine to be
administered according to human rights standards; and 3) the
reduction of structural colonial violence to a series of symptoms.
995
In this way, human rights have helped normalize relations of
domination. We understand this process of normalization differently
from the way it is usually evoked in Israel/Palestine. By
normalization we do not merely mean the normalization of the
relationships between colonizers and colonized, whereby the two
people continue to meet, conduct ‘business as usual,’ and cooperate
while ignoring the relations of domination between them. e sense
of normalization invoked here refers to our claim that human rights
activism, while developing new tools of monitoring and advocacy,
has oen elided the fundamental meanisms of domination that
produce the very actions this advocacy denounces and classifies as
human rights violations.
Human rights NGOs and researers operating within and in
support of Palestinian society further systematized and
professionalized their teniques of evidence production. New
human rights training programs were developed in Israel and in the
OPT through international funding; video cameras were distributed
to Palestinian farmers asking them to record violations; munition
experts were flown in to analyze the aritecture of destruction;
airplanes were commissioned to provide aerial photos of
expropriated land; and the West Bank was mapped by human rights
activists using GIS tenology. Su teniques helped further reveal
Israel’s brea of international human rights and humanitarian law
and helped spur advocacy campaigns for the protection from state
violations. To be sure, alongside the normalizing effect of human
rights work, NGOs did analyze the state’s practices of land grab,
selement building, seizure of Palestinian resources, collective
punishment and violence, and produced reports that examined not
only the effects of domination but also elements of its structure. But
this professionalization of human rights through the increasing
sophistication of investigation teniques also generated a sense of
normalcy of human rights violations and the apparatuses producing
them. When violence and human rights violations are normal and
996
become the object of a ‘denunciation routine,’ they are, as Lori
Allen24 has noted, everywhere and nowhere in particular.
To be sure, we are not claiming that human rights organizations
and actors operating in Israel/Palestine deliberately aim to obfuscate
domination, but this has been one result of human rights activism in
the area. However, in spite of this, normalization was not a linear
process. In fact the reframing of the conflict as an issue of human
rights protection of Palestinians did have an impact on how it has
been perceived, mainly in the international arena. Over the years,
the human rights discourse managed to transform the lens through
whi the international community understands Israel/Palestine, and
this new framing altered the conception about whi side is
inflicting systematic human rights violations. In spite of the
normalizing effect of mainstream human rights activism, the Israeli
government alongside a group of NGOs and solars, began—as we
show in The Human Right to Dominate (2015)—to frame Palestinian
and pro-Palestinian human rights groups as a new national security
threat and push for repressive laws against them. A state born as
reparation for human rights violations is curbing human rights
activism aimed at protecting the people it has been dispossessing for
decades: the paradox of human rights in Israel/Palestine is far from
reaing an end.
997
Notes
1 Ja Donnelly, International Human Rights (Boulder, CL: Westview Press, 2012). p. 27.
2 Aryeh Neier, “Misunderstanding our mission,” available at
www.opendemocracy.net/openglobalrights/aryeh-neier/misunderstanding-our-mission
(accessed September 18, 2014).
3 For instance, Margaret E. Ke and Kathryn Sikkink, Activists Beyond Borders: Advocacy
Networks in International Politics (Cambridge: Cambridge University Press, 1998).
4 Nicola Perugini and Neve Gordon, The Human Right to Dominate (New York, NY:
Oxford University Press, 2015).
5 Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard
University Press, 2010).
6 Charles R. Beitz, The Idea of Human Rights (New York: Oxford University Press, 2011);
M. Goodale, “Introduction to ‘Anthropology and human rights in a new key’,” American
Anthropologist vol. 108, no. 1 (2008), 1–8.
7 Paul Gilroy, Race and the Right to be Human (Utret, NL: Universiteit Utret Press,
2009). p. 11.
8 Samera Esmeir, Juridical Humanity: A Colonial History (Palo Alto, CA: Stanford
University Press, 2012). p. 2.
9 Hannah Arendt, The Origins of Totalitarianism (New York: Mariner Books, 1973). pp.
278–323.
10 Gerard D. Cohen, “e holocaust and the ‘human rights revolution’: a reassessment,” in
Akira Iriye, Petra Goedde and William I. Hitco (eds), The Human Rights Revolution.
An International History (Oxford: Oxford University Press, 2012). pp. 53–72.
11 Israel’s Law of Return states that “every Jew has the right to come to this country as an
oleh [Jewish immigrant]”, thus restricting the right of return to Israel/Palestine to Jews,
and denying this right to the Palestinians expelled in 1948 as a result of the creation of
998
the state of Israel. is law constitutes one of the pillars of Israel’s seler colonial
regime and the main obstacle to a selement of the conflict according to international
law.
12 Alexander Yakobson and Amnon Rubinstein, Israel and the Family of Nations: The
Jewish nation-state and Human Rights (London: Routledge, 2008). p. 2.
13 Robert Meister, After Evil: A Politics of Human Rights (New York: Columbia University
Press, 2011). p. 198.
14 United Nations Special Commiee on Palestine, “Official records of the second session
of the general assembly, Supplement No. 11,” July 8, 1947, available at
hp://unispal.un.org/unispal.nsf/0/364a6ac0dc52ada785256e8b00716662?OpenDocument
(accessed April 28, 2014).
15 Ilan Pappe, A History of Modern Palestine: One Land, Two Peoples (Cambridge:
Cambridge University Press, 2006).
16 Eyal Sivan and Rony Brauman, “e specialist: portrait of a modern criminal,” (Home
Vision Entertainment, 2002).
17 Idith Zertal, Israel’s Holocaust and the Politics of Nationhood (Cambridge: Cambridge
University Press, 2005).
18 David Ben-Gurion, ‘‘e Eimann case as seen by Ben-Gurion,’’ New York Times
Magazine, December 1960, cit in Zertal, 2005, p. 98.
19 Idith Zertal, Israel’s Holocaust and the Politics of Nationhood (Cambridge: Cambridge
University Press, 2005). pp. 173–5.
20 Abba Eban, “Interview,” Der Spiegel, November 5 1969.
21 Neve Gordon, Israel’s Occupation (Berkeley, CA: University of California Press, 2008).
22 Sari Hanafi and Linda Tabar, The Emergence of a Palestinian Globalized Elite: Donors,
International Organizations, and Local NGOs (Washington, D.C.: Institute of Jerusalem
Studies, 2005).
23 Didier Fassin, “e humanitarian politics of testimony: Subjectification through trauma
in the Israeli–Palestinian conflict,” Cultural Anthropology vol. 23, no. 3 (2008), 531–58.
999
24 “Geing by the occupation: how violence became normal during the Second Palestinian
Intifada,” Cultural Anthropology vol. 23, no. 3 (2008), 453–87.
1000
Selected Bibliography
Allen, Lori. “Geing by the occupation: how violence became
normal during the Second Palestinian Intifada” in Cultural
Anthropology vol. 23, no. 3 (2008), 453–87.
Beitz, Charles R. The Idea of Human Rights. New York: Oxford
University Press, 2011.
Cohen, Gerard Daniel. “e Holocaust and the ‘human rights
revolution:’ a reassessment.” in Iriye, Goedde, and Hitco eds,
The Human Rights Revolution. An International History. Oxford:
Oxford University Press, 2012: 53–72.
Donnelly, Ja. International Human Rights. Boulder, CO: Westview
Press, 2012.
Eban, Abba. “Interview.” Der Spiegel, November 5, 1969.
Esmeir, Samera. Juridical Humanity: A Colonial History. Palo Alto,
CA: Stanford University Press, 2012.
Fassin, Didier. “e humanitarian politics of testimony:
subjectification through trauma in the Israeli–Palestinian
conflict.” Cultural Anthropology vol. 23, no. 3 (2008), 531–58.
Gilroy, Paul. Race and the Right to be Human. Utret, NL:
Universiteit Utret Press, 2009.
Goodale, Mark. 2008. “Introduction to ‘anthropology and human
rights in a new key’.” American Anthropologist vol. 108, no. 1
(2008), 1–8.
Gordon, Neve. Israel’s Occupation. Berkeley, CA: University of
California Press, 2008.
Hanafi, Sari and Linda Tabar. The Emergence of a Palestinian
Globalized Elite: Donors, International Organizations, and Local
NGOs. Washington, D.C.: Institute of Jerusalem Studies, 2005.
1001
Ke, Margaret E. and Kathryn Sikkink. Activists Beyond Borders:
Advocacy Networks in International Politics. Cambridge, UK:
Cambridge University Press, 1998.
Meister, Robert. After Evil: A Politics of Human Rights. New York:
Columbia University Press, 2011.
Moyn, Samuel. The Last Utopia: Human Rights in History.
Cambridge: Harvard University Press, 2010.
Neier, Aryeh. “Misunderstanding our mission.” Open Global Rights,
accessed September 18, 2014,
www.opendemocracy.net/openglobalrights/aryeh-
neier/misunderstanding-our-mission.
Pappe, Ilan. A History of Modern Palestine: One Land, Two Peoples.
Cambridge: Cambridge University Press, 2006.
Perugini, Nicola and Neve Gordon. The Human Right to Dominate.
New York, NY: Oxford University Press, 2015.
The Specialist: Portrait of a Modern Criminal. Directed by Eyal Sivan
and Rony Brauman. New York, NY: Home Vision Entertainment,
2002.
United Nations Special Commiee on Palestine. “Official records of
the second session of the General Assembly, supplement no. 11.”
Report of the General Assembly, last modified July 8, 1947,
accessed April 28, 2014,
hps://unispal.un.org/DPA/DPR/unispal.nsf/0/07175DE9FA2DE5
63852568D3006E10F3.
Yakobson, Alexander and Amnon Rubinstein. Israel and the Family
of Nations: The Jewish Nation-State and Human Rights. London:
Routledge, 2008.
Zertal, Idith. Israel’s Holocaust and the Politics of Nationhood.
Cambridge: Cambridge University Press, 2005.
1002
30
e est for Constructive Criticism
Critical approaes to human rights
Alison Brysk
It is an ironic sign of the success of a new discourse when it begins
to generate critiques. Constructive criticism can improve the
responsiveness of any claims for social justice. However, in the
twenty-first century, we have reaed a contradictory moment of
unexpected traction and heartbreaking inadequacy in human rights
implementation. Amid this, we see the growing relevance of human
rights solarship. ese include academic critiques that range from
historically informed engagements to ideological predispositions and
deconstructive rhetoric. is apter will seek to evaluate the
balance between grounded and rhetorical critiques of human rights.
It hopes, in so doing, to recover our understanding of how
solarship can contribute to the value of human rights as a
constructed political practice, arguing that solarship must be
engaged with histories and current realities if it is to make sense of
contradictory human rights realities and safeguard the emancipatory
potential of human rights discourse.
Human rights means a set of interloing global claims, practices,
and institutional meanisms for human freedom, equality, and
dignity, codified in a set of core treaties that establish a theoretical
1003
normative consensus on minimal standards. Human rights are a
flawed, limited, yet deeply valuable basis for social action that
represents the best basis for empowerment and mobilization of
many of the world’s people. Although human rights initially
developed primarily from Enlightenment notions of individual legal
liberation from state power, human rights has multiple roots and
branes. e Bani Adam doctrine of universalist responsibility for
the suffering of others that adorns the entrance to the United
Nations was penned by Sa`adi Shirazi, a medieval Persian poet. As
the editor of this volume proposes, the power of human rights lies in
its dynamism, pluralism, and dialectic between norms and agency.
Academic analysis must ultimately be judged by its potential to
improve social practice and human well-being, as Riard Rorty
reminds us.1 e study of human rights developed to learn lessons
and develop best practices in maers of life and death—it is not a
philosophical exercise or an analysis of a literary text. is means we
must assess the claims and implications of critiques for their
potential to improve or conversely undermine the construction—or
deconstruction—of rights. e danger of unmoored critique can be
seen as Foucault famously misread the Iranian revolution as a
progressive deconstruction of modernity—like the Stalinist Fren
intellectuals of the previous generation, his privilege of philosophical
innovation and totalizing ideology over human consequences
enabled a bloody suppression of an entire society and a masculinist
manipulation of claims to authenticity.2 Totalizing pessimism over
the possibility of rights relativizes suffering and silences the
struggles that are the last best hope of an emancipatory civil society.
We will begin by laying out the spectrum of critical approaes:
deconstructive, constructive, and thematic. Although all are critical,
these clusters differ in their premises, strategies, and implications.
en we will test the various critical approaes to human rights
against the most systematic and widespread abuse of rights: violence
against women, whi affects an estimated one out of three women
1004
worldwide, with particular salience for the MENA region.3 What can
the critics tell us about how to improve the relevance and resonance
of rights?
1005
“Critical human rights” versus constructive
critique: an overview
e most extreme form of critical human rights analysis is
aracterized by the premise that modernity and Western influence
are always and exclusively the problem, an analytic strategy limited
to structural labeling, and a consequent denial of responsibility for
material perpetrators or agency for resisters who have any privilege
or external support. A lamentably typical application of a critical
studies perspective to the arguably limiting case of North Korea
illustrates the analytic and moral bankruptcy of post-positivist
deconstruction and ‘readings’ of international human rights, when
they are undisciplined by reference to empirical reality. In a 2014
article in the journal Critical Asian Studies called “Reframing North
Korean Human Rights,” around the same time a 400-page U.N. report
documented mass murder, torture, starvation, and an estimated 80–
120,000 political prisoners, the author instead decries “antinomies of
contemporary human rights as an ethico-political discourse that
strives to reassert the dominance of the global North over the global
South.”4 (Presumably, this refers to the United Nations’ Office of the
High Commissioner for Human Rights who called for North Korea’s
referral to the International Criminal Court.). e author goes on to
aver that human rights criticism of North Korea is “relentlessly
presentist in its assignment of blame and politically harnessed to a
regime-ange agenda, the human rights framing of North Korea has
enabled human rights advocates, typically ‘beneficiaries of past
injustice,’ to assume a moralizing, implicitly violent posture towards
a ‘regime’ commensensically understood to be ‘evil.’”5
e routine claim by critical theorists to historicize and unpa
the genealogy of abuse in colonialism and modernity is belied by
1006
extensive documentation of decades of dynastic state terror in North
Korea, catalyzed by the Cold War but enabled by Chinese regional
hegemony.6 In actual fact, the regime-ange agenda, while present
has been mu weaker for North Korea than other pariah states due
to North Korean military dominance;7 this misreading is
symptomatic of a critical studies willful ignorance of measurable
power relations in favor of ideologically prescribed assumptions. e
ad hominem dismissal of human rights advocates as “beneficiaries of
past injustice” ignores the testimony of thousands of North Korean
victims and witnesses, as well as transnational solidarity by global
human rights movements not easily aracterized as elite. e
alleged discursive harm of human rights claims’ “moralizing” and
their “implicit violence” absurdly overwhelms the actual material
violence of the regime, while the use of “commensensical” as a term
of opprobrium indicates that contrarian analysis is valued above
banal observation of the destruction of millions of human lives. e
only glimmer of constructive contribution this special issue offers is
a promise to “render legible” marginalized perspectives on the Cold
War roots of repression and the hidden costs of human rights
policies su as sanctions. But even this potential is ultimately
vitiated by a refusal to engage in concrete evidence-based evaluation
of the policies’ potential unintended consequences in favor of
ideological castigation of their liberal intent.
Contrast this destructive criticism with the careful and
constructive critique of the making of modern humanitarianism in
the Mideast in Keith Watenpaugh’s Bread From Stones,8 whi is
firmly grounded in empirical evidence and analyzes rather than
assumes political context. Watenpaugh thoroughly examines the
roots, record, and consequences of World War I-era and interwar
Western relief efforts in the Mideast, centered on response to the
Armenian genocide. He traces the genocide to a mix of modernist
state-making and pre-modern tribal logics, not a seamless imposition
of Enlightenment projects. On the one hand, he shows that Western
1007
efforts were selective, inadequate, and sometimes unintentionally
reinforced repressive state sovereignty and ethnic cleansing. On the
other hand, his analysis demonstrates that modern humanitarianism
was distinct from colonial projects, oen genuinely transnational,
and sometimes did provide relief, rescue, and even rights for
refugees stripped of citizenship, residence, and even human identity
by genocide. By aending to the witness of survivors and the
constitution of one genre of intervention by the American Armenian
diaspora, Watenpaugh restores agency to the objects of
humanitarianism. Conversely, he shows how false readings of some
aspects of Western selectivity—that in some cases arose in response
to Ooman policies—are abused by contemporary Turkish genocide
deniers. is author carefully delineates the difference between
interwar self-determination claims, that were constructed partially
as collective rights but also partially an aempt at racialized
distribution of sovereignty by the emerging interstate order vs. the
intermient struggles for expanding recognition of the individual
rights of denationalized refugees.9
e selections above represent two bases of critical approaes.
e self-denominated “critical studies” approa consists of
deconstructions that read social action as a discourse, universally
condemn universalism and modernity, and interpret human rights as
a displacement of politics into a false regime of governmentality and
“bio-politics.”10 e wholesale revisionist academic deconstruction of
rights is totalizing, inaccurate, and disempowering. For authors su
as Agamben and Fassin, war crimes, genocide, forced displacement,
and torture are all generated by the modernizing sovereignty of the
state. Neither law nor democracy can overcome this, as the liberal
state represents a nefarious deepening of the ineluctable coercion of
hegemony. Neoliberal domination is the overwhelming threat to
human survival, agency is an illusion, and rights are doomed.11
is contrasts with socially engaged critiques, in the spirit of
Frankfurt Sool critical theory, of the dialectic between material
1008
power relations and their ideological expression that place the
evolution of human rights as norm and practice in social context.12
is view interrogates multiple modernities, and seares for
contingency and contradiction as a source of emancipation. e
laer approa is quite compatible with contemporary approaes to
human rights that move beyond a natural rights claim to a vision of
human rights as a contested, constructed, and evolving basis for
mobilization and empowerment with the capacity for counter-
hegemony in a liberal world order.13
Alongside these dominant contrasting critical genres, there are
more partial critiques of different aspects or applications of rights.
Some of these critiques play a constructive role in revealing
limitations and contradictions of human rights practice, although
others do not necessarily recognize the partiality of their own
approa and assume that a critique of some mode of human rights
is a critique of the possibility of rights itself. us, there are
allenges to the historical exclusions of human rights,14 human
rights dependence on international law,15 the relationship between
rights promotion and humanitarian intervention,16 cultural
constructions and projections of rights norms,17 the bureaucratic
politics of human rights organizations,18 appropriations of human
rights discourse to subvert empowerment by neoliberal and security
states,19 distortions of transitional justice,20 and of course systematic
political barriers to implementation.21 e question for these
critiques is whether their observed distortion of rights is inherent or
remediable. As we will see, the dynamism and transnational
dialectic of women’s human rights campaigns demonstrates the
constructive potential of human rights as a modality of social action,
and counters most of these recent critiques when they falsely limit
human rights to a corpus of law, top-down actions of global
institutions, or imposition of Northern norms.
1009
Countering the “critical human rights” critics:
rights as movement
In Homo Sacer, Agamben makes the sweeping claim that: “today’s
democratico-capitalist project of eliminating the poor classes
through development not only reproduces within itself the people
that is excluded but also transforms the entire population of the
ird World into bare life.”22 But life on the ground—oen bleeding
but only sometimes ‘bare’—looks a lot more like Arendt than
Agamben: the leading sources of abuse are statelessness, migration,
patriary, and the genocidal projects that Watenpaugh notes
typically blend pre-modern and modern logics. Ironically, the
phenomena that most resemble ‘bare life’ in our times are the pre-
modern tribal wars and scored earth policies of genocidal jihadis,
not the rationalizing colonialist expansions of the nineteenth and
twentieth centuries.
is distorted ‘reading’ of the possibility of rights also obscures
the contradictions of the ‘democratico-capitalist project’ whi have
expanded the range, rea, and responsiveness of rights at the global
level. Social movement campaigns mobilize action by building on or
craing new frames that hold liberalism to its own claims, from free
labor to equal citizenship. Violence against women is allenged
most successfully when it can be linked to a pre-existing and
powerful frame from this genre, as in ‘sex slavery’ for human
traffiing or ‘health rights’ for FGM/C.23 While violence against
women is commied by a spectrum of public and private actors in a
continuum of private and public spaces, and can be reinforced by
modernizing social institutions, contra Foucault many forms of
privatized violence against women are actually ameliorated by equal
access to the institutions of modernity like hospitals and courts. And
1010
even where the responses of modern institutions to gender-based
violence have been complicit or inadequate, some feminist
campaigns have greatly altered legal and medical practice, through
meanisms from women’s police stations in Brazil to Family Justice
Centers in Mexico that integrate survivor-oriented medical, legal,
and social services.
Contra the ‘state of exception’ critique of law constituting rights-
less liberal subjects,24 in many places women struggle to overcome
second-class citizenship precisely to become rights-bearing liberal
subjects, and victims of ronic and privatized violence generally
benefit from inclusion in the liberal public sphere. On May 30, 2015,
hundreds of Lebanese women rallied at the Justice Ministry to
demand greater protection for domestic violence victims, and
enforcement of 2014 landmark legislation secured by previous waves
of protest, under the banner of a national women’s movement called
KAFA—Enough. In the wake of the notorious Sara al-Amin murder,
they mobilized for standard legal measures including expedited
trials, stricter punishment, and creation of a special family court.25 In
similar fashion, the following month, hundreds of thousands of
Argentines protested ‘femicide’ with the slogan “Ni una mas”—“Not
one more.” Empirical resear demonstrates that the presence of a
women’s movement is a critical factor in securing both policy
ange on violence against women, and enforcement of international
treaties.26
Furthering Foucault’s perspective, critical theorists of ‘bio-politics’
assert a hegemonic scripting of the body by neoliberalism and
insufficiency of rights to reclaim the body.27 Reproductive rights are
the linpin of women’s self-determination: the right to control
sexuality, reproduction, and to enter the public sphere without fear
of sexual violence. While some feminist critical perspectives parallel
the deconstructive readings cited above, an arc of mobilizations by
women across local and global levels has done important work to
allenge violence, assert self-determination of the body, and reclaim
1011
the public sphere—inspiring some critical feminist theorists to
rethink the possibilities of transnationalism.28
Slutwalks aim to reclaim public space and demand accountability
for women’s safety from sexual violence. e Slutwalk movement
started in Canada in 2011, aer Toronto police tasked with
responding to campus assaults claimed that sexual harassment was
influenced by young women circulating in ‘provocative’ dress.
Worldwide, Slutwalk protests seek to allenge blaming the victim,
and ‘rape culture’ that helps fuel and excuse the violence.
Participants dress in revealing clothes, occupy public space, and
voice slogans that “rapists cause rape.” Aer numerous mares
across North America, the movement spread rapidly to Latin
America: including Argentina, Brazil, Chile, Colombia, and Mexico
among others—and oen specifically embraced sex workers and
LGBT people who were victims of sexual violence. In 2012–3,
Slutwalk protests in ea of India’s major cities following highly
publicized rape cases emphasized reversing shame, women’s right to
public space, and oice of Western or traditional dress. Slutwalks
around the globe have oen included testimonials by rape survivors,
and established ongoing campaigns. ey have oen pushed
protectionist local authorities to adopt a more rights-based, survivor-
centered response to rape, especially in Canada and the U.S.
At the global level, Amnesty International’s 2014 campaign for
sexual and reproductive rights does a different kind of work—
mainstreaming body politics. e Amnesty campaign called “My
Body, My Rights” links sexual violence to gender discrimination,
reproductive autonomy, and access to health services. e campaign
is significant first because it marks a further expansion of the
flagship human rights organization’s agenda from civil and political
rights, and growing turn towards women’s rights—contra Hopgood’s
critique of Amnesty as bureaucratized, elitist, and conservative.29
Beyond this, the campaign adopts a rights-based approa to several
issues whi have been treated mainly as health and development
1012
concerns at the global level; Amnesty explicitly targets the U.N.
Commission on Population and Development to incorporate
reproductive rights. e Amnesty campaign pulls together, promotes,
and lends its brand to a broad set of ‘sexual and reproductive rights’
proposed diffusely across the international women’s rights regime:
decision-making, information, and access to contraception, abortion,
and ild-bearing services; oices of sexual and family partner and
whether and when to bear ildren; freedom from discrimination,
coercion, and violence in sexuality, marriage, and ild-bearing. “My
Body, My Rights” explicitly includes the rights of LGBT and sexual
minorities. Like all Amnesty global campaigns, a range of country
cases are osen from different regions and cultures to reflect cross-
cuing problems and advocate universal values: Nepal, Burkina
Faso, El Salvador, the Maghreb, and Ireland. Amnesty specifically
critiques the violations of reproductive rights in the abortion laws in
Spain, Nicaragua, and Ireland; health and rights consequences of
failure to enforce the minimum marriage age in Burkina Faso and
Nepal; impunity for domestic violence in El Salvador; Morocco’s law
allowing rapists to marry victims that resulted in the Mar 2012
suicide of a ild bride and local protest; and the denial of health
rights from discrimination and violence in women’s reproductive
lives.30
Turning now to critiques of the limitations of human rights’ roots,
demographics, legal basis, and power dependencies, we will
interrogate the expansion and vernacularization of rights as
movement.
1013
Critiquing the critics of human rights history
and practice
More grounded empirical analysis of the limitations of human rights
is generally more constructive, and at least its conclusions can be
contested on the basis of the evidence provided. But while critics
su as Ignatieff and Meister provide useful historical and social
context for the rise of rights regimes, they move on to reduce the
power and potential of rights to their founding circumstance and the
political interests of some proponents. For Ignatieff, the culprits are
misguided post-Cold War liberal interventionists and for Meister,
privileged “beneficiaries of past injustice” seeking to exculpate their
structural exploitation with accountability for war criminals and
political pariahs.31 In his early work Surrendering to Utopia, Mark
Goodale similarly critiques the treatment of cultural rights and
indigenous identity in the Universal Declaration of Human Rights by
the bourgeois artistic tastes of one of its Canadian authors,32 and
contends that
…the emergence of transnational human rights has been tightly encased in a paradox: a
tiny vanguard of cosmopolitan philosopher-kings…is the means through whi the
ideas of universal sameness, ethical and legal equality, and human dignity are being
inculcated into the very cells of the global body politic.33
But this kind of historical critique can lead to a historical
reductionism that undermines the emancipatory potential of rights
as movement—and is oen subsequently revised by some of the
same critics in the light of emerging realities of expanding rights
beyond their liberal origins.34
India’s Gulabi Gang shows the power of practice and rights-based
mobilization far beyond its liberal Western origins, acting locally to
1014
stop violence against women and make the personal political. While
some of the rights they seek have been impinged by neoliberal
development, mu of the violence these women experience is more
feudal and patrimonial than capitalist, and mu of their campaign
seeks equal access to hospitals and courts. e movement began
when Sampat Lal, a village social worker in rural India, founded a
grassroots women’s group in 2006 to rescue women and the rural
poor from violence, and pressure corrupt local officials. By 2008, she
had enrolled an estimated 20,000 poor, mostly lower-caste women in
the “Gulabi Gang”—known for their symbolic pink saris and bamboo
stis. Sampat and her dozens of ‘district commanders’ investigate
reports of mistreatment, mediate with families and village officials,
accompany injured women for medical treatment, advocate with
police, organize local protests, and mobilize the media. e Gulabi
Gang also advocate for their members’ broader livelihood and
economic rights and essential government services in one of India’s
poorest and most corrupt regions: access to roads, pension cards, and
subsidized food supplies. For example, the Gulabi Gang several times
raided trus and shop owners suspected of pilfering government
grain. Moving beyond the state to social protection from private
wrongs, the campaign supports and witnesses ‘love marriages’—and
assists threatened couples to escape family threats. A younger
woman ‘district commander’ who joined in the wake of a
beleaguered ‘love marriage’ explained, “It feels good to fight other’s
fights and to stand up against injustice. To fight with the police is a
good thing because the police do all the wrong things.”35
In a distinct but parallel vein, post-colonial critics like Mutua and
Mohanty depict rights as a guise for neo-colonial domination
through false liberalism.36 Far from a colonial or bourgeois
imposition, oen-forgoen struggles for women’s empowerment
have been precursors or corollaries of many liberation movements.
As Danielle McGuire discusses in At the Dark End of the Street,37
American civil rights leader Rosa Parks was originally an anti-rape
1015
activist, from 1944–55. Women in Egypt have mobilized for safety
and self-determination before, during, and aer the Arab Spring,
protesting against the Mubarak, Morsi, and the current military
regimes alike. Similarly, the transnational indigenous coalition
Women Living Under Muslim Laws was started in Pakistan but has
spread to over 70 countries, seeking to reconcile Islamic values with
women’s human rights. In 2007, the movement succeeded in
overturning Pakistan’s sharia-inspired Hudood Ordinance that
required four male witnesses to sexual assault.38 All of this
represents rights as movement.
Human rights groups in developing countries are oen criticized
as elite, unduly legalistic, or servants of international interests.
Academic critiques along these lines are now tragically eoed by
repressive governments that seek to censor human rights groups,
forbid foreign funding, and/or ban transnational advocates,
especially in Egypt, Russia, and China. But more careful critics in
Straus and Stern’s The Human Rights Paradox show that local and
global human rights movements co-construct and mutually
transform.39 Reproductive self-determination movements against
tradition-based violence usually begin as modernizing humanitarian
efforts that later develop community-based campaigns for norm
ange, and gain traction as they “vernacularize.”40 Examples include
the African women’s movement Tostan mobilized against FGM/C,
the Mukhtar Mai Women’s Organization in Pakistan against honor
killing, and the coalition of civil society groups against ild
marriage, Girls Not Brides (331 member groups in 58 countries).
e transformation of international humanitarian campaigns
against FGM/C and the growth of local and horizontal movements
illustrate the transformative potential of rights talk. e Tostan
program began by bringing together village women to imagine a
vision for their future, and teaes them the international human
rights treaties that Senegal has signed. Classes and village outrea
by class members make extensive use of testimonial and theater. A
1016
woman leader of one of the first villages to publicly abandon
FGM/C, in 1996, explained that key elements were the realization
that most women in the world do not practice it, an understanding
and visibility of their bodies, and a new understanding of their
rights. “It was this knowledge that made us confident in our right to
oose for ourselves what happens to our bodies….”41 An older
woman who had initially defended the practice announced the
village decision to stop FGM to the press, “Where we once had fear
we now have courage, because we have been given knowledge. We
know our rights and the rights of all women. We have the right to
dignity and the confidence to ange customs if they do not bring us
that dignity.”42 By 2007, over 2,500 villages had made public
declarations of abandonment of FGM/C. e human rights
education quily expanded to a national dialogue and local
interventions on ild marriage, domestic violence, and rape. e
Tostan program was extended to Guinea in 2002, Somalia in 2005,
and later Gambia, Guinea-Bissau, and Mali. It has now reaed over
10 million people.43
In a different mode of thematic critique, some authors over-
generalize well-founded analyses of the failures and hegemonic
dependencies of humanitarian intervention to the wider terrain of
rights struggle.44 When Barne tries to correct this overrea by
singling out human rights versus humanitarian organizations, or
Hopgood critiques global vs. locally authentic groups,45 they point
towards useful distinctions but lose tra of the inter-penetration
and co-evolution of these groups’ level and purpose. At the global
level, ‘women’s rights as human rights’ has expanded the agenda of
development, human rights, and even foreign policy organizations.
e flagship organization Human Rights Wat established a section
over a decade ago on women’s rights, whi has carried their
campaigns into areas of social and economic rights well beyond the
ken of conventional liberal norms—including health rights, land
rights, and cultural rights—as well as specific initiatives on sexual
1017
violence su as aaing the failure to process rape kits that was
impeding legal action in several states of the U.S. In the heart of the
development regime, the World Bank has recently adopted a rights-
based approa to women’s economic empowerment, sponsoring
projects su as analyses of barriers to women’s rights in family law,
interventions for domestic violence, and training programs to foster
women’s ‘agency’ in households and communities. e World
Bank’s own studies now push beyond conventional neoliberal
development for women’s rights, as they note that their own efforts
at economic empowerment through promoting women’s skills,
income, and market participation are incomplete without decision-
making capacity.46
Another distorted critique projects the history and logics of some
aspects of international law—usually response to war crimes and/or
transitional justice—to all forms of rights violation, ronic and
acute, public and private. Along with Fassin and Moyn, Meister
suggests that sociology is destiny, as the unsurprising relative
privilege of activists taints their autonomy. ese authors aver that
structural guilt blurs individual accountability and imposes false
dualisms, crowding out politics and vitiating the potential of law to
bring justice.47 Posner goes on to posit the “death” of international
human rights law as an imposed global construct.48 Yet despite this
justifiable caution about the hieraries of movements and the limits
of law, accounts of struggles on the ground show shiing
relationships of agency, along with creative blends of legal, social,
and policy ange. More constructive critics like Rajagopal and de
Sousa Santos instead point to the possibility of “cosmopolitanism
from below” and law as a site of resistance.49
is is increasingly true for violence against women. e
understanding of “rape as a weapon of war” came from a
transnational coalition of local and global women’s groups
participating in the international criminal tribunals for Rwanda,
Yugoslavia, and the draing of the International Criminal Court.50
1018
e global frame of ‘femicide’ for gender-based killing, created by an
American professor during the 1970’s, was discovered and adopted
by Mexican human rights activists during the 1990’s as they
protested women’s disappearances in Juarez. It was influential in
securing an Inter-American Court judgment against Mexico that
required monitoring, reforms, and reparations (the Coon Field
Case). is powerful frame then disseminated throughout the region
to mobilize aention to similar problems in Guatemala, El Salvador,
and Honduras, and finally became generalized at the global level
during the current decade through U.N. conferences to encompass
“harmful traditional practices” su as female infanticide in India
and China and targeted killing of alleged wites (see Femicide, a
record of a 2013 U.N. workshop with testimony from a dozen
countries and the U.N. Human Rights Commission).51 e passage of
femicide laws has transformed state response to domestic violence in
dozens of countries in Europe and the Americas.
Finally, then, how can a grounded, dialectical constructivist
critique expand human rights practice? Constructivist criticism
shows how communicative action can push rights beyond their legal
and liberal origins to encompass new populations and issues.
1019
Constructivist human rights criticism:
speaking rights as critical discourse
Human rights campaigns contesting violence against women are
similar to other human rights campaigns, in that they use
‘communication power’ to level the playing field with oppressive
states and societies, and to appeal for transnational support. At the
same time, strategic information appeals help to constitute new
identities and forms of agency.52
is stands in sharp contrast to post-modern pessimism about the
death of the subject, the impossibility of agency, and the hegemony
of modern discourse. It comports mu more with a Gramscian view
of the potential counter-hegemony of civil society, and a
communicative action orientation—expanded by constructivism to
show the emancipatory power of public spee to raise
consciousness, enter the political agenda, constitute collective
identities, frame social problems in salient rubrics, humanize the
oppressed, shame and leverage power-holders, and rea new
audiences for solidarity.53
To humanize the oppressed, personification is one of the main
meanisms of information politics. While it begins by aracting
aention to ‘innocent victims,’ personification can also bring
awareness to hidden suffering, build empathy with marginalized
Others, and foster greater capacity for self-representation.54 e
deaths of emblematic and sympathetic victims of rape has played a
critical role in overcoming the privatization of sexual violence, and
inspiring broad identification with women’s insecurity. e 2012
Delhi rape of a young pharmacy student broke through a decade of
denial about rising sexual violence in India; multi-sectoral signs and
slogans constantly identified the appealing working-class young
1020
woman as a ‘daughter.’ In similar fashion, the best-selling book
ronicling the honor-based aa on girls’ education advocate
Malala Yousafzai diffused understanding of violence against rights
defenders in Pakistan across cultural barriers and transformed her
from victim to advocate, culminating in her spee at the U.N. whi
advocated for girls’ empowerment.55 In the MENA region, the cause
celebre of Neda Soltan empowered Iran’s 2009 Green Movement.56
Another meanism of struggles against violence against women
is the public performance of revelation, solidarity, and contestation.
Testimonial theater su as the Vagina Monologues reveals hidden
violence, maps paerns, and mobilizes global campaigns. e global
V-Day movement now generates hundreds of annual performances
worldwide, and the 2013 and 2014 ‘One Billion Rising’ dance
mobilization against violence in over 200 countries. Cultural activists
like Pussy Riot use musical performances in contested institutions to
decry patriary and the Putin regime. Women in Egypt form Dance
Mobs to reclaim public space from harassment and repression.
e confrontational protest group Femen presents a fascinating
combination of situated protest and transnational solidarity—seeking
to radically reclaim the body. e movement is based in Ukraine, but
has posted on-line in Tunisia, clashed with riot police in France,
ain-sawed a cross memorial in Kiev to support Russia’s Pussy Riot,
confronted Vladimir Putin at a trade fair in Germany, invaded an
Italian polling station to protest Silvio Berlusconi, and staged an
“International Topless Jihad Day” outside several European mosques.
eir trademark tactic of political theater—exposing their breasts
and painting their bodies with slogans contesting patriary—aims
to reverse the power of female nudity from objectification to self-
determination; they refer to themselves as “sextremists.”57
Widening access to media and new uses of media are also shiing
the terrain of women’s human rights. Media campaigns to reveal key
cases and the national prevalence of domestic violence have been
influential in breaking through state denial and sparking national
1021
debate in Turkey, China, India, and Brazil—among others. Following
a decade of sharply rising reports of violence against women in
Turkey, and in the wake of a prominent rape and murder of an
urban, educated woman that generated massive street protests in
Istanbul, a social media campaign to encourage women to report
violence received 800,000 posts.58 In China, American-born violence
survivor Kim Lee turned to social media aer she was unable to
secure legal response to ronic assault by her influential
entrepreneur husband, and the resulting public outcry shamed the
state into action and encouraged other victims to mobilize in a
constrained authoritarian seing. Out of India, a path-breaking
ironic video by young activists against rape, “It’s Your Fault,” uses
bier humor to contest shame and blaming the victim. It went viral
on YouTube, with over 3 million views, and became notably popular
in Brazil. In that country, a shoing public opinion survey blaming
“women who dress or behave in certain ways” for rape garnered a
powerful political theater response, started by a young journalist.
Aer 59 percent of 3,810 respondents in 212 cities said that if
Brazilian women knew how to be behave, there would be fewer
rapes, activists responded with a media campaign: “nobody deserves
to be raped.”59 Brazilian women stripped to the waist and covered
their breasts with signs bearing the hashtag:
#nooneDeservesToBeRaped (in Portugese:
#ninguemMereceSerEstrupada). When the activists were threatened,
Brazil’s female President tweeted her support.
1022
Human rights: “the dream of a common
language”
As the MENA region struggles to navigate patriaral legacies,
exploitive paerns of political economy, and equally repressive
theocratic and authoritarian nationalist regimes that all combine to
threaten human rights, a reflexively post-colonial analysis frequently
fails to deliver. A 2011 article in the International Feminist Journal of
Politics dismissed the mainstream women’s rights movement in
Egypt and U.N. efforts against sexual harassment as a bourgeois
Orientalist project. e author asserted that,
In Egypt, between 2003 and 2010, internationalist feminist campaigns advocated anti-
harassment projects that demonized working-class youth masculinities as well as
‘disreputable’ public femininities in an aempt to intensify the policing of the city and
discipline public sociability. rough a politics of respectability and ‘strange bedfellow’
processes of NGO-ization, this state-allied, pro-enforcement project demobilized class-
based movements for democratic ange.60
is theoretical template is belied by realities on the ground: there is
no evidence that liberal feminist efforts demobilized class-based
movements; rather, both were overwhelmed first by Islamism and
then authoritarianism. Moreover, the gendered state terror of both
the populist Islamist Morsi government and the current military’s
repression of liberal feminist projects cannot be ignored as key
variables that contributed to the demise of the Arab Spring. Any
prescriptive rhetorical analysis that discounts liberal rights misses
the interdependence and indivisibility between women’s right to
bodily integrity in public space and political participation to
advocate democratic ange. In a dynamic dialectic that contradicts
this falsely ‘critical’ misreading of women’s agency, we are now
witnessing the reemergence of women’s anti-harassment movements
1023
as one of the few spaces of human rights resistance in Egypt, that is
gaining traction through media, mobilization, and contestation of
dominant norms.61
Boaventura de Sousa Santos asserts the value of human rights as a
‘lingua franca’ for liberation, despite its limitations. Like all
mobilizing frames, human rights can be partial, overly abstract, or
exploited as a guise for interests. All too oen, rights struggles do
not aieve their goals, or have unintended consequences. Social
movements have organizational logics, contradictions, limits, and
reversals. ey are usually initiated by people who have some
resources or privilege, because the most directly affected are oen
not in a position to mobilize. All of this is old news—and it deserves
to be allenged and improved, but not abandoned.
e breaking story is news we can use: another world is possible,
and the social construction of human rights is happening in many
places, big and small, local and global. inking critically about
human rights itself can help us to construct more carefully—when
academic critique is engaged, dynamic, evidence-based, and
dialectical.
1024
Notes
1 Riard Rorty, Contingency, Irony, Solidarity (New York: Cambridge University Press,
1989).
2 Janet Afary and Kevin Anderson, Foucault on the Iranian Revolution: Gender and the
Seductions of Islamism (Chicago: University of Chicago Press, 2005).
3 World Health Organization, Global and regional estimates of violence against women,
2013. hp://apps.who.int/iris/bitstream/10665/85239/1/9789241564625_eng.pdf (accessed
July 18, 2015).
4 Christine Hong, “Reframing North Korean human rights,” Journal of Critical Asian
Studies 45, no. 4 (2012): 511.
5 Hong, “Reframing North Korean human rights,” 511.
6 Slavoj Zizek,“Against human rights,” New Left Review 34 (2005); Cheah, Pheng. Inhuman
Conditions: on Cosmopolitanism and Human Rights (Cambridge, MA: Harvard
University Press, 2006).
7 Rhoda E Howard-Hassmann, “State-induced famine and penal starvation in North
Korea,” Genocide Studies and Prevention: An International Journal 7, no. 2 (2012); Mark
Fitzpatri, “North Korea: is regime ange the answer?” Survival: Global Politics and
Strategy 55, no. 3 (2013): 7–20.
8 Keith Watenpaugh, Bread from Stones: The Middle East and the Making of Modern
Humanitarianism (Berkeley, CA: University of California Press, 2015).
9 Watenpaugh, Bread from Stones.
10 Giorgio Agamben, Homo Sacer (Stanford: Stanford University Press, 1998); Didier Fassin,
Humanitarian Reason: A Moral History of the Present (Berkeley: University of
California Press, 2012); David Chandler, “e revival of Carl Smi in international
relations: the last refuge of critical theorists?” Millennium: Journal of International
Studies 37, no. 1 (2008): 27–48.
1025
11 Didier Fassin, Humanitarian Reason: A Moral History of the Present (Berkeley:
University of California Press, 2012).
12 Samuel Moyn, The Last Utopia: Human Rights (Cambridge, MA: Harvard University
Press, 2010); Bronwyn Leebaw, Judging State-Sponsored Violence, Imagining Political
Change (New York: Cambridge University Press, 2011).
13 Charles Beitz, The Idea of Human Rights (New York: Oxford University Press, 2009);
Miael Goodhart, “Human rights and the politics of contestation,” in Mark Goodale
(ed.). Human Rights at the Crossroads (New York: Oxford University Press, 2012);
Riard Hiskes, “A very promising species: From Hobbes to the human right to water”
pp. 224–46 in Steve J. Stern and Sco Straus (eds), The Human Rights Paradox:
Universality and Its Discontents (Madison: University of Wisconsin Press, 2014); Martha
Nussbaum, Women and Human Development: The Capabilities Approach (New York:
Cambridge University Press, 2000).
14 Hilary Charlesworth, “Feminist ambivalence about international law,” International
Legal Theory vol. 11 (2005): 1–8.
15 Eric Posner, The Twilight of Human Rights Law (New York: Oxford University Press,
2014).
16 Miael Barne, The Empire of Humanity: A History of Humanitarianism (Ithaca:
Cornell University Press, 2011); Alex DeWaal, Famine Crimes: Politics and the Disaster
Relief Industry (New York: Oxford University Press, 1997).
17 Mark Goodale, Surrendering to Utopia (Stanford: Stanford University Press, 2009); Steve
J. Stern and Sco Straus, (eds), The Human Rights Paradox: Universality and Its
Discontents (Madison: University of Wisconsin Press, 2013).
18 Stephen Hopgood, The Endtimes of Human Rights (Ithaca, NY: Cornell University Press,
2013).
19 Winifred Tate, Counting the Dead: The Culture and Politics of Human Rights Activism in
Colombia (Berkeley, CA: University of California, 2007); Nancy Postero, Now We Are
Citizens (Stanford: Stanford University Press, 2007).
20 Robert Meister, After Evil: A Politics of Human Rights (New York: Columbia University
Press, 2012).
1026
21 Miael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton
University Press, 2001).
22 Giorgio Agamben, Homo Sacer (Stanford: Stanford University Press, 1998) 180.
23 Alison Brysk, Speaking Rights to Power: Constructing Political Will (New York: Oxford
University Press, 2013).
24 Giorgio Agamben, The State of Exception (Chicago: University of Chicago Press, 2005).
25 “Protesters demand greater protection for domestic violence victims,” The Daily Star
Lebanon, 30 May 2015.
hp://dailystar.com.lb/default.aspx/Business/News/News/News/Lebanon-
News/2015/May-30/299892-protesters-demand-greater-protection-for-domestic-
violence-victims.ashx (accessed July 16, 2015).
26 Mala Htun and Laurel Weldon, “e civic origins of progressive policy ange:
combating violence against women in global perspective, 1975–2005,” American Political
Science Review vol. 106, no. 3 (2012): 548–69; Beth Simmons, Mobilizing for Human
Rights: International Law and Domestic Politics (New York: Cambridge University Press,
2009).
27 Alison Phipps, The Politics of the Body: Gender in a NeoLiberal and Neo-Conservative
Age (Malden, MA: Polity Press, 2014).
28 Chandra Talpade Mohanty, “Transnational feminist crossings: on neoliberalism and
radical critique,” Signs 38, no. 4 (2013): 967–91.
29 Stephen Hopgood, The Endtimes of Human Rights (Ithaca, NY: Cornell University Press,
2013).
30 “My body my rights,” Amnesty International, 19 June 2015.
www.amnesty.org/mybodymyrights (accessed July 16, 2015).
31 Robert Meister, After Evil: A Politics of Human Rights (New York: Columbia University
Press, 2012); Miael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ:
Princeton University Press, 2001).
32 Mark Goodale, Surrendering to Utopia (Stanford: Stanford University Press, 2009) 77.
33 Goodale, Surrendering to Utopia, 96.
1027
34 Chandra Talpade Mohanty, “Transnational feminist crossings: on neoliberalism and
radical critique,” Signs 38, no. 4 (2013): 967–91; Miael Goodhart, “Human rights and
the politics of contestation,” in Mark Goodale (ed.), Human Rights at the Crossroads
(New York: Oxford University Press, 2012).
35 Amana Fontanella-Khan, Pink Sari Revolution: A Tale of Women and Power in India
(New York: Norton: 2013) 130.
36 Chandra Mohanty, Decolonizing Feminism (Chapel Hill: Duke University Press, 2003);
Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia:
University of Pennsylvania Press, 2002).
37 Danielle McGuire, The Dark End of the Street: Black Women, Rape, and Resistance
(Random House, 2010).
38 Ziba Mir-Hosseini and Vanja Hamzic, Control and Sexuality: The Revival of Zina Laws
in Muslim Contexts (London: Women Living Under Muslim Laws, 2010).
www.wluml.org/node/6869 (accessed July 16, 2015).
39 Steve J. Stern and Sco Straus, (eds), The Human Rights Paradox: Universality and Its
Discontents (Madison: University of Wisconsin Press, 2013).
40 Sally Engle Merry, Human Rights and Gender Violence: Translating International Law
into Local Justice (Chicago: University of Chicago Press, 2006).
41 Aimee Molloy, However Long the Night (New York: Harper Collins: 2013) 19.
42 Molloy, However Long the Night, 20.
43 Molloy, However Long the Night.
44 Alex DeWaal, Famine Crimes: Politics and the Disaster Relief Industry (New York:
Oxford University Press, 1997); Miael Barne, The Empire of Humanity: A History of
Humanitarianism (Ithaca: Cornell University Press, 2011).
45 Stephen Hopgood, The Endtimes of Human Rights (Ithaca, NY: Cornell University Press,
2013).
46 Ana Maria Munoz Boudet, Pai Petes, and Carolyn Turk with Angelica umala, On
Norms and Agency: Conversations about Gender Equality with Women and Men in 20
Countries (Washington, DC: World Bank, 2013).
1028
47 Robert Meister, After Evil: A Politics of Human Rights (New York: Columbia University
Press, 2012).
48 Eric Posner, The Twilight of Human Rights Law (New York: Oxford University Press,
2014).
49 Balakrishnan Rajagopal, International Law from Below: Development, Social Movements,
and Third World Resistance (New York: Cambridge University Press, 2003); Boaventura
de Sousa Santos and Cesar Rodriguez-Garavito, (eds), Law and Globalization from
Below: Towards a Cosmopolitan Legality (New York: Cambridge University Press, 2005).
50 Pam Spees, “Women’s advocacy in the creation of the international criminal court:
anging the landscapes of justice and power,” Signs 28, no. 4 (2003): 123.
51 Academic Council on the United Nations System, Femicide: A Global Issue that
Demands Action, 2013. www.genevadeclaration.org/fileadmin/docs/Co-
publications/Femicide_A%20Gobal%20Issue%20that%20demands%20Action.pdf (accessed
July 16, 2015).
52 Alison Brysk, Speaking Rights to Power: Constructing Political Will (New York: Oxford
University Press, 2013).
53 Alison Brysk, Speaking Rights to Power: Constructing Political Will (New York: Oxford
University Press, 2013); Manuel Castells, Communication Power (New York: Oxford
University Press, 2009); Karen Zivi, Making Rights Claims (New York: Oxford
University Press, 2011).
54 Mahew Weinert, Making Human: World Order and the Global Governance of Human
Dignity (Ann Arbor: University of Miigan Press, 2015).
55 Malala Yousafzai, I Am Malala (New York: Lile Brown: 2013).
56 Alison Brysk, Speaking Rights to Power: Constructing Political Will (New York: Oxford
University Press, 2013).
57 Rhiannon Lucy Cosle, NewStatesman. 29 Mar–11 April 2013; Claire Suddath, “Inna
Shevenko’s Femen: sho, irritate, frighten, inspire,” Bloomberg Business, April 24,
2014. www.bloomberg.com/bw/articles/2014-04-24/inna-shevenkos-femen-sho-
irritate-frighten-inspire.
1029
58 Gemma Newby, “Turkish women share stories of abuse,” BBC, February 17, 2015.
www.bbc.com/news/blogs-trending-31504416 (accessed July 9, 2016).
59 Terrence McCoy, ‘Nobody deserves to be raped’ campaign responds to shoing
Brazilian survey,” The Washington Post, 3 Apr 2014.
www.washingtonpost.com/news/morning-mix/wp/2014/04/03/i-dont-deserve-to-be-
raped-campaign-responds-to-shoing-brazilian-survey/ (accessed July 16, 2015).
60 Amar, Paul. “Turning the gendered politics of the security state inside out? Charging the
police with sexual harassment in Egypt,” International Feminist Journal of Politics 13,
no. 3 (2011): 299–328.
61 Viy Langhor, “Why Egyptians have mobilized against public sexual violence,” The
Washington Post, April 6, 2016. hps://www.washingtonpost.com/news/monkey-
cage/wp/2016/04/06/why-egyptians-have-mobilized-against-public-sexual-violence/
(accessed July 8, 2016).
1030
Selected Bibliography
Brysk, Alison. Human Rights and Private Wrongs. London:
Routledge Press, 2005.
Brysk, Alison. Speaking Rights to Power: Constructing Political Will.
New York: Oxford University Press, 2013.
Castells, Manuel. Communication Power. New York: Oxford
University Press, 2009.
de Sousa Santos, Boaventura and Cesar Rodriguez-Garavito (eds).
Law and Globalization from Below: Towards a Cosmopolitan
Legality. New York: Cambridge University Press, 2005.
Engle Merry, Sally. Human Rights and Gender Violence: Translating
International Law into Local Justice. Chicago: University of
Chicago Press, 2006.
Nussbaum, Martha. Women and Human Development: The
Capabilities Approach. New York: Cambridge University Press,
2000.
Rajagopal, Balakrishnan. International Law from Below:
Development, Social Movements, and Third World Resistance.
New York: Cambridge University Press, 2003.
Risse, omas, Steve Ropp and Kathryn Sikkink (eds). The Persistent
Power of Human Rights: From Commitment to Compliance. New
York: Cambridge University Press, 2013.
1031
31
Making Human Rights ‘Universals’
from the Ground Up?
Lisa S. Alfredson
1032
Introduction
International human rights are increasingly integral to many
domestic landscapes—a significant sign of consensus as to their
global relevance and legitimacy. Yet it remains the case that
individual value judgements are culturally informed, and in our
diverse world contention about human rights continues in various
forms. e downward and outward geographical spread or
expanding implementation of international human rights
demonstrates some degree of compliance with international law, but
not necessarily domestic legitimacy among actors with different
normative traditions. In this universalism versus relativism debate,1
contention about the origins and global relevance of human rights
generally takes the norms in question for granted as pre-formed,
unanging, or fixed. Yet, what we think of as ‘universal human
rights’ today is in many ways different from the human rights of
yesterday; human rights have adapted, anged, and expanded with
the anging times. e clearest evidence of this is the proliferation
of human rights law since the Universal Declaration of Human
Rights was adopted in 1948. To name a few prominent developments,
new Conventions on women (1979), ildren (1989), and people with
disabilities (2006) have brought profound anges in human rights’
scope and substance, overcoming entrened human rights’ biases
that excluded non-state actor violence, the ‘private’ or family sphere,
and individual rights within social relations of dependence and
difference.
is apter takes the emergence of new human rights as an
opportunity to explore the role of contemporary domestic actors in
shaping what the world thinks of as human rights—an upward and
outward process of human rights creation whi speaks to human
1033
rights’ global legitimacy. is point of departure differs from a
common assumption that domestic actors implement pre-made
human rights whilst human rights creation is a product of high-level
politics prone to undue influence by Western countries. Can
‘universal’ human rights be created from the ground-up? How and
with what implications?
It is suggested that globally diverse actors within domestic
identity-based movements not only shape and reconfigure existing
human rights to fit their needs and understandings, but sometimes
trigger the creation of entirely new human rights internationally. In
doing so, these actors allenge the status quo of human rights and
contribute to their global legitimacy. Section I discusses influential
resear regarding the ‘downward’ spread of international human
rights into domestic contexts, whi opens a view toward key
processes and structures through whi domestic and international
actors and norms interact, and yet neglects potential ‘upward’
impacts. Section II inverts the process, describing ‘upward’ processes
as domestic actors seek substantive expansions of international
human rights through domestic struggles against identity-based
discrimination, seing national human rights precedents that trigger
international ange. Using the framework developed, evidence from
two ‘new’ human rights is explored: (a) gender-persecution and
gender-violence; (b) sexual orientation and gender identity. ese
influential cases illuminate how human rights creation has been
propelled by globally diverse actors working from the ground up,
precisely in the face of entrened human rights interpretations
adverse to them, even at times without the aid of international
actors during key formative stages. When domestic identities
allenge the human rights status quo to develop new human rights,
they do not undermine but rather engage the evolutionary potential
of human rights, adding legitimacy to them.
1034
Implementing versus creating ‘universal’
rights
A major topic of resear in human rights is the process through
whi international human rights influence domestic contexts and
spread across states. Findings commonly point to the importance of
domestic and transnational nongovernmental actors joining forces to
influence violator states, actually altering state identities and
interests to bring about human rights implementation. Specifically,
existing human rights are seized from below by domestic actors with
intra-cultural legitimacy,2 baed by international actors and norms
able to create pressure from above.3 However, when it comes to the
creation of new international human rights, the role of domestic
actors remains under-theorized and under-researed.4 To illuminate
a framework for domestic actor influence in this area I take a new
look at theories of (a) norm compliance, ‘cascades’ and ‘boomerangs,’
and (b) norm adaptation, standard-seing and emergence.
(a) Downward and outward: norm compliance,
cascades, and boomerangs
While human rights compliance is rarely straightforward and its
measurement can be problematic,5 the spread of human rights
within and across states is generally thought to support human
rights’ relevance and legitimacy.6 Legitimacy however is not merely
an outcome of compliance, but of the process through whi
compliance is aieved. Legitimacy is an undercurrent of social
constructivist resear whi explains the difference between fragile
and fully-fledged state commitment to human rights as political
1035
struggle mobilized from below and involving human rights
socialization. In this view, genuine commitment whi moves states
toward real and hopefully enduring compliance occurs when
domestic constituencies supported by international actors and norms
pressure states to reconceptualize state interests in human rights
terms.
Domestic actors in this process are empowered by drawing upon
international human rights norms, and by globalization more
generally whi enables international actors to provide support by
interacting with local and state actors. International pressures are
brought to bear upon states through various means, including
foreign policy, quiet diplomacy, sanctions and aid conditionality;7
humanitarian intervention;8 advocacy by international
nongovernmental organizations 9 as masters of information and
symbolic politics su as ‘naming and shaming’;10 state enmeshment
in human rights ‘regimes’ involving intergovernmental bodies;11 and
the work of global civil society more generally.12 Transnational
Advocacy Networks (TANS), as principled issue-networks
encompassing diverse international and domestic actors and
institutions, may strategically use of any of these processes, and are
believed key to successful domestic struggles for human rights
compliance.13 Success is not felt merely as legal compliance, but as
normative compliance involving norm socialization at the domestic
level. Enduring compliance cannot be aieved through superficial
enforcement but becomes genuine and long-lasting when the norms
directing behavior alter state belief systems and identities. Actions
undertaken to pressure the state (advocacy, sanctions, diplomacy,
etc.) are therefore part of meta-conversation in whi socialization
occurs through the discursive ‘logics,’ shiing from consequences (it
should be done ‘or else’), to appropriateness (it’s the ‘right’ thing to
do), and capacity (it can be done).14
1036
Domestic norm socialization involving actions and discursive
logic is frequently described as an outcome of the ‘boomerang effect’
in whi local actors in norm violating states rea out or make a
‘boomerang throw’ to engage transnational support, whi
boomerangs ba to strengthen the domestic human rights
constituency and pressure violator states.15 Multiple ‘boomerang
throws’ whi may be necessary in any one case are visualized as a
‘spiral model’ of human rights ange.16 As the process repeats in
various countries, as different countries are exposed to TANs and the
increasing influence of the norms su networks promote,
transnational ‘norm diffusion’ occurs. is increases domestic
legitimacy, and in turn international legitimacy, of the norms in
question.17 With increasing international legitimacy a ‘norm
cascade’ may occur as countries adopt the norm more and more
quily.18
Several elements of the above solarship are key to the current
inquiry. First, it illuminates essential roles of domestic actors in
shaping states’ human rights agendas and interests, whose success
may even influence chain-reactions across states. Second, it suggests
globally diverse domestic actors who engage with human rights
laws, politics and socialization do support and strengthen global
legitimacy, because human rights are not simply imposed from
above but grasped from below; domestic actors are not passive
recipients but active agents of human rights ange. ird, while
domestic mobilizing for aieving human rights compliance is
unquestionably important, of equal importance are the processes and
infrastructures through whi they mobilize; these in theory might
be similarly used to aieve new human rights creations. Can human
rights ideational and legal ange move both ways, upward rather
than only downward? Or are human rights necessarily pre-created
and unaltered by domestic engagement? Can diverse domestic actors
also enhance human rights’ legitimacy by using their agency to
1037
shape, alter, or create the very substance of human rights they
engage?
(b) Toward substantive expansion: norm adaptation,
standard-setting, and emergence
We can distinguish two basic ways to create human rights. e first
orients around Donnelly’s (2003) idea that different cultures can
locate the source of human rights’ universality within their own
frame of reference (religion, philosophy, etc.) by reaing strong
consensus about core human rights principles, su as equality and
nondiscrimination, and allowing flexibility around weaker areas of
consensus at the level of implementation. e laer areas may be
adaptable to diverse contexts and populations. Adaptability in
implementation occurs in response to the demands of local actors
and can create significant variations, but must still reify core human
rights principles.19 is supports dialogical and iterative explanations
of how human rights aieve legitimacy through processes of intra-
cultural and inter-cultural dialogue. Su approaes allow
universalist moral aspirations but explain understanding of human
rights as historically and culturally contingent; diversity, complexity,
and historical variability of cultural factors may shape universal
aspirations. An-Naim (2002) explains, “normative universality in
human rights should neither be taken for granted, nor abandoned in
the face of claims of contextual specificity or cultural relativity.”20
Local actors from diverse cultural and political contexts must engage
in dialogue about how to appropriately adapt human rights norms to
specific contexts, while remaining true to spirit. What we might call
adaptive implementation of existing human rights can illuminate
new populations and subjects of human rights through, for example,
application of core norms on human rights to nondiscrimination.
1038
A second way of creating human rights is to set altogether ‘new’
human rights standards whi continue to support core human
rights principles but alter entrened interpretations. New human
rights may sometimes be an outgrowth of human rights adaptations.
New human rights are apparent in the emergence of new
international standards (hard or so law) that target previously
neglected populations (e.g. women’s, ildren’s rights), rights
violations (e.g. gender violence; ild military recruitment), or sub-
sets of rights (e.g. right to water within health rights). e important
point is that a new right goes beyond the extension of existing core
rights to new populations and issues (e.g. women’s or ildren’s
‘right to nondiscrimination’) and makes altogether new rights
explicit (e.g. ‘women’s rights’ and ‘ildren’s rights’ as human
rights) and therefore more powerful.
Human rights emerge not merely as legal constructs but as
principled beliefs or norms. Donnelly (2003) explains that the core
notion of “universality” in human rights consists of both moral and
international normative aspects. International normative
universality refers to a right being accepted as an ideal standard
through a strong show of international legal consensus among states.
Moral universality refers to the idea of individuals being entitled to a
right simply by being human, and to the right being held against all
other persons and institutions as one of the highest moral rights.21
Recognition of this duality casts light on traditional explanations of
how new human rights are created. Under legal positivism, human
rights standard-seing involves formal negotiations among states
that must rea agreement regarding particular abuses as legitimate
subjects of international law, and must set those abuses within the
human rights legal framework. is explanation produced
fascinating legal genealogies of human rights but excluded political
processes behind normative moral developments.
Studies of NGO activism, civil society, and Transnational
Advocacy Networks bring needed aention to the international
1039
influence of non-state actors and especially their moral normative
influence. States and intergovernmental bodies are influenced by
NGO and transnational activists who provide information, set a
moral tone, raise awareness, make policy recommendations and
lobby international players. Moreover, U.N. staff and state delegates
have increasingly sought contributions by NGO experts. Resear
has exposed NGOs’ invited, direct influence upon states negotiating
the 1948 Universal Declaration of Human Rights, and upon
numerous treaties and events since then through the subsequent
formalization of NGO participation within the U.N. system, lobbying
and the submission of official NGO statements and reports.22 NGOs
have also elaborated and refined their strategies, not only (as
discussed earlier) for influencing compliance but for influencing
treaty-making. NGOs find alternative ways of gaining entry to
international events,23 hold parallel conferences, produce shadow
reports, name and shame states that support harmful treaty
proposals, and even initiate treaty negotiations.24 In all these
processes TANs can facilitate linkage between local and
international actors wishing to shape international law, enable
NGOs to tap into diverse network constituencies (domestic or
international), and to lobby states and intergovernmental bodies.
TANs not only support the creation of new international standards,
but through embedded “international norm entrepreneurs” they
sometimes generate new ideas for international standards. Some of
the most studied TANs coalesced around new human rights
movements for women, ildren, and indigenous groups that sought
to shape international agendas.25
e involvement of su actors is now recognized in theories of
norm evolution. Finnemore and Sikkink’s (1998) influential work on
the norm life cycle describes “norm emergence” as the first stage.
Specifically, norms are said to emerge from international “norm
entrepreneurs” working from organizational platforms, especially
NGOs within larger international networks, who generate new ideas,
1040
persuade states to adopt new agendas and to become state norm
leaders that help diffuse a norm across the international arena.
“Norm cascade” is the second stage, when norm entrepreneurs and
norm leaders persuade a critical mass of key states to become ‘norm
leaders,’ leading to wider “norm diffusion” and ultimately a
“cascade” of states adopting the norm. is continues until stage
three, “internalization,” when the norm becomes taken-for-granted
and is no longer a maer of broad public debate.26
e idea of norm emergence tied to norm socialization,
mobilization and non-state actors has been important for
international relations and human rights resear. Although at first
glance resear seems to have aended to the role of domestic actors
in norm emergence, in fact conceptual problems and assumptions
obstruct our view. Mu empirical resear has used the term ‘norm
emergence’ too loosely, in fact describing three distinct (if inter-
related) types of phenomena without distinguishing between them.
In ea, the relationship between international norms and
international legal standards (hard or so law) is at best le
unaended and at worst taken for granted. Confusion rests in the
incomplete overlap between norms (collective expectations about
standards of behavior) and legal standards (collective expectations
formalized within institutional constructs). Accordingly, an
‘international norm’ may or may not be codified in international
law, and at the same time, what is ‘emerging’ may be new as an
international norm yet not necessarily new as an international legal
standard. Resear needs to clarify the kinds of norm-law relations
involved in any one case.
e first type of ‘norm emergence’ describes the international
spread of new domestic norms not formalized in international law.
Finnemore and Sikkink (1998) illustrate this type in the spread of the
women’s suffrage norm across domestic contexts in the nineteenth
and early-twentieth centuries, long before relevant international
standards. ey do not discuss international standards, admiing
1041
links between International Relations solarship and legal norms
are underdeveloped. Subsequently there is no aempt to evidence or
explain links between domestic suffrage movements and the creation
of relevant international standards, but rather the emergence of
vaguer international norms (although likely pertinent to later legal
norms). Moreover, they emphasize that the suffrage norm began to
‘cascade’ (signaling international norm creation) only aer
international organizations were mobilized.27 is perhaps
inadvertently distances domestic struggles from any potentially
direct ideational influence on international norms and standards,
whi is not studied; it is however possible that domestic struggles
worked to explicitly formulate the suffrage norm as internationally
relevant, mobilizing critical links. is first type of norm emergence
has been least studied and its’ incomplete aspects unaddressed.
More commonly, resear focuses on a second type of norm
emergence in whi existing international standards become an
‘international norm,’ again through norm diffusion and cascade
across domestic contexts. In this type, existing international
standards are taken for granted, their earlier creation or evolution
unstudied. e third type of norm emergence has been most studied,
resulting in detailed empirical work showing how existing
international standards and/or norms influence particular domestic
contexts, using ‘boomerang’ and ‘spiral’ models in whi domestic
actors play important roles. As these models involve domestic norm
socialization, norms are described as ‘emerging’ domestically. But
this type of norm emergence again takes pre-existing international
norm/standards for granted, e.g. and not linking their emergence
internationally to the actions of domestic actors.
In theories of norm emergence and transnational advocacy
pertinent to human rights creation, domestic struggles remain
inadequately understood, though it seems many of the necessary
elements are present. Can domestic actors mobilize new ideas and
international action about particular domestic issues as fiing
1042
subjects for international human rights? How do su struggles fit
into the big picture? We know that international norms never
develop “…in a normative vacuum but emerge in a highly contested
normative space where they must compete with other norms.”28 Yet
lile empirical or theoretical aention has been given to ‘norm
resistance,’29 especially within domestic contexts where states are
pressured to become ‘norm leaders’ for internationally novel rights
or norms. Nor has sufficient aention been given to links between
international law and internationally novel domestic norms more
generally.30 To explain the role of domestic actors creating new
human rights, the following builds on recognized paerns of norm
emergence and compliance, including domestic actors’ ability to
influence state identity and human rights interests and to generate
critical international ideas.
1043
Upward impacts: identity-based movements
and substantive human rights ange
How can domestic identity movements produce new human rights
from below? We know that international norms and national–
international interactions can enable domestic actors to successfully
bring about domestic anges in state interests and behaviors in line
with existing human rights. e argument here is that su processes
and structures enable domestic actors to influence states to adopt
new human rights that create international precedent, trigger
international norm emergence, and shape international standards.
e following identifies and explores domestic struggles that
preceded the creation of relevant international human rights and
even faced down an entrened human rights status quo. Su
struggles use mutually supporting processes of human rights
adaptation and new creation, simultaneously and sequentially, to
develop human rights relevant to new situations and excluded
populations.
rough su domestic-focused struggles, ideas may be explicitly
developed as fit subjects for international human rights, though at
first only adopted domestically. If successful, however, domestic
‘norm entrepreneurs’ may ki off the cycle of international ‘norm
emergence’ by pressuring their state to become ‘norm leaders’
pushing for the new rights transnationally and internationally. In the
same way that state norm leaders influence other states to adopt
existing rights (norm diffusion), international uptake of new
(domestic) human rights norms is possible through recognized
processes of transnational ‘norm diffusion.’ ey may produce
upward international norm ‘cascades’ when regional and
international institutions eventually take the new norm on board.
1044
Su domestic struggles may even help focus the work of TANs
around new rights, magnifying advocacy for new norm diffusion.
When national and international actors work to model supranational
human rights aer new human rights mobilized at a domestic level,
domestic actors can shape new international human rights.
e layered political context and identity-based legitimacy of
domestic actors is important. Struggles to develop new human rights
around previously neglected issues give diverse actors a stake in
giving life to human rights ‘universality.’ is occurs as domestic
actors claim political space to develop human rights framing within
national contexts, whi if successful, may spread outward and
upward to other contexts. In these cases substantive international
human rights ange is motivated by the desire for real ange on
the ground through implementation, but is obstructed by insufficient
human rights norms (the status quo). is partially inverts the order
of influence we see in boomerang and spiral models. As in human
rights implementation models, a set of well recognized and relevant
human rights exists at the international level (and some national
levels), but in a substantive human rights ange model, local actors
whose rights are violated domestically find their needs insufficiently
represented internationally. Discriminated nationally, and seemingly
loed out internationally, what can su actors do? One option is
for local actors to allenge the human rights status quo that
excludes them, operating in contexts where they may have beer
access and greatest need for ange to ameliorate their personal
suffering: nationally. By working to generate domestic anges in
how human rights are understood and applied, they become norm
entrepreneurs and may create new state norm leaders, the process
and outcome of whi may generate international recognition of
new human rights. If new human rights do take hold
supranationally, they may feed ba into domestic ange.
To summarize, in the process of substantive human rights
creation, pre-existing human rights are vital yet insufficient because
1045
not adequately constituted, as are national-level rights typically
expressed through citizenship rights. Both offer partial or limited
political space through whi ange can be demanded. e different
and incomplete political mobilizing structures and political
articulations of rights offered at both levels, may together provide a
means for local and transnational actors to push out rights frontiers.
Domestic developments and agitation for them may then spread
upward and outward. is puts into focus domestic actors’ roles,
diversity, and human rights allenges.31
is framework explains processes behind the vague idea
expressed elsewhere that domestic struggles may influence
international human rights, whi has rarely been studied
empirically and has been neglected in theory as shown earlier.
Donnelly (2013) observes, “Lists of human rights emerge from the
concrete sufferings of real human beings and their political struggles
to defend or realize their dignity” and any “authoritative list” must
emerge out of “an ongoing series of political struggles that have
anged our understanding of human dignity, the major threats
(both old and new) to that dignity, and the institutions, practices,
and values necessary to protect it.”32 To a certain extent it is taken
for granted that, as Stammers (1999) suggested, “ideas and practices
in respect of human rights have been socially constructed in the
context of social movement allenges to extant relations and
structures of power.”33 For example, the American and Fren
revolutions articulated concerns whi later became core to first-
generation civil and political human rights; second-generation
economic and social rights emerged out of socialist and workers’
movements of the nineteenth century; and third-generation rights
developed out of anti-imperialist movements whi mobilized claims
around national self-determination.34 But in those historical
movements ‘human rights’ were not always invoked given their
underdevelopment, and the influence of new national rights upon
1046
ideas of human rights was indirect, usually articulated as
international rights only later by international actors.
In contemporary cases involving explicit human rights claims,
direct links become more apparent. Since the 1960s, social
movements organized around identity issues have continued to
shape and constitute new human rights. Women’s, indigenous, and
many other groups “made extensive use of rights discourses and
proliferated whole new sets of rights claims, many of whi have
been articulated as claims for human rights” in whi case Stammers
argues “it might be accurate to see the socio-historical development
of ideas of human rights emerging as social movements identified,
recognized, and sought to allenge particular forms of power.”35
Social movements confront the status quo not just within society at
large, but within the international human rights system itself.36
Yet most studies look at identity movements’ cooptation of
existing human rights rather than their influence on the creation of
new ones. Rajagopal (2003) explains, “there is no tradition of socio-
legal resear in international law as there is in domestic law.
erefore, ‘thier’ descriptions of how norms and institutions
evolve—for instance through ethnography—are not common.” 37
What empirical evidence is there of domestic actors’ upward
influence on human rights creation? Recent resear suggests that
globalization enables disempowered local actors to allenge the
human rights status quo, articulate human rights gaps, and mobilize
substantive ange internationally;38 that domestic political and
cultural struggles have given legitimacy to controversial new human
rights, from the boom-up;39 and that non-Western social
movements have significant impacts upon international law.40 e
following builds case studies from su solarship as well as other
relevant work not directly focused on human rights creation, in
order to evidence domestic identity-based movements as early
drivers of ‘new’ human rights following the framework outlined. I
begin with a detailed case study of one internationally influential
1047
domestic movement for refugee women’s human rights, followed by
a panoramic view of human rights creation emerging across various
LGBTI domestic movements.
Gender persecution and gender violence
e first example of domestic identity-based actors shaping human
rights involves what is now known as ‘gender persecution’ in
refugee law. Alfredson (2008) demonstrates how a domestic
campaign involving a diverse range of citizens, residents and
stateless asylum seekers pushed for existing national-level rights to
be used as a model for the creation of new human rights, producing
a state norm leader for the new right and later, international
uptake.41 ey created new human rights.
Under the 1951 Convention Relating to the Status of Refugees, a
‘refugee’ is a person persecuted on the grounds of race, religion,
nationality, political opinion, or membership in a particular social
group, in a country unable or unwilling to provide protection to
them. In refugee determination processes, standard legal
interpretation equates ‘persecution’ with structural human rights
violations.42 e scope of recognized human rights is therefore
critical to the refugee process and the human right to asylum, and
also explains why women refugees have faced gendered obstacles to
safe asylum historically: women’s rights were not comprehensively
recognized as human rights until more recently. e idea of
accepting ‘sex’ or ‘gender’ as a persecuted identity or a structural
basis of persecution recognizable under the 1951 Refugee
Convention was simply a no-go. Gender bias within the law was
compounded by the discriminatory manner in whi receiving
countries limited female asylum seekers’ participation in refugee
hearings, for example by prioritizing claims by male family members
1048
and allowing male family members to speak for female claimants,
resulting in status dependency and inadequate representation.43
While gender persecution has inter-related structural components
(for example political and economic) its most visible aspect is sheer
violence. Manifestations include domestic violence, gender policing
in religious states, rape in war, and female genital mutilation, in
countries unable or unwilling to provide protection. In su cases,
asylum in a foreign country may be the only means to protection.
Right up to the early 1990s, despite the supposed universality of
human rights to physical security and nondiscrimination, su
gender-based violence was nowhere to be found in human rights
treaties. Rather, human rights were interpreted to explicitly exclude
gendered violence against women and girls as a ‘private’ rather than
public issue.44National rights to protection from gender-based
violence, or la of su rights, were perceived internationally as a
cultural prerogative.
In this context, women asylum seekers who made untraditional
and explicitly gendered refugee claims were an influential arm of an
emerging transnational movement to reconceptualize women’s
rights as human rights. Unlike many other human rights
movements, the main obstacle in this case was not inadequate
enforcement of international law but the rather the law itself, under
whi states could reject gender-based refugees and deport them
into danger zones. Perhaps surprisingly then, the primary target was
not international treaty-making bodies like the U.N., but one
particular state—Canada—and the most influential actors were not
international organizations but individual gender-based asylum
seekers. e domestic campaign for gender-based persecution to be
recognized as legitimate grounds for refugee status in Canada
peaked between 1992 and 1994. Although the first su refugee
campaign in the world, it had international impacts. As specific
human rights standards did not yet exist to ‘cascade’ down or be
graed onto the national context, campaigners worked to ange the
1049
biased human rights framework upon whi the state’s refugee
system was built and to mobilize Canada as a ‘norm leader.’ e
campaign was powerfully framed around asylum seekers’ political
identity as women, drawing genuine linkages with Canada’s
women’s movement and strategically engaging national values in
support of Canada as a norm leader for a new human right. In
contrast to the downward movement of existing supranational
norms into new national contexts, here asylum seekers’ national
human rights claims preceded and even triggered developments and
action supranationally.45
Resear shows that essential campaigners were women asylum
seekers from eighteen different countries across six regions—Africa,
Latin America and the Caribbean, Eastern Europe and Russia, the
Middle East, South America, and Southeast Asia. eir untraditional
refugee claims had been rejected and they were ordered deported.
How did these persecuted, disenfranised, and homeless females
ultimately succeed? Critical to their success was the support of a
small core network of Canadian nongovernmental organizations and
lawyers with the necessary expertise and connections. is
Canadian-based support, however, suggests a question human rights
skeptics commonly ask regarding whether Western NGOs push
foreign values onto, and misrepresent, vulnerable individuals.
Resear findings show that to the contrary, asylum seekers in this
campaign were politically conscious actors making decisions,
advocating for themselves and for a persecuted group, and it was
only together that asylum seekers and supporters engaged the media
and mobilized public outcry. Asylum seekers shared their rejected
claims and intensely personal stories of persecution with the media—
a decision mediated by both personal risks and political
considerations. In some cases doing so meant making themselves
known to deportation officials from whom they were hiding, and to
persecutors who might identify and locate them. Identifying
themselves as members of a specific persecuted group also meant
1050
viewing themselves in relation to the world and to a collective
identity—a political lens. As rejected claimants they felt
disempowered, yet desirous of rights to safety from gender violence
whi Canadian women already enjoyed under law. ey made
rational and strategic oices around a legitimate political debate
regarding their own identity and right to state protection. Asylum
seekers were deeply embedded within a complex political process. In
sharing their stories through the refugee system and then the media,
asylum seekers became symbolic and political instruments of
persuasion with significant influence. Importantly, asylum seekers
were also key mobilizing agents for the core campaign network,
whi emerged through individual contact and developed strategies
mediated by what asylum seekers were willing to do and not do.46
e campaign was framed to strategically engage Canadian values
and norms on gender-violence. Campaigners compared asylum
seekers’ needs to safety from gender-violence to those of ordinary
Canadian women already protected under Canadian law. e office
of the Immigration Minister first responded in 1992 that: “e
persecution of women is irrelevant to the refugee status
determination process.” A year later the Immigration Minister
inserted a moral element in response to public pressure, saying: “I
don’t think Canada should unilaterally try to impose its values [on
women’s rights] on the rest of the world. Canada cannot go it alone,
we just cannot.” Framing the rejection of su claimants as an effort
to avoid Western imperialism reflected the standard international
interpretation of human rights at that time in whi gender rights
remained culturally relative. e Canadian government also feared a
flood of refugees if the door was opened to gender-based asylum,
demonstrating awareness of the global extent of the problem.47
With this public inter-ange, the women’s human rights issue
exploded on the Canadian scene. Campaigners aaed the
Canadian government for suggesting that the right to safety from
violence whi Canadian women expect is culturally relevant; in
1051
other words, the hard-won rights of Canadian women were not
considered human rights by their own government. Major media
outlets pied up provocative campaign headlines daily, su as “Is
Sexual Equality a Universal Value?” and “Indivisible: Until Women’s
Rights Are Human Rights, We Have Far to Go.” Embarrassing and
pressuring the government to make the most of its progressive
national values on women’s rights, campaigners asked Canada to
show its commitment to women by becoming an international
leader on women refugees’ human rights.48
e government capitulated, giving in to three demands:
instatement of the world’s first refugee policy for “women fearing
gender-related persecution” founded on recognition of women’s
human rights; a moratorium on deportations of gender-based
claimants to enable review; and promotion of the new policy by the
Canadian government at the United Nations. In what can be
described as an upward and outward cascade, one year later the U.N.
adopted and promoted a similar policy, followed by a trail of
countries with their own versions, including the United States, South
Africa, Australia, Guatemala, Panama, Venezuela,49 17 European
countries and regional EU guidelines by 2004.50
In this domestic campaign, human rights’ moral legitimacy and
universality were enhanced through relationships between citizens
and non-citizens articulating common aims. A strategic convergence
of political and legal space also occurred: asylum seekers targeted
the state by drawing on international human rights foundations of
refugee law as well as national rights foundations of civic action and
gender equality. On one hand, this provided two sets of resources
and rights. On the other hand, it illuminated the conflict between
Canada’s domestic policies condemning gender-based violence and
foreign policy accepting gender-based violence. In an interesting
twist, Canadian women’s rights, at the time more progressive than
human rights, were condemned as culturally relative rather than
universally upheld by their own state. rough asylum seekers’
1052
human rights-based refugee claims, Canada enlarged women’s
national rights into the realm of universal human rights,
institutionalizing them as su nationally. All this occurred without
pressure by foreign states, intergovernmental bodies, or international
NGOs abroad. Later, aer Canada promoted its new refugee
Guidelines at the U.N., the issue entered the realm of transnational
and international actors and networks. Domestic actors, including
foreign-born asylum seekers and individuals affiliated with Canada’s
women’s movement, were the ‘norm entrepreneurs’ who articulated
a new need and pressured the state to become a ‘norm leader.’
Sexual orientation and gender identity
A second example of domestic identity-based actors impacting
human rights evolves around what the United Nations now refers to
as rights related to sexual orientation and gender identity. In diverse
national contexts domestic actors whose rights are violated on the
basis of sexual orientation or gender identity have pushed for
appropriate human rights adaptation and creation. Domestic LGBTI
campaigns are particularly instructive as they have become
extensive, diverse and highly visible, occurring in every region,
including some of the most marginalized and persecuted LGBTI
communities, and giving rise to comparative resear whi I will
argue evidences ground-up human rights creation.
e articulation of human rights as explicitly related to sexual
orientation or gender identity was absent from international
documents prior to 1993.51 Worse, the status quo interpreted
potentially relevant human rights in an exclusive manner.
International developments since then fall short of an international
treaty but are significant and authoritative: a 2006 Joint Statement on
Human Rights Violations Based on Sexual Orientation and Gender
Identity, a 2008 Declaration on Sexual Orientation, Gender Identity,
1053
and Human Rights, a December 2010 appeal by the U.N. Secretary
General for universal decriminalization of homosexuality, and a July
2011 Resolution (17/19) by the U.N. Human Rights Council on
“Human rights, sexual orientation and gender identity” calling on
the U.N. High Commissioner for Human Rights to document
discriminatory laws and practices, and explore how international
human rights law can be used to end them.
How did this happen? Mertus (2007) sees efforts to alter human
rights around LGBTI issues as two-fold: first by arguing that existing
human rights may be interpreted in a manner inclusive of sexual
orientation and gender identity, for example through human rights
to privacy, family and nondiscrimination, using traditional human
rights monitoring teniques to demonstrate their application (this
reflects an adaptation approa); second by tapping into “both
traditional monitoring teniques and human rights culture-building
efforts” in order to articulate altogether new international human
rights su as the “right to sexuality”52 or rights relating to “sexual
orientation or gender identity” (this reflects a creation approa). Yet
empirical studies focus on the influence of relevant international
norms upon domestic contexts,53 assuming downward and outward
norm diffusion, in line with recognition that NGOs oen adopt
human rights language and strategies to become more effective.54
Mindful that international human rights prior to the 1990s excluded
LGBTI rights, the question is how new LGBTI human rights norms
were (and are still being) created and specifically what roles
domestic actors play.
A first port of call among researers has been to look at LGBTI
and human rights organizations lobbying the U.N. and regional
organizations. Su organizations faced international resistance for
many years, articulated claims in human rights and anti-
discrimination terms, and became increasingly influential.55 As a
point of departure, one important caveat is that, although NGOs
working internationally are frequently described as international
1054
actors and transnational activists, this should not be understood
simplistically as referring to a formal organizational form (e.g.
‘international NGOs’). To the contrary, internationally acting NGOs
may be comprised of and embedded within multiple entities at
different levels, including not only international but also domestic
organizations that take on international issues and activities, as
captured in Ke and Sikkink’s depiction of Transnational Advocacy
Networks. At the individual level, distinctions between international
and national actors are even more artificial as different
organizational forms (international, regional, coalitions, networks)
are frequently comprised of individual members deeply rooted in
domestic social movements. is lends legitimacy and may annel
ideational and policy developments from national to international
levels where actors work, and not just the other way around.
A second caveat is that, while transnational activism can be
powerful and transnational advocacy networks are oen considered
norm entrepreneurs, they are not necessarily more progressive or
well-developed than domestic and individual activism at any one
point in time or place. Depending whi issue is studied and when,
resear on transnational activism produces different findings. For
example, women’s rights issues now involve a large number of
international organizations, coalitions and well established
transnational advocacy networks, as well as specific, formalized
human rights norms. But ‘transnational’ movements around some
other issues remain largely comprised of domestic political actors
who are mostly domestic oriented.56Some domestic movements may
even be seeking support from international “gatekeeper” NGOs that
ultimately fail to take up local issues as human rights.57
Evidence of the importance of domestic actors can be found in
LGBTI movements pushing for new human rights. International
activism is increasing in this area, but LGBTI movements remain
largely domestic in terms of targets, tactics and framing.58 Instead,
decades of concerted effort by domestic actors seeking to make
1055
human rights more responsive and inclusive to the needs of the
LGBTI community show that domestic contexts first pushed LGBTI
norms as ‘human rights.’ While there are similarities in LGBTI
movements across countries, ea has a specific trajectory,59
including varying use and grounding in human rights. One reason
may be that different contexts offer different opportunities for rights
assimilation. In the United States, for example, few LGBTI groups
rely on identity-based human rights framings to promote social
ange, instead using equality strategies consistent with
constitutional law.60 Adam, Duyvendak and Krouwel’s (2009)
volume exploring LGBTI movements in 16 countries across five
continents shows how national aracteristics imprint on LGBTI
movements that have “to ‘fit’ into the emancipation model used by
other groups in society and recognized by authorities as valid and
justified…” is creates different emphases, for example on
nondiscrimination, equal treatment, universalism, or ethnicity. In
some countries su movements find it strategic to “present
themselves in terms of a cultural minority, in others as part of a
broad movement for human rights and equality.”61 e diversity of
domestic contexts would seem to shape whether or how domestic
movements push their states to become new human rights norm
leaders or followers, or to take different routes altogether.
In Europe and South America we see some of the earliest
examples of human rights LGBTI claims preceding the articulation
of su rights internationally. Green (2007) shows that “[b]y using
the discourse of human and democratic rights that liberals and
revolutionaries employed in the 1970s and 1980s to push for an end
to military rule, the LGBT movements throughout Latin America
have broadened the framework for thinking about how democratic
societies should operate.”62 In countries like Brazil this began in the
1980s,63 well before international human rights bodies had
recognized LGBTI human rights. De la Dehesa goes further, stating
“the Brazilian government and NGOs in particular have been at the
1056
forefront of defining certain transnational practices in sexual
politics.”64 By 2008 gay activism had successfully decriminalized
homosexuality in all Spanish-speaking countries in Latin America
plus Brazil—historically hostile environments for gays. Encarnación
(2011) anowledges these movements benefied from domestic and
international trends including examples set in the United States and
Europe, and the rise of human rights internationally, but describes
their success not merely as transnational spillover. Rather, what
maered most was innovative and effective campaigning. As one
key strategy, use of human rights was indeed innovative given that
“[p]romoting gay rights as human rights in Latin America predated
the acceptance by the international community of the popular
argument that ‘gay rights are human rights’.” For example, in 1984
an influential NGO, the Comunidad Homosexual Argentina,
declared its inaugural moo as “e free exercise of sexuality is a
human right.” During the 1990s Latin American gay activists began
lobbying regional and international organizations about
discrimination against sexual minorities and in 2003 it was Brazil’s
delegation to the U.N. Commission on Human Rights whi
proposed a resolution called “Human Rights and Sexual Orientation.” 65
In the EU, the anti-discrimination clause of the 1997 Amsterdam
Treaty (whi made sexual orientation a protected category) is oen
cited as key to the development of an international LGBTI norm, but
Kollman (2009) observes it was influenced by earlier NGO lobbying
and input into reports at the European Parliament. ose NGOs
were rooted in domestic struggles whi set important precedents
for the region. For example, Ayoub and Paernoe (2014) describe
how individual activists advanced litigation in the 1980s and early
1990s whi first moved the existing anti-discrimination norm
toward an inclusive interpretation of sexual orientation, in order to
ban the criminalization of homosexuality in domestic contexts.66
Decriminalization occurred in nearly all West European states before
1057
the European Court of Human Rights (ECtHR) issued its influential
1993 decision (the Norris case) calling on Ireland to decriminalize
homosexuality on human rights grounds.67 In that decision the
ECtHR fell into step with norm-leader states pushed by their own
domestic constituencies. Indeed, “the earliest notions of the idea that
Europe has a special relationship to LGBT rights first appeared in
activists’ discourses, long before it was adopted and ampioned by
European and national institutions.” LGBTI activists therefore “…are
not simply extending a liberal European notion of rights to an
unrecognized group; they are helping define what the definition of
‘rights’ encompasses…”68
As has become evident, not only are internationally influential
LGBTI organizations embedded within domestic movements that
may articulate new human rights, but like other identity-based
movements, individuals within the identity community are
embedded at the core of the movement, participating rather than
merely being represented and generating those new human rights
framings. e importance of su membership cannot be
understated. LGBTI membership within international NGOs, NGO
coalitions, and domestic NGOs creates networks of domestic and
internationally acting individuals many of whom are linked through
identity-affiliation, working toward a common cause. NGOs and
social movements comprised largely of identity-affiliated members
can be strong representatives of local struggles in diverse contexts
and make powerful claims for new human rights. Resear reveals
the centrality of individual ‘coming out’ processes and narratives69
for LGBTI movements all over the world. Reminiscent of women
asylum seekers who made legal claims of gender persecution and
spoke with the media, LGBTI movements have activists’ personal
narratives at the core of litigation and political mobilization.
While perhaps less surprising within institutional seings
supportive of equality-based litigation, as in Europe and North
America, individual narratives are equally if not more important in
1058
less enabling contexts su as the Middle East and North Africa
where the legitimacy of human rights more broadly may be in
question. Chase’s (2012) ri discussion of how human rights
legitimacy flows out of everyday local struggles suggests that
individual narratives and domestic NGOs are central to the
authenticity of LGBTI movements’ human rights claims in the Arab
region. e reality of local struggles in su contexts suggests the
justification for universality in human rights is anti-foundational,
open to diverse sources and local realities. e ‘political-moral panic’
in whi human rights skeptics and anti-gay voices aempt to
delegitimize Arab gay males’ claims to human rights by reference to
Western origins is instead a political response to the reality of heated
social movements on the ground. Rather than delegitimizing gay
rights, therefore, Arab gay claims to human rights shine legitimacy
on what is a newly emerging global norm:
…peoples from within [the Arab world’s] diverse communities have
always been a part of transnational currents affecting anging
social constructs. To ignore rights claims that come from within that
dynamic sphere is to reinforce monolithic notions of identity and
unanging community. Just as importantly…it is to narrow the
sources that define what human rights can become.70
is discussion of resear on LGBTI movements supports a view of
local and national identity-based movements engaging in processes
that adapt existing human rights to their needs and constitute new
human rights that are inclusive. is is important because, as Chase
(2012) explains,
For the human rights regime to maintain its relevance, it is
dependent on continuously evolving in response to normative
currents. Rights rely for their relevance on an ability to be
(re)constituted by those making claims in the emancipatory
1059
language of rights that are evolving and multisourced rather than
singular and static.71
e horizontal and upward ‘cascade’ of LGBTI movements with
human rights underpinnings that simultaneously allenge the
human rights status quo, lends legitimacy to human rights and the
importance of diverse domestic actors.
1060
Conclusion
One of the most visionary aspects of international human rights is
its simultaneous empowerment of individuals and substantive
adaptability to ground-up pressures by individuals and movements
previously neglected under human rights. Local actors can play
critical roles not only shaping the interpretation and implementation
of existing human rights but also articulating and creating entirely
new human rights. A capacity for continuing development supports
human rights’ legitimacy and implementation in several ways. First,
it enables allenges to the human rights status quo thus preventing
stagnation around potentially inbuilt biases. Second, it presents
opportunities to continue to develop our notion of universality in
human rights, as best as we can understand su universality and
indeed our own complex human identities and needs at any one
particular historical moment, by welcoming engagement by diverse
actors who want to shape the substance of human rights. ird, it
magnifies the international influence of human rights, whi occurs
not only through downward international to national
implementation but through the utility local actors find in seizing
imperfect human rights norms and helping to transform them in
ways that maer internationally. Fourth, it ultimately reifies core
principles of human rights, su as human equality,
nondiscrimination and dignity, with whi new ‘human rights’ must
remain consistent. When these events occur around neglected issue-
areas, human rights may be expanded, adapted, and created anew.
Human rights resear has uncovered complex processes through
whi internationally institutionalized human rights are dispersed
across states. International networks facilitate local-international-
supranational level dialogue, information sharing, and participation,
1061
establishing human rights’ influence in domestic contexts through
complex human rights socialization processes. Su processes can
develop cultural legitimacy for human rights by triggering
significant adaptations to local and national contexts as rights are
adjusted to fit diverse realities. Understanding how diffusion,
socialization, and adaptation work opens a panoramic view into the
world of nongovernmental actors, including globally diverse
domestic actors.
e local-supranational human rights infrastructure may also
suggest how domestic actors can take part in creating altogether new
human rights. Yet resear on norm creation most oen focuses on
end-stage formalization by international governmental and
international nongovernmental actors. We need to beer understand
the role of domestic actors in political and dialectical processes at
earlier stages when particular ‘human rights’ are first articulated,
constructed, and constituted as su—in a universal moral sense fit
for international law. One route revealed through case studies is for
domestic actors to pressure the state to set an international
precedent and become a norm leader for ‘human rights’ not yet
accepted internationally. Adding detail to theories of norm
emergence, we see that the road to becoming a state norm leader is
paved with ground-level activism and diverse local actors. Political
processes at the national level include domestic entrepreneurs of
international norms. is captures a potential global standard’s early
articulation as a viable and legitimate human right in the moral
sense and its early translation into institutional forms (law, policy,
programs, etc.) demonstrative of human rights viability. Successful
human rights outcomes at this earlier stage may be described as
international norm precedents or triggers.72 is denotes the seing
of new minimum levels of human rights protections around specific
issues and, as a precedent, invites international dialogue and debate.
Of course not all domestic struggles succeed in producing norm
leaders, and some struggles may continue for many years.
1062
Contention, in any case, brings aention, and domestic struggles in
multiple contexts over the same (potential) human rights at the same
time, whether or not locally successful, can build transnational
awareness, legitimacy, and activism whi may lend legitimacy to
norm leaders elsewhere. Su human rights experimentations at
national levels must be taken seriously and studied more closely.
Where human rights precedents are aieved at the national level, if
international consensus follows and becomes codified in
international law (a kind of upward cascade), a new international
standard is born. e eventual geographical expansion of the
standard across other national contexts internationalizes the norm in
the sense of implementation. National precedents of international
import may become trigger cases for consensus and standard seing.
Identity-based actors on the ground may persuasively identify and
articulate these new rights, make human rights claims, and mobilize
for substantive human rights ange in response to a la of
equivalent rights at national level (as ‘non-citizens,’ su as asylum
seekers, or as discriminated ‘second class citizens’ su as LGBTI,
indigenous, or disabled people). In some cases, su actors may do
this domestically by turning progressive yet out of rea national
rights (provided to other citizens but not to them) into accessible
human rights at national level. In other cases, human rights
principles offer a basis for constructing new human rights in
response to bigger gaps at national level. ere are many more su
cases to be examined and compared as we uncover the roles of local
actors in complex transformations of human rights.
Regardless of whether or not human rights have a pre-ordained
moral founding or basis, human rights as internationally understood
are and will continue to be substantively constituted, and in a
positive expansionary manner as long as core human rights
principles are respected. Su evolution and growth in human rights
is, and should be, powerfully led not merely by international actors
but by diverse local actors from the ground-up. e inherent ability
1063
of human rights to adapt and grow in response to the claims and
new rights-articulations of various groups may help appease critics,
as it shows that the human rights status quo itself can be allenged
and anged rather than becoming stagnant in its own notion of
‘universality.’ is increases the relevance of human rights today and
in years to come.
1064
Notes
1 On ‘universalism’ see Ja Donnelly, Universal Human Rights in Theory and Practice
2nd edition, (Ithaca, NY: Cornell University Press, 2013), discussed later in this apter.
Cultural relativism asserts that cultural values must only be judged from within;
Adamantia Pollis and Peter Swab,“Human rights: a Western construct with limited
applicability,” Human Rights: Cultural and Ideological Perspectives, Pollis and Swab
eds, (NY: Praeger Press 1979). For an excellent rebual, see R.J. Vincent, Human Rights
and International Relations, (Cambridge: Cambridge University Press, 1986).
2 Abdullahi An-Naim, ed., Human Rights in Cross-Cultural Perspectives: A Quest for
Consensus, (Philadelphia: University of Pennsylvania Press, 1992).
3 M. Ke and K. Sikkink, Activists Beyond Borders: Advocacy Networks in International
Politics, (Ithaca, N.Y.: Cornell University Press, 1998); omas Risse, Stephen C. Ropp,
and Kathryn Sikkink, The Persistent Power of Human Rights: International Norms and
Domestic Change, (New York: Cambridge University Press, 2013).
4 Lisa S. Alfredson, Creating Human Rights: How Noncitizens Made Sex Persecution
Matter to the World, (Philadelphia: University of Pennsylvania Press, 2008).
5 Xinyuan Dai, “e ‘compliance gap’ and the efficacy of international human rights
institutions,” in Risse, Ropp and Sikkink, The Persistent Power of Human Rights; Beth
Simmons, Mobilizing for Human Rights: International Law in Domestic Politics, (New
York: Cambridge University Press, 2009).
6 Donnelly, Universal Human Rights. David P. Forsythe, Human Rights and World Politics
2nd edition (Ithaca, N.Y.: Cornell University Press, 1989, 2012).
7 Vincent, Human Rights and International Relations.
8 Niolas J. Wheeler, Saving Strangers, (Oxford: Oxford University Press, 2000);
Samantha Power, “A Problem from Hell”: America and the Age of Genocide (New York:
Basic Books, 2002).
1065
9 W. Korey, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine,
(New York: St. Martin’s Press, 1998); C.E. Wel, NGOs and Human Rights: Promise and
Performance, (Philadelphia: University of Pennsylvania Press, 2001).
10 Ke and Sikkink, Activists Beyond Borders.
11 N.G. Onuf, and V. Peterson, “Human rights from an international regime perspective,”
Journal of International Affairs 37 (1984): 329–33; Ja Donnelly, “International human
rights: a regime analysis,” International Organization 40 (Summer 1986): 599–642.
12 Alison Brysk ed., Globalization and Human Rights, (Berkeley: University of California
Press, 2002).
13 K. Sikkink, “Human rights, principled issue networks, and sovereignty in Latin
America,” International Organization 47 no. 3 (1993a): 411–41; Ke and Sikkink,
Activists Beyond Borders; Risse, Ropp and Sikkink, The Power of Human Rights:
International Norms and Domestic Change, (New York: Cambridge University Press,
1999).
14 Risse, Ropp, and Sikkink, Persistent Power of Human Rights, 15–16.
15 Ke and Sikkink, Activists Beyond Borders.
16 Risse, Ropp, and Sikkink, Power of Human Rights; Risse, Ropp, and Sikkink, Persistent
Power of Human Rights.
17 P.J. Katzenstein, The Culture of National Security: Norms and Identity in World Politics,
(New York: Columbia University Press, 1996); A. Klotz, Norms in International
Relations: The Struggle Against Apartheid, (Ithaca, N.Y.: Cornell University Press, 1995,
1991); A. S. Yee, “e causal effects of ideas on policies,” International Organization 50,
no. 1 (1996): 69–108.
18 C.R. Sunstein, Free Markets and Social Justice, (Oxford: Oxford University Press, 1997).
19 Donnelly, Universal Human Rights.
20 An-Naim, Human Rights in Cross-Cultural Perspectives, 79–80.
21 Donnelly, Universal Human Rights.
22 Korey, NGOs and the Universal Declaration of Human Rights; Wel, NGOs and Human
Rights; Ahmed and Poer, NGOs in International Politics, (Kumarian Press: Bloomfield
1066
CT, 2006); Peter Willes, Nongovernmental Organizations in World Politics: The
Construction of Global Governance, (New York: Routledge, 2010); Alison Brysk, Human
Rights and Private Wrongs: Constructing Global Civil Society, (New York: Routledge,
2005).
23 Kerstin Martens, “Bypassing obstacles to access: how NGOs are taken piggy-ba to the
U.N.,” Human Rights Review 5, no. 3 (April–June 2010): 80–91.
24 Jody Williams, Stephan D. Goose, and Mary Wareham, Banning Landmines: Citizen
Diplomacy and Human Security, (Lanham, MD: Rowman and Lilefield, 2008); R. Price,
“Reversing the gunsights: transnational civil society targets landmines,” International
Organization 52, no. 3 (1998): 613–44; Peter Willes, The Conscience of the World: The
Influence of Nongovernmental Organizations in the U.N. System (Washington, D.C.:
Brookings Institution, 1996); omas Weis and Leon Gordenker, NGOs, the U.N. and
Global Governance, (Providence, RI: Brown University Press, 1996).
25 Ke and Sikkink, Activists Beyond Borders; Risse, Ropp, and Sikkink, Power of Human
Rights; Brysk, Human Rights and Private Wrongs.
26 Ke and Sikkink, Activists Beyond Borders; M. Finnemore and K. Sikkink, “International
norm dynamics and political ange,” International Organization 52 (1998): 887–917.
27 Finnemore and Sikkink, “International norm dynamics,” 916.
28 Finnemore and Sikkink,“International norm dynamics,” 896–7.
29 Ole, Elgström, “Norm negotiations: the construction of new norms regarding gender and
development in EU foreign aid policy,” Journal of European Public Policy 7, no. 3
(September 2000): 457–76.
30 Alfredson, Creating Human Rights.
31 See Alfredson, Creating Human Rights; this apter elaborates the explanatory
framework.
32 Donnelly, Universal Human Rights in Theory and Practice, 97–9.
33 Neil Stammers, “Social movements and the social construction of human rights,” Human
Rights Quarterly 21, no. 4 (1999): 981.
1067
34 Stammers, “Social movements,” 987; Donnelly, “International human rights: a regime
analysis,” 599–642; Claude Weston, Human Rights in the World Community: Issues and
Action, (Philadelphia: University of Pennsylvania Press, 1992).
35 Stammers, “Social movements,” 989; Alberto Melucci, Nomads of the Present: Social
Movements and Individual Needs in Contemporary Society, (Philadelphia: Temple
University Press, 1989).
36 Stammers, “Social movements.”
37 Baladrishnan Rajagopal, International Law from Below: Development, Social Movements
and Third World Resistance, (NY: Cambridge University Press, 2003).
38 Alfredson, Creating Human Rights.
39 Anthony Chase, “Legitimizing human rights: beyond mythical foundations and into
everyday resonances,” Journal of Human Rights 11, no. 4 (2012): 505–25.
40 Rajagopal, International Law from Below, xiii.
41 Alfredson, Creating Human Rights.
42 James C. Hathaway, The Law of Refugee Status, (Toronto: Buerworths, 1991).
43 L. Bonnerjea, Shaming the World: The Needs of Women Refugees, (London: CHANGE,
1985); Lori L. Heise, “International dimensions of violence against women,” Response 12,
no. 1 (1989): 3–11; L. Pope and F. Stairs, “No place like home: assaulted migrant
women’s claims to refugee status and landings on humanitarian and compassionate
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gender difference: feminist critiques of refugee discourse,” International Journal of
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persecution is a human rights violation against women,” Hastings Women’s Law
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44 Hilary Charlesworth, Christine Chinkin, Shelley Wright, “Feminist approaes to
international law,” American Journal of International Law 85 (1991): 613, 624; Charloe
Bun, “Organizing for women’s human rights globally,” in Ours by Right ed. Joanna
Kerr, (Oawa: North-South Institute, 1993); Rebecca J. Cook, ed., Human Rights of
Women: National and International Perspectives, (Philadelphia: University of
Pennsylvania Press, 1994); Julie Peters and Andrea Wolper, eds, Women’s Rights,
1068
Human Rights, (New York: Routledge, 1995); M.A. Fineman and R. Mykitiuk, Public
Nature of Private Violence, (New York: Routledge, 1994).
45 Alfredson, Creating Human Rights.
46 Alfredson, Creating Human Rights, 168–74.
47 Alfredson, Creating Human Rights, 1, 202–3.
48 Alfredson, Creating Human Rights, 196–7.
49 Alfredson, Creating Human Rights, 229–33.
50 Heaven Crawley and Trine Lester, Comparative Analysis of Gender-Related Persecution
in National Asylum Legislation and Practice in Europe, Geneva: UNHCR, 2004.
51 Mertus, “e rejection of human rights framings: the case of LGBT advocacy in the U.S.”
Human Rights Quarterly vol. 29 no. 4 (November 2007): 1042.
52 Mertus, “Rejection of human rights framings,” 1038–9.
53 Phillip M. Ayoub, “Cooperative transnationalism in contemporary Europe:
Europeanization and political opportunities for lgbt mobilization in the European
Union,” European Political Science Review 5, no. 2 (2013): 279-310; Kelly Kollman,
“European institutions, transnational networks and national same-sex unions policy:
when so law hits harder,” Contemporary Politics 15, no. 1 (2009): 37–53; Kelly Kollman,
The Same-Sex Unions Revolution in Western Democracies: International Norms and
Domestic Policy Change, (Manester: Manester University Press, 2013); Phillip Ayoub
and David Paternoe, eds, LGBT Activism and the Making of Europe: A Rainbow
Europe? (Basingstoke, UK: Palgrave Macmillan, 2014); Ryan R. oreson, Transnational
LGBT Activism: Working for Sexual Rights Worldwide, (Minneapolis: University of
Minnesota Press, 2014).
54 Kerstin Martens, “Professionalized representation of human rights NGOs to the United
Nations,” 10 International Journal of Human Rights (2006): 19.
55 Mertus, “Rejection of human rights framings;” Kollman, “National same-sex unions
policy;” Ayoub and Paternoe, eds, LGBT Activism and the Making of Europe.
56 Doug Imig, “Contestation in the streets: European protest and the emerging euro-polity”
in European Integration and Political Conflict, ed. Gary Marks and Marco R.
1069
Steenbergen (Cambridge: Cambridge University Press, 2004), 217–20.
57 Clifford Bob, ed., The International Struggle For New Human Rights, (Philadelphia:
University of Pennsylvania Press, 2008).
58 Ayoub and Paternoe, eds, LGBT Activism and the Making of Europe.
Barry Adam, Jan Duyvendak, and André Krouwel, eds, The Global Emergence of Gay
and Lesbian Politics: National Imprints of a Worldwide Movement, (Philadelphia:
Temple University, 2009).
59 Dennis Altman, Coming Out in the Seventies, (Sydney: Wild and Woolley, 1997).
60 Mertus, “Rejection of human rights framings” 1037.
61 Adam, Duyvendak and Krouwel, Global Emergence of Gay and Lesbian Politics, 349.
62 James N. Green, “(Homo)sexuality, human rights, and revolution in Latin America,” in
Human Rights and Revolutions, eds. Jeffrey N. Wasserstrom, Lynn Hunt, Marilyn B.
Young and Gregory Grandin. (Rowman and Lilefield, 2007), 150.
63 James N. Green, “(Homo)sexuality, human rights” 147.
64 Rafael De la Dehesa, Queering the Public Sphere in Mexico and Brazil: Sexual Rights
Movements in Emerging Democracies, (Durham: Duke University Press, 2010), 6.
65 O.G. Encarnación, “Latin America’s gay rights revolution” Journal of Democracy 22, no.
2 (2011): 104–18. (Johns Hopkins University Press) 2011, 105–107.
66 Ayoub and Paternoe, eds, LGBT Activism and the Making of Europe.
67 Kollman, “National Same-sex Unions Policy.”
68 Ayoub and Paternoe, eds, LGBT Activism and the Making of Europe, 7.
69 Ski Hunter, Coming Out and Disclosures: LGBT persons Across the Life Span, (New York:
e Haworth Press, 2007).
70 Chase, “Legitimizing human rights,” 521.
71 Chase, “Legitimizing human rights,” 520.
72 Alfredson, Creating Human Rights, 21.
1070
Selected Bibliography
Adam, Barry D, Duyvendak, Jan Willemand Krouwel, André, eds.
The Global Emergence of Gay and Lesbian Politics: National
Imprints of a Worldwide Movement. Philadelphia, PA: Temple
University, 2009.
Alfredson, Lisa S. Creating Human Rights: How Noncitizens Made
Sex Persecution Matter to the World. Philadelphia, PA: University
of Pennsylvania Press, 2008.
Ayoub, Phillip and David Paternoe eds. LGBT Activism and the
Making of Europe: A Rainbow Europe? Basingstoke: Palgrave
Macmillan, 2014.
de la Dehesa, Rafael. Queering the Public Sphere in Mexico and
Brazil: Sexual Rights Movements in Emerging Democracies.
Durham, NC: Duke University Press, 2010.
Donnelly, Ja. Universal Human Rights in Theory and Practice.
Ithaca, NY: Cornell University Press, 2013.
Encarnación, Omar G. “Latin America’s gay rights revolution” in
Journal of Democracy vol. 22, no. 2 (2011): 104–18.
Finnemore, Martha and Sikkink, Kathryn. “International norm
dynamics and political ange” in International Organization
vol. 52 (1998): 887–917.
Green, James N. “(Homo)sexuality, human rights, and revolution in
Latin America” in Wasserstrom, Hunt, Young, and Grandin eds.
Human Rights and Revolutions. Lanham, MD: Rowman and
Lilefield, 2007: 139–54.
Kollman, Kelly. “European institutions, transnational networks and
national same-sex unions policy: when so law hits harder”
Contemporary Politics vol. 15 (2009): 37–53.
1071
Ke, Margaret E. and Sinnik, Kathryn. Activists Beyond Borders:
Advocacy Networks in International Politics. Ithaca, N.Y.: Cornell
University Press, 1998.
Risse, omas, Ropp, Stephen C. and Sikkink, Kathryn eds. The
Persistent Power of Human Rights: International Norms and
Domestic Change. New York: Cambridge University Press, 2013.
Warren, Priscilla F. “Women are human: gender-based persecution is
a human rights violation against women” in Hastings Women’s
Law Journal vol. 5 (1994): 2.
1072
Section IX
Conclusions from a grassroots
viewpoint: reflections on dynamics
around struggles for human rights in
the Middle East and North Africa
1073
32
Reflections on ree Decades of
Human Rights Work in the Arab
Region
Fateh Azzam
1074
Introduction
It was a time of moderate optimism when the human rights
movement began in the Arab region at the end of the 1970s. e
political environment was as tense as it had ever been during the
Cold War, the defeat of Arab armies by Israel in 1967 still smarting
in people’s minds, and the tail end of successful and unsuccessful
coups d`état and ‘reform coups’ that engendered a steady shi
towards more repression and tightened control—in the new republics
and old monaries alike. But there was a prevailing sense of hope
that it was still possible to effect ange and to mobilize people
around common causes. e Palestine Liberation Organization was
liing the spirits of Palestinians and Arabs more generally,
demonstrating that it was possible to fight ba and reclaim rights—
never mind the means. Parties of various shades of nationalism and
Marxism were still organized but failing to fulfill their promises with
weak political impact. e oil monaries had just made their first
(and only) aempt to counter Western policies through the oil
embargo of the early 1970s, whi nevertheless proved entirely
uneventful.
It was within this environment that the first organizations were
established in Tunisia, Palestine and Morocco between 1978 and
1980, followed soon aer by the Egyptians and the regional Arab
Human Rights Organization. Two categories of people took those
first steps: Marxists and nationalists, on the one hand, who were
disenanted with political mobilization and their parties’ tepid
aievements (or the entire la thereof) and sought new avenues for
action. On the other hand, there were the lawyers and intellectuals
who believed that a focus on the law would liberate the struggle for
freedoms from its political manipulations and mainations. e
1075
idea that the aspirations of the Universal Declaration of Human
Rights can become accountable legal obligations through the two
international covenants that had just come into force in 1977 offered
an exciting new avenue to be embraced. A new self-identification,
and profession, human rights activist, was born.
Since then, the Arab human rights movement has grown along
with the growth of the international human rights system,
meanisms, and its international organizations. ere is currently
no accurate count, but estimates can run from 125 to 160
organizations across the region. Ea country now has several
organizations working on one or more human right, reaing around
15 in Palestine and more than 20 in Egypt.1 When repression
intensified in some countries, activists established their human rights
organizations in exile, as the Iraqis, Libyans and Bahrainis did
throughout the 1980s and 1990s. ese organizations have produced
countless reports on violations and state practices, organized
hundreds of human rights education programs at sools,
universities and community centers, and engaged actively with the
U.N. human rights meanisms, oen in collaboration with
international human rights organizations, bringing their reports of
violations and demands for reform.
Arab states were and continue to be resistant to the idea that their
behavior towards their citizens should be judged against a set of
internationally agreed standards, perceiving it as an intrusion on
sovereignty. ese states, along with many political actors and
intellectuals, initially rejected the human rights paradigm as a form
of Western neo-colonialism. ey argued that human rights were a
re-imposition of the West’s oversight within the sovereign
jurisdictions of states that, in the main, had only recently been
formed in the wake of decolonization. Even more powerful was the
cultural relativism argument that posed human rights as founded in
distinctly Western ‘liberal-democratic’ values that could not resonate
in parts of the world with different cultural values. In the Arab
1076
world, Islam—the religion of the vast majority in the region and the
state religion in all states except Lebanon—was seen as the
repository of su cultural values, and hence the only possible
reference for rights, whi they deemed to be God-given and not
man-made.
In 1990 Arab and Muslim states affirmed this cultural relativism
by adopting the Cairo Declaration of Human Rights in Islam, whi
aimed to be the definitive view of human rights as seen by the
region’s rulers. is did not work. Arab and international activists
sharply criticized the Cairo Declaration, and the pressure on states
did not abate. Interestingly, states actually did very lile with the
Declaration. ey neither developed it into a legal instrument nor
used it rhetorically to any significant effect other than the occasional
reference. A few years later, in 1994, the League of Arab States
adopted the first Arab human rights arter, but none of them
ratified it and it never came into force, thus becoming another dead
leer. Clearly, however, they were beginning to feel the pressure of
having to deal with human rights.
roughout the following decade, we can perceive a gradual shi
towards a different aitude. States began to move towards the idea
that international human rights standards are in fact consistent with
Islam, albeit with a few (not insignificant) exceptions: women’s
rights, minority rights, nationality rights, capital punishment, the
right to ange one’s religion and certainly the issue of sexual
orientation. However, while remaining insistent that Islamic Shari`a
must overar all and inform all behavior, states began to ratify
human rights treaties and to engage with international human rights
meanisms. e Arab Charter was dusted off, re-formulated and
adopted again in 2004. Coming into force in 2008, the Charter has
gained the ratification of 14 out of the 22 members of the Arab
League to date. Arab states became more active participants in the
debates and discussions of the Commission on Human Rights and
later the Human Rights Council. Developments were also seen at the
1077
national level as states began to establish human rights institutions
(there are now 15 in the region), higher councils for women and
others for ildren, and other structures and meanisms. National
and regional strategies and action plans have been developed for
human rights education, to combat human traffiing and ild
labor, and for the implementation of U.N. Security Council
Resolution 1325 on women, peace and security. More recently, in
2014, the Statutes for an Arab Court for Human Rights were
adopted. However, the Charter, Court, and most of the national
human rights institutions, fall short of international standards.
Whether this means that Arab states have finally accepted, with
the above caveats, that human rights should constitute an element—
indeed a goal—of governance, or that they are only pretending to
have done so, remains a maer for debate. It nevertheless does
signify their anowledgement that human rights are here to stay
and that they cannot claim to be exempt from scrutiny of their
practices, not if they are going to be active members of the
international community.2
1078
Human rights in a sorry state
Yet, when we examine the results of this aitudinal development,
nothing mu seems to have anged in terms of citizens’ lives. Civil
and political freedoms have not improved to any significant effect,
either at the level of laws or in terms of states’ repressive practices.
Standards of living have deteriorated for the vast majority as a result
of ill-conceived international and Arab governments’ policies.
Iraq continues to be in aos aer the ignominious American
invasion of 2003 and subsequent thoughtless occupation that
fundamentally destroyed societal cohesion and allowed a descent
into a vicious sectarianism, whi continues to this day. Palestine
has seen a steady deterioration since the self-deceiving heady days
of handshakes on the White House lawn in 1993 and the
fundamentally flawed Oslo Accords. e pretense that a historic
rapproement based on mutual recognition and the land-for-peace
formula has fallen off like a fig leaf, and the promises of peace and
‘peace dividends’ turned out to be hollow. Instead, Palestinians are
regularly killed under a merciless occupation that continues and
deepens every day unfeered by regional and international actions
or sanctions. Like a Greek tragedy, we have seen the slow reveal of
just how insidiously yet evidently tribal, anti-democratic and racist
Zionist ideology is. We are still waiting for the tragedy’s catharsis,
yet every time we think it cannot get worse, it does.
e myopic global focus on free markets and on the percentage of
economic ‘growth’ rather than human development has produced a
steadily declining quality of life for the majority of people living in
the Arab region, as recently admied by the World Bank.3 is has
resulted, for example, in unemployment and poverty rates more than
twice global averages, especially for young people. As an indicator of
1079
how distant global and national economic policies have been from
meeting the needs of people, Tunisia won international recognition
for its development models just a few months before the popular
revolt there,4 and Egypt was named ‘top reformer’ in the World
Bank’s Doing Business Survey in 2008.5 Su ‘reform’ clearly made
no dent in the right to housing in Egypt where more than 11 percent
of the population (now approaing 85 million) still live in
ashwaiyat—unplanned and unrecognized squaer zones with no
governmental services. Education fared beer with some general
progress across the board despite the abject failure of some
countries. Morocco and Egypt, most notably, have failed to
significantly reduce illiteracy from the average rates of 28–40
percent, (with women at the higher end of statistics), aer nearly 70
years of independence from colonialism.
In the oil-ri countries of the Gulf, an unspoken trade-off has
been in place for decades, where the la of citizens’ political and
civil rights is exanged for economic services (not rights). In those
countries, the system survives primarily due to oil wealth and the
employment of eap foreign laborers who must accept their
working terms and conditions with no claims for rights. Volumes
have been wrien on women’s rights in the region that need not be
repeated here, as well as the rights of non-Arab minorities like the
Kurds in Syria and the Amazigh in North Africa, not to mention
religious minorities in nearly every country of this rily diverse
region of the world.
Economic conditions led—along with political repression—to the
revolts that swept the region in 2011. e initial excitement about
the so-called ‘Arab Spring,’ has given way to exasperation at the
outcome: worsening conditions for all rights, except in Tunisia
where a tenuous democratization may be taking place. Under Sisi,
Egypt has regressed to repression and iron-fisted state authority
worse than that under the previous Mubarak regime. Syria, Libya
and Yemen have deteriorated to various levels of civil war,
1080
destroying infrastructure and producing record numbers of dead and
maimed, as well as millions of refugees and internally displaced
persons. e Gulf monaries, led by Saudi Arabia, first tried to buy
their citizens’ acquiescence with money and government jobs, then
added the strategy of blaming an ‘Other,’ most conveniently,
terrorism and Shi`ism, thus contributing to a dangerous regional
descent into sectarianism. Aided by self-appointed political pundits
in the West, they perceive themselves in competition with Iran on
the one hand, and on the other, with the multiplying versions and
interpretations of Jihadist Islam—from the Muslim Brotherhood to
the Islamic State in the Levant and every shade in between. Never
mind that the Saudis themselves produced those jihadists with
massive funding for their own rigid interpretation of Islamic
education for decades.
Across the region today a severe cradown is taking place on
freedoms of expression, association and assembly, along with almost
any form of organizing, mostly under the guise of combating terror.
Secular space is now almost non-existent for those we used to call
‘Arab Democrats’—those who for years have advocated for the rule
of law, equal access to resources, and fair economic policies as well
as political freedoms. e very fabric of states is beginning to fray in
the tug-of-war between repressive regimes and fear of the brutal
Jihadists like the Islamic State & Co.
is sorry state of affairs boggles the mind. It begs for
understanding and for new ideas and avenues for action that can go
beyond simplistic analysis or prescriptive solutions. Mu has been
wrien on advancing political, economic, and other options—yet the
international political community continues to focus primarily on
military options, whi have only served to exacerbate the problems.
e question is how to understand human rights dynamics in the
midst of this aos and whether or not the rights paradigm
continues to have potential to contribute to solutions. No one has
any definitive answers. Any future solutions, however, must flow
1081
from conceptualizing these problems in an integrated manner: they
are moral and legal, political and economic, local and global.
1082
e moral, legal, and political
Human rights occupy a somewhat unique place in both the national
and international spheres, being moral, legal, and political at the
same time. First, they are motivated by the moral requirement of
protecting human dignity, the elements of whi are defined by the
normative standards elucidated in human rights documents.
Secondly, those normative standards are set by states in
international treaties and conventions they can voluntarily sign onto
and whi, once ratified, become legally binding as a maer of
treaty obligation. Yet they have no significant teeth for enforcement,
without whi the decision to fulfill those obligations becomes
thoroughly political at both the national and international levels.
Discussions of human rights within and about the Arab region
vacillate wildly between the moral, legal, and political. is
vacillation makes it difficult to come to a thorough understanding of
how to advance human rights discourse, promotion, and practice in
the region: What to do about enabling people to enjoy fundamental
dignity inherent to being human? Do we educate to raise awareness,
reform the law and/or structures of governance, or mobilize
politically?
Criticism of the state of human rights anywhere is based on
assessment of the levels of violations of standards as set by domestic
law and international legally binding instruments. However, in
analyzing the causes for these violations, and in proposing ways to
ameliorate them, the moral, legal and political fight with one
another for primacy. Morality, culture, or politics are blamed for
legal failures since the law is below standards and has no meanism
to be enforced. Legal gaps and cultural proclivities are blamed for
1083
political failures in governance, and certainly politics is blamed for
nearly all failures.
ose who have been active in promoting and defending human
rights in the Arab region—be they of the region or not—have indeed
been pursuing all three approaes for decades. For many, the
problems are perceived as awareness problems; if only people knew
about and understood human rights, they can claim and protect
them. Yet we have had an abundance of educational and awareness-
raising programs at all levels from the early beginnings of the
movement. e Arab Institute for Human Rights in Tunis has been
running su programs for the past 25 years, reaing thousands of
communities in all Arab states, as has the Cairo Institute for Human
Rights Studies. Nearly every national human rights organization has
also run awareness-raising programs for ildren, youth, women,
teaers, lawyers, judges, governmental ministries, and other sectors.
University level human rights courses have markedly increased and
Masters’ level degrees in human rights—or human rights and
democracy—have been established in at least six universities in
almost as many countries (interestingly, more than half of them are
actually taught in English). International donors, including
governmental, quasi-governmental, and independent donors have
invested significant amounts of grant money in educational and
awareness raising programs, seen as ‘politically safe’ in general
terms.
Human rights educational programs have covered the gamut of
issues, from the philosophical to the legal to the political to the
religious. Some have focused on international obligations,
sidestepping the contextual political and cultural milieu at national
and local levels. Others have gone the opposite way, invoking
indigenous culture and endlessly discussing human rights in Islam,
or human rights and Islam or Islamic law as a precursor of
International Humanitarian Law (as the ICRC has done).
1084
e impact of this plethora of human rights education and
promotion activities needs to be thoroughly studied and analyzed.
Some can point to success stories on a local or national level and
others assert in generalized terms that there has been impact in
terms of the general populations’ awareness and consciousness of
their rights and entitlements as citizens. It has been said, for
example, that the protests of 2011 were essentially making human
rights claims: Bread, freedom, dignity and social justice. ere is
some truth to these assertions, but they remain mainly anecdotal
assessments that need to be more scientifically investigated.
e legal and specialized approa has also been pursued. Mu of
the work of Arab human rights organizations, as elsewhere, has
focused on legal defense of individuals and sectors of society, and for
procedural safeguards and legal protection. ey have also
advocated for legal reform and against dra laws seen as harmful to
rights and liberties, su as new laws on freedoms of association,
spee, assembly, and others. Many projects have been undertaken,
from conferences and seminars to legal education, training and legal
clinics, as well as reform proposals on the laws of association and
press laws, independence of the judiciary, the full gamut of
administration of justice issues and many more. While legal defense
in particular has been crucially important for tens of thousands of
individual cases, these efforts have not succeeded in anging the
nature of legal regimes or of the legal structures that continue to
violate rights.
International legal obligations mean very lile if they are not
incorporated into national law and adjudicated in domestic courts,
and a serious problem exists in the region in that most states have
not done so. In fact, quite the opposite has taken place. In Arab
constitutions, for example, rights and liberties are fairly well
provided for, for the most part. However, all are to be ‘regulated by
law’ and when the lawmakers promulgate the law, they negate half
of those rights and liberties. Whatever substantive protection
1085
remains is essentially finished off by the executive and implementing
regulations of the law, so in fact lile is le of protected rights.6
Consequently, many of the laws in Arab states, both those on the
books and new ones being proposed on a regular basis, fall far short
of international standards. is has created a contradiction that
judges, lawyers and activists have to contend with at every turn.
When activists invoke international human rights commitments
before the courts, judges oen respond with the requirements of
domestic law, entirely sidestepping constitutional provisions that
international obligations should supersede domestic law. While they
accept the argument on principle, they nevertheless require a specific
legal provision that clearly defines the ‘crimes and punishments’ for
infractions, whi for the most part they don’t have in the texts of
domestic law.
Human rights lawyers and activists in the region have faced local
and global criticism of their approa as elitist, overly
professionalized and disconnected from the community (i.e. that
‘lawyers have hijaed human rights’). is unwarranted criticism
forgets that the law is fundamental to the human rights paradigm in
that it provides legally protected ‘rights’ as opposed to ‘values,’
whi remain in the moral realm. e overaring principle and
requirement of the human rights-based approa is precisely the
formulation of values as legal entitlements, whi opens up the
possibility of holding duty bearers accountable to respect, protect,
and fulfill them. is, however, requires political will and leads us
into the political arena of human rights work.
Critics of legal activists and their strategies should re-direct their
reproa towards the region’s political leaderships for failure to
resolve the above legal contradictions. In the countries of the Arab
region, political leaders demonstrate lile or no intention to
implement legal obligations under international human rights law,
and are apparently unwilling to correct the generally shabby state of
the law. Material and political expedience has almost always
1086
trumped legal requirements at all levels, especially in efforts to
combat corruption or ensure accountability of government actors
and service providers.
Human rights organizations are also disparaged for their la of
community representation. Detractors point to their failure to
develop broad popular support or be more organically connected to
their communities, juxtaposing ‘NGOisation’ to the more
‘legitimate’ approa of building grassroots and political movements
for rights. La of trust in the law understandably leads activists to
consider strategies of social and political mobilization. ose
strategies, however, are not without problems and pitfalls, not the
least of whi is becoming hostage to partisan politics that threaten
to reinvent the same politics of governments and opposition parties
alike. e Arab region can tell several stories about membership
organizations becoming balefields for partisan political
mobilization, or social movements that split into several competing
movements, ea espousing this or that political ideology.7
e other risk of social mobilization is the la of sustainability. It
is far easier to mobilize significant community support over a
particular urgent problem or issue, usually temporary and amenable
to co-optation and qui solutions, than it is to organize effectively,
over time, to accumulate victories and steady progress on human
rights. Mobilizing populations on the basis of specific entitlements
claimed as legal rights, let alone around a very generalized notion of
protecting rights and dignities, has proven elusive in the region.
Interestingly, in the early years of the movement, Arab governments
accused human rights defenders of being mouthpieces of the
political opposition, yet those same defenders are now called upon to
become a political opposition through social mobilization.
ese debates are still raging in the region, yet all of those
strategies are necessary and defy prioritization. Law reform is as
essential for stable societies as legal defense is for the protection of
individuals. Human rights awareness and education as well as
1087
connectedness to and support from ‘the community’ are all crucial,
especially if the hoped-for result is a human rights-educated
populace that can make claims to rights and hold officials
accountable. Yet, in public discourse, it remains a cycle of tilting at
windmills by human rights proponents: now it’s the culture, now it’s
the law, now it’s the politics.
1088
e local and the global
Discussions about the improvement of human rights within the
region are usually based on the notion that problems that exist
within the region need to be resolved through anges within the
region. While there is some truth to this point of view, this discourse
ignores some very real conundrums. e region is in fact inseparable
from global political and economic policies. Its rulers are active
participants and willing contributors to current economic and
political hegemonies. Consider only the oil-ri states whose
decisions on their vast reservoirs of fossil fuels in terms of
production levels and supply and consequently, pricing, directly
affect the advanced economies in the world. e advanced
economies produce for a profit and the Arab populations consume
this production even as their governments fail to provide for any
viable local or regional self-sustaining alternatives. Consider also the
vast investments made by Gulf monaries in the global and
particularly Western economies. e more populous and poorer
countries, su as Egypt, Syria, Morocco and Yemen, have been
sharply affected by the neoliberal model of open markets and global
competition, coupled with demands that governments reduce public
spending on economic and social safety nets, under the guise of
austerity measures.
is situation places the entire region of 350 million people in the
midst of a vicious cycle: An inequitable and increasingly centralized
global economic system that sustains poverty even as it purports to
fight against it. It provides lile more than an inadequate standard of
living for the majority of people in the region, who are ruled by
leaders who benefit directly from this system and monopolize
national resources (scant or abundant as they are) through
1089
corruption and clientelism. Aempts to protest those national and
international policies that denigrate the enjoyment of economic and
social rights are met with severe restrictions on civil and political
rights.
People struggling for respect of human rights in this region have
also been sorely disappointed in the response of the international
system to violations of civil and political rights. e reasons are self-
evident and discussed earlier in this apter, but it is important to
recall important actions and failures that cause people to doubt the
seriousness of global efforts at human rights protection.
Topping the list of course is the most shameful failure of the
international community to protect the lives and futures of
Palestinians, including the 4.4 million under direct Israeli occupation
in the West Bank and Gaza, half of whom are also part of the 4.7
million refugees who have been awaiting restitution and the right to
return for 67 years. is in addition to 1.6 million Palestinians living
as second-class citizens of the State of Israel, whose claims to
equality, indigenous, and minority rights continue to be ignored.
ere have been repeated U.N. Human Rights Council reports and
abundant documentation of Israel’s systematic human rights
violations, including grave breaes of humanitarian law and war
crimes. Yet the international community has proven incapable of
effective protective action at any level, due primarily to the United
States’ intransigent support for Israel.
International incapacity on Syria is the most recent example and a
glaring one. It contrasts sharply with the invocation of the
‘Responsibility to Protect’ doctrine in the case of Libya, where there
was near global consensus on the need to remove the pariah regime
of Muammar Qaddafi—perhaps more of a motivation than the
protection of civilians.8 Aer four years and nearly 300,000 deaths,
eight million refugees and internally displaced persons and the
massive destruction of Syrian infrastructure, the U.N. Security
Council is still unable to aieve its mission of ensuring peace and
1090
security there, this time due to Russia and China’s obstruction. e
‘war against terror’ by the United States and its allies engendered by
the Twin Towers aa by Al-Qaida Jihadists on September 11, 2001
has undermined any credibility that those countries might have had
in advancing the global human rights discourse. Besides the
invasions of Afghanistan and Iraq (without U.N. authorization), the
United States has redefined international law for itself by justifying
the holding of prisoners in Guantanamo as ‘unlawful combatants’
without arge or trial for almost 15 years. Another example is
American use of pilotless drones in ‘targeted killings’ (read: extra-
judicial executions) that have killed mostly civilians, as a recent
report has revealed.9
Populations in the Arab region, who have borne the
overwhelming brunt of suffering from terrorism, don’t fail to see the
contradictions of actions and policies that violate human rights in
the name of protecting people from terrorism. ey also note the gap
between rhetoric at the Human Rights Council and political and
military support for regimes that violate human rights as a maer of
policy. As a consequence, there is a strong prevailing perception of
an international double standard when it comes to the region.10 For
many, this perception brings the human rights regime and its
purported universal values into question.
1091
What’s a human rights defender to do?
ere is lile new in the frustrating situation discussed above, and
perhaps no one feels the depth of frustration as mu as human
rights defenders in the region do. e question is what to do short of
giving up completely. Can the current downwards spiral be
reversed? Is it time to give up on the human rights approa and
return to political party mobilization, revolutions, and more
reinventions of the wheels of history? What avenues are open to
human rights defenders?
Of course, big-picture solutions are not in the hands of human
rights defenders or democracy activists. In the global arena of state
relations, human rights remain only a small part of a mu larger
game of economic, strategic and military interests where the rules
are skewed in favor of the ri and powerful. Civil society actors are
allowed to observe and, once in a while, they are dealt a hand or
two. Nevertheless, they are continuing to assert their right to be
heard, on the one hand, and, on the other hand, to articulate their
demands and pressure at different levels for structural anges that
address those demands.
It is not fair to say that governments are simply not interested in
ange. In certain moments of history, a higher morality has allowed
for international acceptance of and commitment to loy ideas like
human rights and international cooperation to resolve conflicts. e
United Nations Charter is a prominent example. Another is the
system of human rights protection in all its branes: human rights
law, humanitarian law, refugee law and their conventions and
treaties. However, states implement their legal obligations under
these laws selectively or not at all. Human rights defenders are
excluded from this political decision-making arena, except for the
1092
small spaces they are allowed in United Nations human rights
forums and meanisms. ey can present their reports, make their
claims and demands for reform and protection, and suggest new
provisions and meanisms. Indeed it can be claimed that the
current human rights system owes its existence to the advocacy and
pressure by international civil society organizations.
In the Arab region there appears to be two human rights arenas:
the one states play in, and the one that NGOs populate, and the
twain hardly ever meet except perhaps at the United Nations.
Despite the continued severe cradown on civil and political rights,
there is some movement forward as evidenced earlier in this
discussion. e League of Arab States has begun to pay more
aention to human rights concerns; its various directorates are
increasingly incorporating human rights considerations into their
work. e League is currently considering the adoption of a region-
wide human rights strategy and debate on relaxing the restrictions
on NGO participation in its deliberations is taking place. As with
other anges mentioned above, it remains to be seen whether this is
cosmetic or representative of a slow forward-looking ange.
is is to say that the doors are not sealed in the face of human
rights developments in the region; they are merely closed rather
tightly. It is still possible to put a foot in, to demand to be heard, and
to continue the pressure on states to implement what they have
legally and politically commied themselves to in rhetoric.
To move the human rights agenda in the Arab region forward
requires an integrated approa that considers the moral, legal, and
political dynamics discussed previously. ere is a need to consider
law, culture, and politics as a whole, and to tale ea of them while
keeping all of them in mind. Civil society actors, especially human
rights defenders, can articulate comprehensive strategies that
incorporate legal defense and advocacy and reference to legal
obligations into a societal movement framework that can develop
sufficient public pressure to make a dent in the policies of
1093
governments. Building su a social movement also requires
education and a culturally sensitive approa that nevertheless
emphasizes universal values, making clear that the sum total of
human rights standards are in fact aimed at human dignity, a goal
supposedly shared by all. is is consummately political of course,
but it’s a clean politics that is not aimed at gaining or exercising
power to rule, but at rallying collective power.
A social movement of this sort still requires leadership, but not
necessarily individual leaders. ere are no heroes to save the day.
Rather, leadership comes from the substance of what individuals and
organizations do, and from the creative strategies and mobilizing
approaes they employ. e global human rights movement has
long been inspired and strengthened by the work of international
organizations su as Amnesty International, the International
Federation for Human Rights, Human Rights Wat and many
others. ey do not necessarily employ the same strategies and there
have certainly been problematic issues in their relationships to
regional and national organizations. But these organizations may
claim ‘leadership’ on the basis of their adherence to human rights
principles and clean, non-political approa to holding everyone in
the international political community accountable, without
exception.
e Arab region still las for su leadership of its human rights
movement, although a number of regional organizations have at
times played an important convening role to articulate common
strategies in the face of common human rights problems. ere are
many examples and countless recommendations made by regional
human rights meetings. ese efforts, however, have been paty
and inconsistent, venturing sometimes into the political/ideological,
sometimes relying too mu on the efforts of individual people and
organizations, and oen hampered by a la of financial support. It
is important to always remember that the issues national
organizations confront are formidable in most countries, and while
1094
they try to galvanize sufficient regional solidarity and mutual
support to confront them, those organizations have been unable to
focus on mu beyond their own immediate struggles.
A human rights-based social movement in the Arab region
requires leadership and at the same time it needs to be decentralized.
e Boyco, Divestment and Sanctions Movement (BDS) may serve
as an inspiring model to consider. BDS’s mission and strategies are
human rights-based and well known: to bring pressure on states,
commercial companies, universities and other institutions, to desist
from activities that support the continuing Israeli occupation and
violations of international law and Palestinian human rights.
Initiated by Palestinians, it has grown exponentially in the past 10
years and has garnered significant global support, scored many
successes and is beginning to have tangible effect. Yet BDS has no
individual ‘leaders’ to command the masses, only a BDS National
Commiee composed of organizations not individuals. e
commiee helps to coordinate and runs a web site that the
multiplicity of participants can refer to and get information and
advice for their campaigns and advocacy at the local and national
levels.11 e actual success of BDS is its decentralized approa,
where any group of people including students, union activists,
academics, and professional associations can join and undertake BDS
activities in their own communities. How they do it and what
particular issues or campaigns they wish to pursue is up to the
participants, with support as needed from the commiee.
e potential to build a human rights social movement in the
region and globally can take lessons from four factors that have
ensured BDS success to date. First is the outrea to communities
beyond human rights activists, lawyers, and educators. Reconnection
with the community of human rights ‘beneficiaries,’ as stated above,
is important but the question is how to bring those communities on
board and past assumptions and misrepresentations regarding
human rights. is brings in the second important factor: the
1095
simplicity and universality of the message. Human rights actors
would need to distill the many rights messages to their essential
components: human dignity, freedom from any form of coercion,
and accountability (interestingly, very similar to the demands of the
‘Arab Spring’). When asked about ‘human rights,’ the responses may
vary across the region, but the demand for accountability is
consistent, as is the demand for freedom from coercion and respect
for the dignity of individuals and communities.
A third and very important factor is freedom from political
manipulation. A human rights social movement is self-evidently
political but to avoid previous pitfalls partisan ideologies and
political parties should be kept from aempting to use su a
movement for narrow political ends, including ideological
mobilization. is has been one of the issues that have dogged
several national and regional human rights organizations in the
region. It may be difficult to actively keep political partisans out of
su a model of human rights social movement but it can be done at
the conceptual stage, when the original message and mission are
articulated in the direction of independence from ideologies and
political partisanship.
e fourth factor is loose but clear leadership and coordination.
Regional and national organizations can self-select a coordination
commiee, whi would have to establish and maintain (and find
funds for) a communications and ‘messaging’ strategy as well to
campaign for support and participation. e key, however, is for su
coordination not to claim to be ‘representative’ of anyone, or
propose to speak on behalf of human rights or its activists in the
region; this is not a ‘super NGO.’ Rather, coordination can be
designed to aid and assist and encourage those on the ground to
pursue their own defense and promotion of human rights.
Participants on the ground would identify and pursue their role in
accordance with local and national or regional priorities as they see
them, and implement strategies they determine to be effective. In
1096
that sense, traditional human rights strategies would continue to be
employed. is would include legal defense and law reform;
engaging with human rights meanisms at national, regional and
international levels; promoting human rights awareness and
strengthening its education; focusing on women’s rights, ild rights,
refugee rights, and insisting on the full panoply of economic, social
and cultural rights. Coordination through information exange can
only help make those strategies more coherent, beer informed, and
potentially more effective.
Instead of continuing to debate the politics, law, and culture of
human rights, su a social movement may bring them all together
in an integrated approa; the totality of what all the actors on the
ground are doing. Its leadership can provide support for those actors,
as well as a place where a comprehensive understanding of the full
and ri complexity of human rights struggles in the region can be
had.
ere are no magic solutions, only ideas and strategies, and
continuing struggles to have an effect on the policies and practices of
governments. Human rights defenders will continue to do all they
can to defend and protect rights in the region, sometimes at great
risk. Regional and international solidarity is sorely needed to protect
them as well. ose of us who have been active in the movement for
a long time have done—and continue to do—all that we can. Our
hope remains that a younger generation of activists, more energetic
and more creative than we are, are taking up the baton.
1097
Notes
1 e golden age of Egyptian human rights activism has waned aer President Sisi came
to power in Egypt, and the government instituted a heavy-handed aa on human
rights organizations. Several of them have closed down while others le the country
into self-imposed exile, and the rest currently keeping a fairly low profile.
2 Azzam, F. “Playing not to lose: e U.N. human rights game and the Arab region” in
Makdisi, K. and Prashad, V. (eds.). Land of the Blue Helmets: The United Nations and the
Arab World (Oakland, CA: University of California Press, 2016).
3 World Bank Press Release (October 21, 2015) “Economic indicators failed to predict Arab
uprisings,” available at: www.worldbank.org/en/news/press-
release/2015/10/21/economic-indicators-failed-to-predict-arab-uprisings; last viewed
October 22, 2015.
4 See for example Newton, M., “IMF praises Tunisia’s economic policies and reforms
(September 1, 2010), Global Arab Network, available at:
www.english.globalarabnetwork.com/201009017095/Economics/imf-praises-tunisias-
economic-policies-and-reforms.html; last viewed October 21, 2015.
5 Abdou, E. et. al., “How can the U.S. and international financial institutions best engage
Egypt’s civil society?” (June, 2011), Brookings Institution, available at:
www.brookings.edu/resear/papers/2011/06/egypt-civil-society; last viewed October
21, 2015.
6 Azzam, F. (2002), “Civil and political rights in Arab constitutions” in Human Rights in
Arab Thought: Studies in Texts (Beirut: Center for Arab Unity Studies) (Arabic).
7 Azzam, F. (February 6, 2014), “NGOs vs. grassroots movements: a false diotomy” in
the online Al-Shabaka Palestinian Policy Network, available at: hp://al-
shabaka.org/ngos-vs-grassroots-movements-false-diotomy; last viewed July 7, 2016.
See also Azzam, F. (June 2014), “Why should we have to represent anyone?” in Sur—
International Journal on Human Rights, vol. 11, no. 22 (Sao Paolo, Brazil), available at:
1098
www.conectas.org/Arquivos/edicao/publicacoes/publicacao-20141016121645464-
08810787.pdf; last viewed July 7, 2016.
8 See discussion in Azzam, F. and Pison Hindawi, C. (forthcoming), “Arab regional debates
on the responsibility to protect: frustrations and expectations,” in Bellamy, A (ed.), The
Oxford Handbook on the Responsibility to Protect (Oxford: Oxford University Press).
9 Scahill, J. et. al. (October 15, 2015), The Assassination Complex: The Drone Papers; e
Intercept, available at: hps://theintercept.com/drone-papers/the-assassination-
complex/; last viewed October 22, 2015.
10 Azzam, F. (2014), “Protecting those we like: Arab civil society perspectives on
intervention and protection;” Chapter 4, Vol. 1 of Takahashi, S. (ed.), Human Rights,
Human Security, and State Security; the Intersection (Santa Barbara, CA: Praeger
Security International).
11 See www.bdsmovement.net/; last viewed July 7, 2016.
1099
33
Egypt 2011–15
How can a democratic revolution fail to
improve human rights conditions?
Amr Hamzawy
1100
Introduction
e last time I endeavored to write academically about human rights
and freedoms in Egypt was prior to 2011. Ba then, I did not have
direct contact with victims of human rights abuse. I was also never
on a site in whi human rights violations were being perpetuated as
they were being perpetuated. Ba then, I was not a victim of
violations of my right to express myself and move freely.1 Since
2011, all of that has anged dramatically.
1101
A decade of teleological prophesies: 2001–11
In the second half of the 1990s, as I was at work on my doctoral
thesis—“e Tensions Between Continuity and Change in
Contemporary Arab Political ought—e Debates of the 1990s”—
at the Free University of Berlin. e thesis analyzed debates among
human rights activists in various Arab countries, including Egypt.
My focus was on the dynamics of repression and the struggle for the
rule of law.
In the decade extending between September 2001 and January
2011, I wrote extensively on the root causes of the persistence of
semi-authoritarianism in Egypt and its repressive policies, whi
perpetuated wide scale human rights violations.2 Between 2005 and
2007, Anthony Tirado Chase and I co-edited Human Rights in the
Arab World: Independent Voices,3 in whi Arab human rights
defenders reflected on their daily struggles against violations,
torture, and impunity and academics from around the world situated
those struggles in broader theoretical and historical contexts. Similar
to the overall intellectual environment in the Arab world ba then,
the contributions to the volume revealed a sense that a movement
was brewing to end the long history of abuse and violations, and to
safeguard the rights and freedoms of Arab citizens.
Across the Arab world, there was a clear sense of urgency in face
of long serving dictators, absolute monars, and autocrats; as well
as in face of the wide propagation of pseudo-rational discourses—
pawns to apologists of ruling regimes and to advocates of religious
based currents—claiming to refute the universality of human rights
and suggesting notions of Arab-Muslim particularities. Yet there
prevailed an undeniably strong optimism that Arab societies were
bound to join in the global transition to democracy and the rule of
1102
law, as messy and gradual this transition was going to be. Indeed, a
teleological notion of the ultimate victory over despotism and
authoritarianism was dominant in discourses generated by Arab
human rights defenders; in this regard they were no exception to a
hopeful worldwide movement pushing for democracy.
In that decade, reviewing the general literature on human rights
in the Arab world—including solarly writings, intellectual
reflections, and reports issued by regional and international human
rights organizations—one could not have missed the rigor with
whi abuse and violations were documented. Beyond aention to
individual cases, one also could not have missed the civil courage of
human rights defenders and activists, who were vocal in demanding
broader constitutional, legal, and political reforms to end abuse and
violations, and to introduce frameworks of transitional justice to end
the long history of impunity in the Arab world. Human rights
movements were becoming societally visible and intellectually
influential, even in countries whi continued to ban independent
civil society organizations, voluntary citizens’ associations, and
political parties as in the Gulf countries, with the notable exception
of Kuwait.4 In 2003, Morocco became the first Arab country to adopt
a framework of transitional justice by establishing the Agency for
Justice and Reconciliation and tasking it to end the silence of the
past regarding massive abuse and violations—including extra judicial
killing and torture allegations—whi inspired Arab human rights
defenders and emboldened their teleological views.5
In February 2006, I was invited to participate in an all-Arab
workshop on political reform, human rights and liberties in Rabat,
Morocco.6 e Rabat workshop took sto of reform policies
introduced by Arab governments aer the adoption of the
Alexandria Reform Declaration in 2004—a document whi was
draed by a group of Arab intellectuals and officials and endorsed
by the majority of Arab governments. It spelled out a clear
commitment to gradual democratic transition, to respecting human
1103
rights and liberties, and to combating extremism.7 e Alexandria
Reform Declaration was seen in the context of Arab governments’
responses to the U.S.–Middle East Partnership Initiative (MEPI),
announced in 2002 by the Bush Administration (2000–8).8 MEPI was
shaped by post-9/11 discussions about the need to promote
democracy and human rights in the Arab world in order to fight the
root causes of terrorism. e Bush Administration, however, abused
MEPI to justify the invasion of Iraq under the pretext of
democratizing the Arab world. Many Arab human rights defenders
and activists, therefore, critically appraised the initiative as laing
democratic substance and representing a clear case of neo-
colonialism. For their part, Arab autocratic rulers and ruling
establishments rejected MEPI for obvious reasons: fear of increased
American and Western interference in governance issues in the Arab
world, unwillingness to accept the global oversight of human rights
violations that Arab rulers were commiing, and refusal of any
measures that could empower Arab civil society organizations and
social movements in their struggle for democracy. Su reminders of
needed caution in relation to the possibility of ending autocratic
ruling establishments’ ability to silence opponents were outweighed
by self-fulfilling prophecies that ‘Arab exceptionalism’ to democracy
was withering away9 and simplistic comparisons to Latin American
and Eastern European countries’ success in ending impunity and
initiating transitional justice once democratic governments took over
were on the rise.10
However, if the narrative of the ‘demise of Arab autocracy’ was
framed in an overly optimistic manner, and used in an overly
simplistic fashion by human rights defenders and activists, it was
put forward in a regional context that was aracterized by social
mobilization unprecedented since the 1950s, and by growing popular
demand for democratic measures in several Arab countries. In
Morocco, Tunisia, Egypt, Jordan, Yemen, Kuwait, and Bahrain
collective actors from professional associations, trade unions, civil
1104
society organizations, workers’ movements, religious based
movements, network based movements of rights activists, and
advocacy groups for social and economic rights were allenging the
dominance of autocratic ruling regimes and shaping new societal
realities, in whi pluralist contestation was a defining factor.
Opposition movements and independent activists were contesting
elections in professional associations and trade unions, civil society
organizations were pushing for wider public debates on
constitutional articles and laws pertaining to rights and freedoms,
workers’ movements were facing up to the autocratic grip and in
some countries—Morocco and Egypt most notably—not shying away
from taking to the streets in mass protests and puing forward social
and economic demands. Organized platforms within workers’
movements—especially in Morocco, Tunisia, and Egypt—were
campaigning against privatization measures introduced by
governments and using the judicial bran of governments as an
additional space for their struggles. Religious based movements were
penetrating the social fabric in most Arab countries, using their
arity and social activities to contest the government’s autocratic
grip, while also penetrating politics via the election meanism in
the countries with somewhat regular elections. Network based
movements of rights activists and advocacy groups—su as the
Egyptian April 6 Movement and the Kefaya Movement as well as
their counterparts in other countries—were injecting a new
dynamism in the social fabric and the body politic using
unconventional tools—ad hoc protest activities, general strikes,
partial strikes, and so on—and aempting to rea out to workers’
movements and other groups.
ese new social realities explain, at least partially, the optimism
of the Arab human rights defenders and activists throughout most of
the first decade in the twenty-first century. e rise of pluralist
contestation, in spite of the fact that most autocratic ruling regimes
were still able to fend off societal pressures, or to contain them and
1105
to endure massive social and economic crises, provided the political
foundation for the ‘demise of autocracy’ narrative. e rise of
pluralist contestation made visible cras in the autocratic structures
—cras that had always existed—deepening the allenges they
posed to autocratic rulers, primarily in civil society arenas.
e optimism of the Arab human rights movement in the last
decade also coincided with a radically anged regional environment
in the aermath of the American invasion of Iraq 2003, and the
toppling down of the criminal regime of Saddam Hussein (1979–
2003). e American invasion revealed, on the one hand, the
shoing realities of Saddam Hussein’s dictatorship and, on the other
hand, dismantled the Iraqi state in a way that subjected the Iraqi
population to the evils of sectarianism and violence. is led to wide
ranging domestic and regional debates in the Arab world. In these
debates the existential threats that autocracy, extremism, and
underdevelopment pose to Arabs were outlined and ways and means
to transcend them examined. Democracy and reform were the ‘talk
of the town’ in the intellectual capitals of the Arab world, and ruling
autocrats were forced to let intellectual elites and human rights
defenders discuss in public the need for democratic reform and
articulate action based platforms regarding how to bring about social
and political ange. In doing so, intellectual elites and human rights
defenders were reaing out to considerable segments of Arab
populations—even in the Gulf countries, whi were increasingly
unable to keep the pro-democracy wave away from their ‘subjects.’
is empowered younger generations of Arab activists to allenge
persistent autocracy and helped them discover the street as a
peaceful arena to context the realities of power and politics.
1106
Reclaiming the street as an arena for human
rights and the autocratic revenge
During the days of the democratic uprisings in Tunisia (2010) and
Egypt (2011), excessive use of force, police brutality, and human
rights violations reaed levels unprecedented in the decade before.
Both the Ben Ali and the Hosni Mubarak regimes were confined in
their last governing years to a paern of structural authoritarianism.
Key opposition parties were either domesticated or assigned a
marginal place in the political arena. Civil society organizations and
human rights defenders were contained by anti-democratic
constitutions and laws and various carrot and sti political
strategies used by regimes. is le civil society to work within the
remaining free spaces assigned to newspapers and televised annels
and to connect to the protest based activism of independent labor
movements and cross-ideological alliances demanding civil rights
and political freedoms. As well, networks of young activists began
using unconventional mobilizing teniques that depended heavily
on new communication tenologies.11
Ben Ali’s and Mubarak’s security services continued to harass
opponents. ey flexed their repressive muscles whenever needed: in
election times and other significant political events, in universities,
and against organizations and networks that threatened to transcend
the lines between what they deemed acceptable and unacceptable
defiance. Ben Ali had success in exiling and imprisoning the leaders
and cadres of the Islamist Nahda movement in the 1980s and 1990s,
and in containing the political role of the Tunisian General Union for
Work.12 Mubarak had success in crushing the radical Islamist
insurgency in Upper Egypt 1993–7,13 and in his regime’s growing
capacity to domesticate religious based and secular opposition
1107
currents. is meant that the Tunisian and Egyptian autocracy did
not need to kill citizens in a daily fashion, nor did they need to
harass and imprison scores of politically engaged citizens and
activists. ey did not feel that their rule and domination were at all
allenged. Indeed, there were various signs of restraint on the side
of repressive security services, of a laissez-faire approa that they
were adopting based on an assessment that the opposition presented
lile risk. ese signs were interpreted by human rights defenders
and democracy activists as an opening to the demise of autocracy.14
is anged, however, when these regimes faced wide scale
mobilization and the escalation of popular demands from social
justice, job opportunities, constitutional ange, anti-corruption
measures, cabinet reshuffles, and political reforms to the ouster of
Ben Ali and Mubarak. e Tunisian and Egyptian autocracies
resorted to excessive force and police brutality to contain
revolutionary dynamism. Up to 338 Tunisian citizens lost their lives
during the Jasmine Revolution and the death toll of the 18 days of
the January Revolution in Egypt was 846 victims.15 Beside the death
toll, hundreds of Tunisians and thousands of Egyptians were injured
due to the brutality with whi police forces, paramilitary groups,
and thugs faced non-violent demonstrators.16
In spite of the formal and informal violence of their security
services, as well as their last-minute political concessions, Ben Ali
and Mubarak were forced to step down. e masses who secured
these revolutionary victories in Tunisia and Egypt were not
mobilized based on narrowly defined ideological views. eir
activism was inspired, instead, by clear demands regarding social
justice, fair economic opportunities, democracy, ending corruption,
transitional justice, human dignity, and respect for human rights and
freedoms. ey were hopeful that the departure of Ben Ali and
Mubarak would enable them to configure a new relationship
between citizen, society, and the state that would move beyond
autocratic legacies and ensure their participation in public affairs as
1108
dignified citizens. For their part, human rights defenders and pro-
democracy activists were rushing to put forward their views
regarding the transition to democracy, the institutionalization of
transitional justice frameworks, and measures to end impunity. ey
no longer seemed concerned with recurrent human rights abuse and
violations. e demise of Arab autocracy was here.
1109
Egypt in transition 2011–13: military
administration aer a democratic revolution
Like many fellow Egyptians who took out to the streets in January
2011 to demand human dignity and democratic ange, I was
witness to the excessive use of force by the Egyptian security
services and police against demonstrators. e excessive use of force
and police brutality did not stop aer Mubarak stepped down on
February 11, 2011. Indeed, the Supreme Council of the Armed Forces
(SCAF), whi assumed presidential powers and prerogatives aer
Mubarak’s resignation, used some of the old president’s teniques
to silence protest movements demanding accountability for the long
years of human rights violations and corruption. e SCAF (in
power February 2011–June 2012) did not shy away from combining
excessive force and police brutality with hastily passed new laws
and amendments that were repressive in substance. It also enacted
various authoritarian policies, whi were designed to drive social
movements, networks of young activists, and critical citizens away
from the public space. SCAF also bloed all aempts to introduce
reform measures to the security sector,17 rejected the call for
establishing a framework for transitional justice, and discredited it
publicly using the authorities’ unanged control of key media
outlets.
Incidents of increased restricting citizens’ right to peaceful
demonstrations, of police brutality toward demonstrators and
striking members of independent labor movements, and of
imprisoning or otherwise intimidating young activists and critical
journalists.18 Using its allies in the state bureaucracy, in the
judiciary, and among influential economic and financial elites, SCAF
prevented the emergence of a rule of law based on justice,
1110
impartiality, and a zero impunity policy with regard to human rights
abuses. It fought against the creation of democratically legitimate
legislative and executive institutions—bloing for several months
the organization of the first presidential elections aer the January
Revolution, and in doing so delaying the transfer of its powers to the
elected president. In 2012, SCAF also used a ruling of the Egyptian
Supreme Constitutional Court to dissolve the People’s Assembly
(ba then the lower amber of the Egyptian parliament), whi
was democratically elected in 2011.19
In 2011, SCAF refused to end the state of emergency, whi
former president Mubarak perpetuated for three decades. e
various provisions of the state of emergency were used to suppress
freedom of expression, freedom of association, as well as workers’
and civil servants’ rights. Critical journalists were accused of
disseminating ‘false information’ and endangering national security.
e peaceful activism of human rights defenders was systematically
repressed under the pretext it threatened ‘public order’ and
‘stability.’ Also in 2011, the SCAF administration passed amendments
to the Egyptian Penal Code criminalizing protests, strikes, and sit-ins
that “obstruct work at public and private entities.” ese
amendments imposed imprisonment and fines as associated forms of
punishment.20 Between 2011 and 2012, the SCAF Administration
resumed the long-standing autocratic practice of subjecting civilians
to military trials, a clear violation of the basic right of citizens to be
tried by civilian courts. It also resumed the policy of containing
independent civil society actors, rejecting calls to democratically
amend the law governing the establishment and operation of NGOs
(Law Nr. 84, Year 2002). Trumped up accusations were leveled
against civil society actors, varying from receiving unauthorized
foreign funds to ploing against Egypt’s stability. In 2012, for
example, Egyptian authorities accused some domestic non-
governmental organizations, along with a few American and
1111
European foundations, of violating existing laws and referred several
of their employees to trials.21
With regard to the overall structure of state-society-citizen
relationship, the SCAF administration introduced in the spring of
2011 a set of constitutional amendments to the previously existing
constitution of 1971. e amendments primarily aimed at paving the
way to organize parliamentary elections followed by presidential
elections. ey also introduced a two level framework to form a
constituent assembly tasked with draing a new constitution for
Egypt—a parliament was to be elected and MPs were to have the
prerogative of electing members of the constituent assembly from
among themselves and from the wider public space. In spite of the
highly polarized environment, the authors of the constitutional
amendments—a group of solars, lawyers, and a military
representative—remained preoccupied with bringing into being
elected legislative institutions and enabling them to have a strong
influence in managing the post-Mubarak phase with SCAF. at
focus on institution building was ultimately the correct path;
unfortunately secular groups ignored it.22
SCAF introduced an important amendment to the political parties
law (Law 40/Year 1977, the amendments were issued in the Decree
Number 12 for Year 2011) by replacing the notorious political parties
commiee. is commiee worked as a gate keeper for the Mubarak
regime and confined its role to legalizing co-opted parties and
outlawing independent party initiatives. It was replaced by a judicial
commiee headed by the vice president of the Appeal Court and
populated with six additional judges. e result was a wave of
political party legalization in 2011 and 2012—spearheaded by the
party of the Muslim Brotherhood Freedom and Justice Party, the
Salafi party Nur, various leist and liberal parties, and the long due
legalization of the liberal Ghad Party Initiative and the Centrist
Islamist Initiative of the Wasat Party, both of whi were denied
legalization for years by the Mubarak regime’s political parties
1112
commiee. A second significant amendment, whi was introduced
to the political parties law, was to make the legalization procedures
of parties based on a notification system, i.e. party initiatives were to
notify the judicial commiee of the completion of the legalization
requirements—most notably collecting 5,000 endorsements from
Egyptian citizens residing in 10 different governorates—and the
legalization was to be recognized as successful unless the commiee
had notified the party founders otherwise within thirty days of their
application’s submission.23
Although the political parties law bans the formation of religious
based parties, at least two parties with religious based platforms
were legalized, the Freedom and Justice Party and the Nur, raising
questions about varying interpretations of the provisions of the law.
Aer July 3, 2013, the Freedom and Justice Party was declared a
terrorist organization and banned, as was the case with the Muslim
Brotherhood. e Nur Party continues to operate. However, both the
constitutional amendments and the anges introduced to the
political parties law, as well as the wider societal environment whi
continued to be mobilized in 2011 and 2012, enabled the organization
of a constitutional referendum in Mar 2011 and parliamentary
elections in Fall 2011 that were not marred by substantial violations.
e voter turnout was remarkable, reaing a 50 percent
participation of the electorate in the constitutional referendum and a
ranging around 40 percent in the parliamentary elections.
For its part, and in spite of its key role in organizing a fair
referendum and fair parliamentary elections, the SCAF aempted to
undermine the delegation of authority from it to the parliament, and
later to the elected president through issuing a document stipulating
‘supra-constitutional principles.’ is anti-democratic originated in
the SCAF and was promoted by its allies. It aimed to grant the
military establishment the status of a state over the state by not
subjecting it to parliamentary oversight, and by granting it
prerogatives to interfere in politics under the banner of protecting
1113
the civil nature of the state and constitutional legitimacy. Indeed, it
was the fear of segments of the Egyptian population of the danger of
a religious theocracy and of a watering down of the identity of the
Egyptian state and society that the SCAF tried to exploit to pass the
so-called supra-constitutional principles. e so-called al-Silmi
document (named aer the vice prime minister Ali al-Silmi) would
have ended democracy but was not adopted due to massive protests
led by the Muslim Brotherhood and a few liberal and leist groups.
During the SCAF administration, there were several incidents of
wide scale human rights violations and abuse perpetuated by the
security services and the military police.24 e most tragic event
happened on October 9, 2011. A legally licensed demonstration
condemning a wave of aas on ures25 was confronted by
security forces in a central Cairo neighborhood—Maspero. Military
vehicles ran over demonstrators, live ammunition was fired on them,
and the result was the killing of 28 citizens and hundreds more
injured. As in previous cases extending between Mar 2011 and
October 2011, SCAF denied any responsibility and blamed the
massacre either on an ‘unknown actor’ or on sectarian tensions
between Muslims and Copts. Video footage showing military
vehicles running over demonstrators and documented threats
against journalists if they covered the massacre objectively were
ignored by the authorities. As impunity continued, it became clear
that human rights violations and abuse were not going to be
regarded by Egypt’s rulers in any different manner than the pre-2011
regimes; perpetuating them, denying official responsibility, blaming
them on others, and using regime controlled media to silence critics
and defame human rights defenders demanding independent
investigation and accountability.26 Media was used to defame human
rights defenders and activists, and to incite hatred of the
revolutionary youth and even sectarian hatred between Egyptian
Muslims and Copts during the Maspero massacre. In what came to
be a notorious quote, a female anor in one of the State owned
1114
televised annels during the Maspero massacre called on
“Egyptians to leave their homes and go protect your army from the
aas of Christians.”27
A second representative incident came in November 2011.
Security forces and military police used excessive force to disperse a
small sit-in in Tahrir Square on November 19—it was a sit-in of
families of Egyptians killed during the 18 days of the revolution and
their demand was to put responsible officials on trial. Several
hundred young Egyptians joined the sit-in in Tahrir Square. In the
following six days, clashes between the demonstrators and the
security services and the military police le around 40 people dead
and scores of citizens injured. Once again, SCAF blamed
demonstrators for the violence.28 In 2012, other incidents followed
similar paerns of excessive use of force, wide scale human rights
violations, and impunity.
A different disturbing development during the SCAF
Administration was the massive increase in the number of citizens
put on military tribunals. Among them were well-known activists
and bloggers. e threat of puing young bloggers and activists on
military trials based on allegations of undermining public order and
national security was exploited systematically in an aempt to
silence criticism in relation to SCAF conduct and the wide scale
human rights violations.29 With regard to freedom of association,
NGOs continued to face the same restrictions that they faced prior to
2011. Until SCAF transferred presidential powers to the elected
president Mursi, the Egyptian authorities bloed the passing of a
liberal NGO bill. Indeed, the SCAF administration was determined
to torpedo the efforts that were made in the elected parliament—the
People’s Assembly 2012—to pass a liberal NGO bill. e Muslim
Brotherhood’s Freedom and Justice and the Salafi Nur Party sided
with SCAF. In 2012, the elected People’s Assembly was dissolved by
a ruling of the Supreme Constitutional Court in a move that was
widely interpreted as a political response by SCAF to the Muslim
1115
Brotherhood nominating a candidate for the 2012 presidential
elections. ose elections, ultimately, saw the candidate of the
Muslim Brotherhood, Muhammad Mursi, win the presidency.
As someone who remained active in public debates aer the
removal of former president Mubarak, I frequently encountered
victims of human rights abuse, and listened to their stories whi
were radically different from the official narrative propagated by
SCAF in 2011 and 2012 regarding “the forces destabilizing our
beloved Egypt and vested in destroying all our public and private
institutions.”30 In the aermath of Mubarak’s removal, I also was
appointed as a member in the quasi-governmental National Council
for Human Rights (NCHR).31 In this capacity, I was able to meet
victims as well as families of deceased or detained citizens, and to
participate in different NCHR fact-finding missions. Unfortunately,
we were never given substantial oversight authority and were
unable to hold accountable the individuals and institutions
responsible for human rights abuses. Here too, my experience was
marred by five troubling facts:
1. An increasing number of victims who were not granted
justice.
2. Documented reports in 2011 and 2012 regarding cases of
physical and psyological torture—most notably,
subjecting scores of young female Egyptians to a ‘virginity
test’ that was implemented by the military police during
peaceful demonstrations, as well as torture practices
targeting detained citizens including ildren.
3. Systematic resort to excessive force and brutality, and either
legitimated its practices as ‘needed to protect Egypt’s
stability,’ or denied being implicated in violations whenever
it seemed more opportune to do so.
4. A quasi-governmental council for human rights whi
could not issue fact-finding mission reports without
1116
clearing them first with the military authorities.32
5. A public whose political sympathies were fluctuating
radically between demanding democracy and fearing
instability. By virtue of SCAF’s control over public and
private media, Egyptian citizens were being pushed to
accept official violence against young Egyptians, and to
internalize the defamation of pro-democracy activists as
state enemies and traitors. Human rights abuses were
denied, and human rights defenders were classified as
opponents to Egypt’s desired stability.33
e first parliamentary election to be held aer the January
Revolution took place in November and December 2011. In spite of
irregularities pertaining to the use of religion in election campaigns
as well as to the use of vote buying teniques, the parliamentary
elections of 2011 were rated the most transparent in Egypt since
1952. ere were no signs that SCAF used state institutions to
meddle in the election process or to influence its results.34 I was
elected to the People’s Assembly in the elections of 2011 and served
in parliament between January and June 2012 when the assembly
was dissolved by SCAF based on a ruling of the Supreme
Constitutional Court.35
As a member of parliament, I was again witness to the realities of
human rights abuses. Peaceful demonstrations and labor protests
were met with police brutality, and the military police were
systematically involved. Using my parliamentary oversight rights, I
questioned several times, both in plenary sessions and in commiee
meetings,36 police brutality and demanded that the Ministry of
Interior develops a structural reform plan, and accept a meeting with
parliament to discuss possible measures to end human rights abuses
and impunity. e government,37 whi was controlled by SCAF,
rejected all these aempts and used controlled public and private
1117
media to defame me and other critical parliamentarians as state
enemies.
On the other side, SCAF utilized its stable alliance with the
Muslim Brotherhood’s Freedom and Justice Party and the Salafi Nur
Party to blo the majority of legislative initiatives tailored to
improve the Egyptian legal framework from a human rights and
freedoms’ perspective. e Muslim Brotherhood and Salafi parties
together held a comfortable two-third majority in the People’s
Assembly of 2012. In the Commiee on Human Rights and the
Commiee on Legislative Affairs, a few MPs—including myself—
worked on draing anges to be applied to the Egyptian Penal Code
and related laws38 to define torture in accordance with international
human rights conventions, to criminalize torture practices, and to
hold perpetuators accountable regardless of whether they are in
office or not. We also worked to dra a new law governing civic
associations and NGOs. e prepared dra law aimed at removing
existing restrictions with regard to the establishment and operation
of associations and NGOs. Ultimately, the dra law would have
brought to an end the tight security grip over Egypt’s civil society,
and opened new horizons for voluntary civic engagement. Worth
noting, also, is the fact that the dra law was being developed in
close cooperation and consultation with various stakeholders in civil
society.
Both legislative initiatives criminalizing torture and emancipating
civil society were met with government delaying tactics,39 and later
bloed by Muslim Brothers and Salafis in the People’s Assembly. A
few days prior to SCAF’s decision to dissolve Parliament, a new
legislative initiative was started in the Commiee on Human Rights
to amend the laws governing the jurisdiction of the military court
system with the objective of banning subjecting civilians to military
trials. Naturally, there was no time to aieve any progress in this
regard.40
1118
Egypt in transition 2012–13: the contested
rule of the Muslim Brotherhood
With the victory of the Muslim Brotherhood’s candidate in the
presidential elections of 2012, a second phase of post-Mubarak Egypt
began, lasting until the military coup on July 3, 2013. Muhammad
Mursi became Egypt’s first freely elected and civilian president,
ending the long lasting tradition of military officers occupying the
presidential palace. is phase of post-Mubarak Egypt was
aracterized by a growing power struggle between the Muslim
Brotherhood, supported by various religious right wing
movements,41 and the military establishment baed by the security
apparatus and the upper levels of the entrened state bureaucracy.
Most economic and financial powers as well as liberal and leist
political elites sided with the military establishment and the security
apparatus. ey were both frightened by the Brotherhood’s
dominance aer its election victories and less true to democratic
ideals and procedures as they used to claim. During Mursi’s time in
power the Brotherhood government alienated those liberals and
leists who had remained true to democracy by accepting the
outcome of Egypt’s presidential elections, and alienated as well
young activists and human rights defenders. e Brotherhood lost
the support of even these pro-democracy forces due to its silence
regarding human rights abuses commied by the SCAF
Administration and its failure to use the Islamist majority in the
People’s Assembly to push for substantial democratic reforms. Based
on the movement’s policy oices, pro-democracy activists
concluded that the Muslim Brothers were intent on ruling Egypt in a
manner similar to the Mubarak autocracy and the violent
transitional period under SCAF.
1119
Between 2012 and 2013, in the year it controlled the executive
bran of government and the Consultative Council, the remaining
legislative council,42 the Muslim Brotherhood’s policy oices were
aracterized by the following deficits:
1. e movement passed different undemocratically spirited
constitutional and legal amendments designed to curb
political rights and freedoms, including a presidential
declaration that granted former president Mursi vast
legislative powers.43
2. e president, the cabinet, and the legislative council
tolerated human rights abuses and the continuation of
impunity. Similar to SCAF’s policies, the Brotherhood
bloed the implementation of any meaningful security
sector reform.
3. Due to the duality within the Brotherhood between the
vocational movement and the political party, as well as the
dominance of the movement’s leadership in pushing
forward policy oices, the authority of elected
representatives—including former president Mursi—was
undermined in favor of the powerful Guidance Office of the
movement, whose members Egyptian citizens did not
elect.44
4. e Muslim Brotherhood tolerated the involvement of some
of its rank and file members in violence against liberal and
leist protesters.
Also in 2012, the Brotherhood, with their allies on the religious
right, passed a problematic constitutional text regarding everything
from the involvement of religion in legislative and political
processes, women’s rights, safeguards of ild rights, freedom of
religion, and enshrining the traditionally vast prerogatives of the
military establishment and the security apparatus.45
1120
From a democracy and human rights perspective, there were other
troubling signs in the Brotherhood’s year of contested rule. Several
incidents of police brutality were reported and covered up by the
Brotherhood-led cabinet. Hate spee and discrimination targeting
Egyptian Copts, Shi`a, and Bahai communities, as well as against
liberal intellectuals and secular public figures rose, and were to an
extent supported by the Brotherhood’s leadership. Supporters of the
Brotherhood and other religious right wing groups were involved in
rhetorical and sometimes physical violence against opponents—to
the extent that loss of life and human rights violations occurred in at
least one incident, al-Itihadiyya.46 ere also were other incidents of
wide scale intimidation of judges—especially the judges of the
Supreme Constitutional Court—and media professionals critical of
the Brotherhood.
e November Constitutional Declaration of 2012 was widely
perceived as the elected president’s worst mistake. It unified his
opponents—powerful bureaucratic and administrative elites of the
Mubarak regime whose influence remained intact, economic and
financial elites uncertain about the Muslim Brotherhood’s policy
directions, and nominally secular political movements that
transcended their differences and created a unity platform under the
title of e National Salvation Front.47 As protest activities organized
by Mursi’s opponents were increasing and human rights violations
against demonstrators were being reported, as well as incidents of
violent behavior of some demonstrators,48 the Muslim Brotherhood
insisted on continuing its polarizing policies. e National Salvation
Front, unfortunately, responded by calling on the Egyptian army to
interfere in politics. is simultaneously silenced voices critical of
violating democratic procedures and brought the military ba to the
fore.49 In the first months of 2013, Egypt was turning ungovernable
due to the ongoing conflict between the Muslim Brotherhood and
the military-security complex. While rejecting the stance of the
National Salvation Front, whi favored army interference in
1121
politics, I believed the only democratic solution to the crisis was to
hold early presidential elections.
Approaing the end of June 2013, Egypt was torn between
crowds that were rallying around the demand for early presidential
elections50 and crowds that were defending the elected president.
e Muslim Brotherhood responded to the announcement of mass
protests by its opponents for June 30, 2013 by organizing rallies in
different Egyptian cities that were aracterized by widespread
rhetorical violence and hate spee.51 Against this, millions of
Egyptians took to the streets on June 30 demanding early
presidential elections. In alliance with the National Salvation Front
and supported by official religious institutions—as well as the Salafi
Nur Party, whi was the first to jump from the sinking
Brotherhood’s ship—the army seized its opportunity and deposed the
elected president on July 3, 2013. A military coup was unfolding, the
democratic demand of holding early presidential elections was
ignored, the head of the Supreme Constitutional Court was installed
as an interim president, and Egypt’s short experiment with
democratic procedures was brought to an end.
1122
e military coup and the new autocracy
since 2013: Egypt’s retreat to square one
On July 3, 2013, the same day the former minister of defense, Abdul
Faah al-Sisi, deposed the elected president Muhammad Mursi, the
new regime began its human rights violations. e announcement
came in a televised meeting, and in aendance were religious
dignitaries, representatives of the Salafi Nur Party, and the general
coordinator of the National Salvation Front Muhammad al-Barad`i.
Egyptian authorities suspended without any due process several
television annels associated with the religious right wing.
Although the suspended annels were propagating hate spee and
legitimating violence, suspending them without a judicial
investigation indicated an initial turn away from the relative
freedom of expression whi Egypt enjoyed in 2011 and 2012. On the
same day, as well, the elected president and several of his aides were
arrested and detained in, at the time, unknown places.52
Only a few days aer the coup, the military police and the
security services were systematically involved in mass killing and
human rights violations against supporters of the deposed president.
On July 8, 2013, over 60 Egyptians were killed in front of a
republican guard premise.53 Egyptian authorities also moved to
detain leaders and members of the Muslim Brotherhood in a wide
cra down that painted the movement as terrorists. On July 26,
2013, the former minister of defense sidelined all existing institutions
and holders of public office, including the interim president, and
called on Egyptians to take to the streets to “authorize him to fight
terrorism.”54 e so-called ‘popular authorization’ was followed by
massive state violence and human rights abuse, whose most tragic
events were associated with the disbanding of Muslim Brothers’ sit-
1123
ins in two Cairo squares. On August 14, 2013, in the squares of
raba`a al-`adawiyya and al-nahda, more than 800 Egyptians were
killed.55
As human rights violations were reaing unprecedented levels in
Egypt, the ruling military invested in establishing a new autocracy
and punishing the Egyptian people for rising against the autocracy
of the Mubarak regime. e majority of nominally secular
politicians, intellectuals, and activists have been more than willing to
cooperate with the de facto authority regime that imposed itself aer
July 3, 2013. roughout the last two years, the voices of the new
autocracy have been on the rise, inciting hate spee and
exclusionary practices; they justify state violence, human rights
violations, and bypassing the rule of law. ey have trampled over
rights, freedoms, and democracy, and label all who oppose them as
traitors.56 ese forces and their media campaigns have
overwhelmingly won popular support; as a result the Muslim
Brotherhood and their allies in the religious right continue to make
irrational political decisions, and elements among them engage in
acts of violence and incitement. e fact that most liberal parties and
movements have abandoned the principles and values of democracy
has only helped society accept the return of state security’s
repressive practices, and popularized statements like “the war on
terrorism,” “the security solution is the only solution,” “it’s necessary
to exclude the religious right,” and “human rights, social peace,
transitional justice are luxuries that Egypt can’t afford when it’s
facing terrorism,” and so forth.57 Egypt’s post-July 3, 2013 authority
state has been initiating various substantive authoritarian measures,
ranging from introducing constitutional articles that make the army
a state over the state and approving undemocratically spirited laws
to wide scale human rights violations and the sustained politics of
impunity.58 Yet, at this level as well secular forces have continued to
cooperate with the powers ruling Egypt. By supporting the
ascendancy to the presidential palace by the former minister of
1124
defense, they have contributed to the militarization of Egyptians’
collective imagination, whi began on July 3, 2013—or in other
words, whi began with the people’s sear for a ‘military savior.’
is has resulted in people engaging in a type of politics that
overlooks civilians and civil democratic values.
Egyptians have been turning their ba on politics. A
constitutional referendum in 2014 and presidential elections in the
same year did not aract substantial voter turnout. e same fate
was shared by the parliamentary elections in 2015.59 Faced with
systematic human rights abuse and with a regime-controlled media
landscape that does everything but circulate facts, Egyptians have
retreated from the public arena that they discovered in January 2011.
e new autocracy also has been invested in passing laws and legal
amendments re-establishing its dominance over the people, over
civil society organizations representing them, and over citizens who
can be subjected to military trials, forced disappearance, and long-
term provisional detention. From a human rights perspective, the
years following the military coup in July 2013 have been the worst.60
As if all of this was not enough, the new autocracy has been
moving to curtail people’s freedom of expression. Since July 2013,
those in power have held a monopoly on the right to speak in the
name of patriotism and national interest. ey have used it to
compel people to accept the bargain of giving up freedom in
exange for bread and security, and to coax them into not resisting
the widespread human rights violations, or ignoring them and even
justifying them, because ‘Egypt is in danger’ and ‘the war on terror’
requires it.
Since July 2013, the ruling circles have reduced the nation, state,
and society to the person of Abdel Faah al-Sisi, and presented him
to people as the heroic savior required by the current ‘stage,’ the one
who is capable of ‘saving Egypt’ from ‘domestic and foreign
conspiracies.’ Since July 2013, those in power have been betraying
the voices that have risen in defense of democracy, freedom, and
1125
human rights. ey are portrayed as the source of aos and
destruction and accused of trying to overthrow the state and destroy
society. e aim has been to deprive people of the ability to think
freely and consider the logic of su voices arguing that oppression,
tyranny, and authoritarianism are the true destroyers of society and
the state. Rather than uphold the coherence of society and the state
through rights, justice, freedom, and civil peace, the reigning circles
are striving to aieve this through a servility that eliminates
freedom and the right to seek out the optimal policies and decisions
to confront the crisis of terrorism, violence, and a democratic
transition that is going off the rails.61
Since July 2013, those in power have been trying to impose their
tutelage on people’s thoughts, words and deeds in both public and
private life, both through use of the media’s meanisms for creating
false cognizance, and by propagating Sisi’s paternal authority. ey
are manufacturing a stereotype of him that compels people to accept
it when he prescribes how we should lead our private lives, whether
it is a question of correcting morals and recovering praiseworthy
customs and traditions or even regulating household consumption
paerns. is is, of course, not to forget all the prescriptions laid
down for our public lives as well. We are called upon to work hard,
stop protesting, and prioritize bread, security, and stability over
freedom and human rights. And last but not least, we are told to
place absolute faith in the heroic savior’s leadership. In this way, we
are to all be fused in one opinion and one voice and not run around
with those ‘tweeters’ outside of the flo—those voices that want to
overthrow the state and society. is is a total abolition of freedom
and the existence of the individual citizen. It does not differ at all
from the religious right’s conception of tutelage. e threat both of
them pose to Egypt is increasing, due to the popular support they
enjoy, their exploitation of the state apparatus, and private economic
and media interests to shore up their bases.
1126
Conclusion
In the last four years, human rights conditions in Egypt have been
shaped by three successive governments: the government of SCAF
between February 2011 and June 2012, the elected president
Muhammad Mursi (June 2012 to July 2013), and the current
administration of the former minister of defense, now president
Abdul Faah al-Sisi who assumed power aer the coup of July 3,
2013. With varying degrees of police brutality and abuse, all three
relied on human rights violations to sustain their power. In a tragic
turn, the January Revolution has been subverted by vicious
governments that have not shied away from killing, detaining
without any legal basis, torture, and abuse.
Egyptian citizens, who regained the street as an arena for peaceful
social and political struggles and were willing to bring forward a
substantial sacrifice—the hundreds of mostly young Egyptians killed
and the thousands injured during the eighteen days of the
revolution, have been forced to evacuate the street and yield once
again to the autocratic control of the public space—an autocratic
control that has been marred with elements of undemocratic
ideologies since 2011, whi were put forward by SCAF and the
Muslim Brotherhood Administration and have been later followed
by an Egyptian McCarthyism under the current president.
Freedom of expression and freedom of association, although
guaranteed in constitutional articles and various laws, have been
massively aaed throughout the last four years. Aas on
freedom of expression and freedom of association have ranged from
silencing critics through state control of public and private owned
media; repressive measures against journalists, intellectuals, writers,
and public figures defending human rights and freedoms including
1127
travel bans and fabricated arges and trials; imprisoning various
journalists and writers under the pretext of affiliation to the Muslim
Brotherhood or under the ever used pretext of the War on Terrorism,
and staging ongoing defamation campaigns against critics using
once again the autocratic control over public and private media; and
censorship of all published materials by the security services and the
military establishment. All of these measures culminated in 2014 and
2015 in an environment of collective hysteria that eered on
violations, including accusations of treason and conspiracy that
target those segments of the population whi still identify with the
January Revolution and its democratic demands.
Most troubling, however, is the continuation of wide scale human
rights violations and abuse, as well as major incidents in whi
crimes against humanity were perpetuated in the summer of 2013
and later, whi the January Revolution hoped to end. Most
troubling, too, is the continued impunity of state officials responsible
for horrendous violations and crimes in the absence of any
framework of transitional justice. Indeed, the Ministry of
Transitional Justice whi was created aer the July 3, 2013 coup in a
nominal concession to democratic forces and in an aempt to
appease some of them, did not even articulate its understanding of
transitional justice and confined itself to the draing of repressive
laws su as the demonstration law and the terrorism law. In the
cabinet reshuffle of September 2015, the ministry was cancelled
altogether.
1128
Notes
1 For a tweet criticizing a court ruling as politicized, I was banned from traveling
throughout most of 2014. In 2015, Egyptian authorities decided to use the same tweet to
pursue arges against me under the label of insulting the judiciary. As far as my
freedom of expression is concerned, since the military coup in 2013 my daily press
writings have been heavily censored, including several incidents of banning them
altogether.
2 Report of the Arab Organization for Human Rights on the State of Human Rights in the
Arab World, 2008–2009 (Beirut: Centre for Arab Unity Studies. 2009).
3 Anthony Tirado Chase & Amr Hamzawy (eds), Human Rights in the Arab World:
Independent Voices (Pennsylvania: Pennsylvania University Press, 2008).
4 “Previous World Reports,” Human Rights Wat, last accessed Mar 9, 2016,
hps://www.hrw.org/previous-world-reports. For a critical review of the evolution and
role of Arab human rights movements; Amnesty International, Amnesty International
Report – e State of the World’s Human Rights, Annual Reports, 2001–2011.
5 At-taqrir al-khitami li`haya`t al-insaf wa`l-musalaha al-maghribiyya (e Closing
Report of the Moroccan Agency for Justice and Reconciliation), accessed on September
23, 2015,
hps://ar.wikisource.org/wiki/%D8%A7%D9%84%D8%AA%D9%82%D8%B1%D9%8A%D8
%B1_%D8%A7%D9%84%D8%AE%D8%AA%D8%A7%D9%85%D9%8A_%D9%84%D9%87%
D9%8A%D8%A6%D8%A9_%D8%A7%D9%84%D8%A7%D9%86%D8%B5%D8%A7%D9%81_
%D9%88%D8%A7%D9%84%D9%85%D8%B5%D8%A7%D9%84%D8%AD%D8%A9_%D8%A7
%D9%84%D9%85%D8%BA%D8%B1%D8%A8%D9%8A%D8%A9.
6 “Aer 20 Years: CIHRS Moves its Regional and International Programs Outside Egypt,”
Cairo Institute for Human Rights Studies, accessed on Mar 9, 2016, www.cihrs.org/?
p=10298&lang=en. In 2014, the Cairo Center moved its base to Tunisia due to massive
restrictions imposed on its activities by the Egyptian security services and to repeated
personal threats to some of its key associates.
1129
7 Bayan al-Iskandariyya li`l-islah (e Alexandria Reform Declaration), accessed on
September 14, 2015, www.aljazeera.net/specialfiles/pages/eb8edad4-0bd0-467c-89eb-
0cc85e745b98. e Alexandria Reform Declaration was announced on Mar 14, 2004.
Its text is available here.
8 “About MEPI”, accessed on September 23, 2015, hp://mepi.state.gov/about-us.html.
9 Iliya Harik, “Democracy, Arab Exceptionalism, and Social Science,” Middle East Journal,
vol. 60, no. 4 (Autumn, 2006), 664–84.
10 Nicola Pra, Democracy and Authoritarianism in the Arab World (Boulder, CO: Lynne
Rienner Publishers, 2007).
11 “Kulina kahlid sa`id” (We All Are Khalid Sa`id) Facebook Page, accessed on Mar 9,
2016, www.facebook.com/elshaheeed.co.uk/. A notable example in this regard is the
“kulina Kahlid Sa`id” (We All Are Khalid Sa`id) Facebook Page, whi led the internet
based mobilization for Egypt’s revolution on January 25, 2011. Khalid Sa`id, whose
memory the page commemorated was killed in 2010 in the city of Alexandria in an
action of police brutality. e police personnel involved in the incident were recently
sentenced to jail.
12 In Arabic, al-itihad al-`am li`l-shughil.
13 Sarah Grebowski and Amr Hamzawy, From Violence to Moderation: Al-Jama`a al-
Islamiya and al-Jihad, Carnegie Papers (Washington, DC: Carnegie Endowment for
International Peace, 2010). e violent conflict happened ba then between the state
security forces and the two groups, al-jihad and al-jama`a al-islamiyya, and lasted until
1998. Almost a decade later, and while al-jihad was becoming an integral part of al-
qa`ida terrorism, al-jama`a al-islamiyya renounced violence and began to explore
possibilities for peaceful inclusion in Egypt’s semi-pluralist politics.
14 James L. Gelvin, The Arab Uprisings—What Everyone Needs To Know (Oxford: Oxford
University Press, 2012).
15 Office of the United Nations High Commissioner of Human Rights, Report of the
OHCHR Assessment Mission to Tunisia, 26 January – 2 February 2011, 2011.
www.ohr.org/Documents/Countries/TN/OHCHR_Assessment_Mission_to_Tunisia.pd
f (last accessed Mar 9, 2016); Amnesty International, TUNISIA: Put Human Rights at
1130
the Core of the Reform Process, Amnesty International Submission to the UN Universal
Periodic Review, May-June 2012, 2011. www.amnesty.org/en/documents/document/?
indexNumber=mde30%2F023%2F2011&language=en (last accessed September 3, 2016);
Human Rights Wat, World Report 2012, Chapter on Tunisia, 2012.
www.hrw.org/world-report/2012/country-apters/tunisia (last accessed September 3,
2016); Amnesty International, Egypt rises: Killings, Detentions and Torture In the ‘25
January Revolution’, 2011. www.amnesty.org/en/documents/MDE12/027/2011/en/ (last
accessed Mar 9, 2016); Human Rights Wat, Human Rights Watch World Report 2013:
Egypt Events of 2012, 2013. www.hrw.org/world-report/2013/country-apters/egypt
(last accessed September 3, 2016).
16 Cairo Institute for Human Rights Studies, Fractured Walls … New Horizons: Human
Rights in the Arab Region, Annual Report 2011, 2012. hp://www.cihrs.org/wp-
content/uploads/2012/06/the-report-e.pdf. According to the Cairo Institute for Human
Rights Studies, the exact number of injured Egyptian citizens between January 25th and
February 11th, 2011 was 6,467 citizens.
17 (New Leak Exposes the “Media Arms” of
Sisi), Arabi21, accessed September 28, 2015,
hp://arabi21.com/story/804013/%D8%AA%D8%B3%D8%B1%D9%8A%D8%A8-
%D8%AC%D8%AF%D9%8A%D8%AF-%D9%8A%D9%81%D8%B6%D8%AD-
%D8%A7%D9%84%D8%A3%D8%B0%D8%B1%D8%B9-
%D8%A7%D9%84%D8%A5%D8%B9%D9%84%D8%A7%D9%85%D9%8A%D8%A9-
%D9%84%D9%84%D8%B3%D9%8A%D8%B3%D9%8A-
%D9%81%D9%8A%D8%AF%D9%8A%D9%88. e reference here is to a vast network of
military, security, and intelligence institutions that has grown since the 1950s to a
leviathan with formal and informal arms as well as with massive economic, financial,
and bureaucratic assets and stakes. It worth noting in this regard that the former
minister of defense, who removed the elected president Muhammad Mursi from office
in July 2013 and became himself the president in 2014, highlighted in different speees
the existence of informal ‘arms’ of the military establishment, be it in the media
landscape, in the economy, or everywhere in the state bureaucracy. e Arabic word he
used in these speees was al-azru’.
1131
18 Cairo Institute for Human Rights Studies, Fractured Walls … New Horizons: Human
Rights in the Arab Region, Annual Report 2011, 2012. www.cihrs.org/wp-
content/uploads/2012/06/the-report-e.pdf (last accessed September 3, 2016).
,El Watan News ,”الوطن” تنشر حیثیات “الدستورية” في حكم حل مجلس الشعب“ 19
accessed on September 28, 2015, www.elwatannews.com/news/details/15636. On the
legal opinion put forward by the Supreme Constitutional Court in Egypt.
20 “Criminalizing the Right to Strike Is a Setba for Democracy and the Revolution,”
(tagrim haq al-`idrab intikassa li`l-dimuqratiyya wa`l-thuwara), Egyptian Initiative for
Personal Rights (al-mubadara al-misriyya li`l-huquq al-shakhasiyya), accessed on
September 25, 2015, hp://eipr.org/pressrelease/2011/03/25/1127. Relevant amendments
mentioned in a critical statement of several Egyptian NGOs and human rights
organizations,
21 “Egypt NGO Trial,” Huffington Post, accessed on Mar 9, 2016,
www.huffingtonpost.com/news/egypt-ngo-trial/. For further information, please review.
22 Looking ba, and as someone who opposed the constitutional amendments of 2011 and
yet called for the acceptance of the result of the popular referendum held to confirm or
to reject them whi ended with an overwhelming majority confirming the
amendments; I believe that secular groups and opinion leaders submied easily to trap
of polarization with regard to Islamists and lost a great deal of their energy fighting the
amendments aer they were confirmed. e polarization was carried out further, in the
parliamentary elections 2011, in the presidential elections 2012, and later in the
disastrous liberal and leist support for the military coup of July 3, 2013.
23 “Decree 12, 2011, Amendments to the Political Parties Law 40, 1977,” accessed on
September 25, 2015. hwww.f-law.net/law/threads/51875-
%D9%85%D8%B1%D8%B3%D9%88%D9%85-
%D8%A8%D9%82%D8%A7%D9%86%D9%88%D9%86-%D8%B1%D9%82%D9%85-12-
%D9%84%D8%B3%D9%86%D8%A9-2011-%D9%82%D8%A7%D9%86%D9%88%D9%86-
%D8%A7%D9%84%D8%A7%D8%AD%D8%B2%D8%A7%D8%A8-
%D8%A7%D9%84%D8%AC%D8%AF%D9%8A%D8%AF.
24 Cairo Institute for Human Rights Studies, Fractured Walls … New Horizons: Human
Rights in the Arab Region, Annual Report 2011, 2012. www.cihrs.org/wp-
1132
content/uploads/2012/06/the-report-e.pdf (last accessed September 3, 2016).
25 e latest of whi ba then was the aa on a ur in the southern city of Aswan—
the ur’s name is al-marinab.
26 e Association for Freedom of ought and Expression (mu`assasit huriyyat al-fikr
wa`l-ta`bir), Report-Maspero Criminally Implicated: Political Incitement of Violence,
Sectarianism, and Misleading Public Opinion (in Arabic), December 2011,
hp://aeegypt.org/wp-content/uploads/2011/12/maspero.pdf (last accessed September
3, 2016).
27 e Association for Freedom of ought and Expression (mu`assasit huriyyat al-fikr
wa`l-ta`bir), Report - Maspero Criminally Implicated: Political Incitement of Violence,
Sectarianism, and Misleading Public Opinion (in Arabic), December 2011,
hp://aeegypt.org/wp-content/uploads/2011/12/maspero.pdf, pp. 11–21 (last accessed
September 3, 2016).
28 Cairo Institute for Human Rights Studies, Fractured Walls … New Horizons: Human
Rights in the Arab Region, Annual Report 2011, 2012. www.cihrs.org/wp-
content/uploads/2012/06/the-report-e.pdf (last accessed September 3, 2016); e
Egyptian Initiative for Personal Rights, The use of Tear Gas by Egyptian Security Forces
in November 2011, 2012,
hp://eipr.org/sites/default/files/pressreleases/pdf/the_use_of_tear_gas_by_egyptian_se
curity_forces.pdf (last accessed September 3, 2016).
29 Well-known cases were related to activists Maikel Nabil, Alaa Abdul Faah, and
Hussam al-Hamlaway; all of whi happened in 2011 and 2012.
30 “Spee by Field Marshall Hussin Tantawi,” accessed on September 28, 2015,
www.youtube.com/wat?v=zE3CGQJLzFY. A widely received example of SCAF
rhetoric was delivered in February 2012 by the ba then minister of defense, Field
Marshall Hussin Tantawi.
31 I served as a member in the National Council For Human Rights between 2011 and 2012.
32 One of the most problematic episodes in this regard was the NCHR report on the
Maspero incident on October 2011, in whi military and police services killed 28
citizens participating in a previously authorized demonstration condemning aas on
1133
ures. e fact finding mission of NCHR, in whi I was a member, draed a report
condemning the military police for the violence that led to the killing. e report,
however, was censored by the Egyptian authorities, who insisted on diffusing the
accountability question. e published report reflected the ‘success’ of official
censorship. See, Human Rights Wat, “Egypty: Morsy Decree Undermines Rule of
Law” available at: www.hrw.org/ar/news/2012/11/26/248124 (last accessed September 3,
2016).
33 Televised news coverage in 2011 and 2012, both in public and private owned annels,
aests to the radical swings whi took hold of popular opinion trends. For more
details, regular reports of the Egyptian Association for Freedom of ought and
Expression, hp://aeegypt.org/category/publications_org (last accessed September 30,
2015).
34 Cairo Institute for Human Rights Studies, Fractured Walls … New Horizons: Human
Rights in the Arab Region, Annual Report 2011, 2012. www.cihrs.org/wp-
content/uploads/2012/06/the-report-e.pdf.
35 e ruling of the Egyptian Supreme Constitutional Court dissolving the People’s
Assembly was issued on June 14, 2012.
36 I served as a member in the Commiee on Legislative Affairs, in the Commiee on
Human Rights, and in the Commiee of Suggestions and Complaints.
37 e cabinet was headed by former Prime Minister Kamal al-Janzuri.
38 Most notably, the law of criminal procedures—qanun al-ijra`at al-jina`iyya.
39 Egyptian laws organizing the inner workings of parliament foresee the participation of
government representatives in plenary sessions and in commiee meetings. In relation
to the dra laws discussed here, government representation varied between legal
experts from the Ministry of Justice and legal advisors of the Ministry of Social Affairs
to representatives of the Ministry of Interior and of the General Intelligence Agency.
40 On June 14, 2012, the day on whi the Egyptian Supreme Constitutional Court
announced its ruling, we had a meeting in the Commiee on Human Rights discussing
with government representatives the two dra laws on NGOs and on the jurisdiction of
the military court system. I still recall vividly the reaction of government
1134
representatives in aendance once the court ruling was announced, paing their papers
and leaving the meeting room with a grin.
41 e right wing spectrum in Egypt is primarily composed of the Muslim Brotherhood,
whi was banned aer the military coup of 2013; along with different Salafi
movements, former violent movements su as al-Jihad and al-Jama`a al-Islamiyya, and
several splinter groups centered around former members of the Muslim Brotherhood.
Notable examples are ‘Abdul Mun`im Abu al-Fuuh who established in 2013 the Strong
Egypt Party, and the Wasat Party centered around founders Abu al-`Ula Madi—who
was imprisoned aer the military coup in 2013 and released in the summer of 2015—and
‘Issam Sultan—who is in ongoing imprisonment since the military coup in 2013 and
until this contribution was being finalized in the beginning of 2016.
42 Majilis al-Shura, the Shura Council was removed from the formation of the legislative
bran of government in the constitution of 2014 that is currently in place in Egypt.
43 www.madamasr.com/ar/sections/politics/%C2%AB%D8%B3%C2%BB-
%D9%88%C2%AB%D8%AC%C2%BB-%D8%AD%D9%88%D9%84-
%D9%82%D8%B6%D9%8A%D8%A9-%D8%A3%D8%AD%D8%AF%D8%A7%D8%AB-
%D8%A7%D9%84%D8%A7%D8%AA%D8%AD%D8%A7%D8%AF%D9%8A%D8%A9 and
hp://www.madamasr.com/ar/news/%C2%AB%D8%A3%D8%B3%D8%A7%D8%A8%D9%
8A%D8%B9-%D8%A7%D9%84%D9%82%D8%AA%D9%84%C2%BB-
%D8%AA%D9%82%D8%B1%D9%8A%D8%B1-
%D8%A7%D9%84%D9%85%D8%A8%D8%A7%D8%AF%D8%B1%D8%A9-
%D8%A7%D9%84%D9%85%D8%B5%D8%B1%D9%8A%D8%A9-%D8%B9%D9%86-
%D8%A3%D8%AD%D8%AF%D8%A7%D8%AB-%D8%B9%D9%86%D9%81-
%D8%A7%D9%84%D8%B5%D9%8A%D9%81-
%D8%A7%D9%84%D9%85%D8%A7%D8%B6%D9%8A.
44 Elections of the Muslim Brotherhood’s Guidance Office used to take place among
specific strata of the movement’s members.
45 “e New Constitution of the Arab Republic of Egypt,” e Constituent Assembly, last
accessed Mar 10, 2016, hp://constitutionaltransitions.org/wp-
content/uploads/2013/05/Egypt-Constitution-26-December-2012.pdf.
1135
46 “Egypt: Investigate Brotherhood’s Abuse of Protesters; Prosecutor Should Examine
Authorities’ Role in Unlawful Detention, Mistreatment,” Human Rights Wat, last
accessed Mar 10, 2016. www.hrw.org/news/2012/12/12/egypt-investigate-
brotherhoods-abuse-protesters. Aer Muhammad Mursi issued his constitutional
declaration of November 2012, wide protests took place across the country. In Cairo,
peaceful demonstrators mared towards the presidential palace and some of them
started a non-violent sit-in on December 4, 2012. On the same day, the demonstrators
were aaed by supporters of the Brotherhood. ere was loss of life, most notably
journalist al-Hussini Abu Daif was killed, and wide violations.
47 e National Salvation Front, jabhat al-inqaz al-watani, was formed immediately aer
the announcement of the November Constitutional Declaration. It brought together
parties su as the liberal Wafd and leist Tajamu’, newly formed leist and liberal
parties, and influential politicians su as Muhammad Al-Barad`I, Amr Musa, and
Hamdin Sabahi. I was a founding member of the National Salvation Front and was a
member of its supreme board until June 2012.
48 Most notably, different sources have reported that clashes between supporters and
opponents of the Muslim Brotherhood were widening across the country. Light
weapons and live ammunition were reportedly used in several incidents.
49 “Amr Hamzawy Articles,” El Watan News, www.elwatannews.com/articles/writer/35
(last accessed September 3, 2016). As a member of the supreme board of the National
Salvation Front, I stated publicly my opposition to any army interference in politics and
argued against calling on the army leadership to depose the elected president. However,
my position did not garner support in the front whose more influential figures su as
Muhammad al-Barad`i, Amr Musa, and Hamdin Sabahi were set to enable the army to
interfere in politics. I documented my position in various opinion articles whi were
published in the Egyptian daily al-Watan between January and June 2013.
50 “Profile: Egypt’s Tamarod Protest Movement,” BBC News, July 1, 2013,
www.bbc.com/news/world-middle-east-23131953 (last accessed September 3, 2016).
Rallying against Muhammad Mursi was centered around the Tamarud Movement,
whi collected millions of endorsements from citizens to demand early presidential
elections.
1136
51 “Support Syria Rally,” Adel Mansour Youtube Account, www.youtube.com/wat?
v=tFtIshzK_kA (last accessed September 3, 2016). On June 15, 2013, the Brotherhood and
its supporters in the religious right wing spectrum organized a mass rally in the Cairo
Sports Stadium. e objective of the rally was to support the Syrian Revolution.
However, the rally was aracterized by shoing hate spee against domestic
opponents. e elected president aended the rally and did not object to the hate
spee. For a recording of the “Support Syria” rally follow the provided url.
52 “e Closure of Islamic Media Channels and the Arrest of some of their employees is a
Clear Violation to Media Freedom,” Cairo Institute of Human Rights Studies, 2013,
www.cihrs.org/?p=6910; “Egypt: Cradown on Morsi’s supporters heralds new rights
abuses,” Amnesty International, 2013, www.amnestyusa.org/news/news-item/egypt-
cradown-on-morsi-s-supporters-heralds-new-rights-abuses (last accessed September
3, 2016).
53 It was said that the deposed president Muhammad Mursi was detained in the premise in
front of whi the tragic incident occurred.
54 “Egypt Risks Spiraling into Partisan Violence,” Amnesty International, 2013,
www.amnesty.org/en/documents/mde12/039/2013/en/ (last accessed September 3, 2016);
“All According to Plane: e Rab`a Massacre and Mass Killings Protesters in Egypt,”
Human Rights Wat, 2014, www.hrw.org/report/2014/08/12/all-according-plan/raba-
massacre-and-mass-killings-protesters-egypt (last accessed September 3, 2016); “Egypt:
Police Must Be Reined in to Prevent Further Bloodshed,” Amnesty International, 2013,
www.amnesty.org/en/pressreleases/2013/07/egypt-police-must-be-reined-prevent-
further-bloodshed/ (last accessed September 3, 2016).
55 “Egypt’s Darkest Day,” Amnesty International, 2014,
www.amnesty.org/en/latest/news/2014/08/egypt-s-darkest-day/ (last accessed
September 3, 2016); “Egypt: Roadmap to Repression, No End in Sight to Human Rights,”
Amnesty International, 2014, www.amnesty.be/IMG/pdf/2014_-_01_-
_roadmap_to_repression_english_-_copie.pdf (last accessed September 3, 2016); “All
According to Plane: e Rab`a Massacre and Mass Killings Protesters in Egypt,” Human
Rights Wat, 2014, www.hrw.org/report/2014/08/12/all-according-plan/raba-massacre-
and-mass-killings-protesters-egypt (last accessed September 3, 2016).
1137
56 Amnesty International, Egypt: Generation Jail: Egypt’s Youth go from Protest to Prison,
2015, www.amnesty.org/en/documents/mde12/1853/2015/en/ (last accessed September 3,
2016); Amnesty International, Egypt: Roadmap to Repression, No End in Sight to Human
Rights, 2014, www.amnesty.be/IMG/pdf/2014_-_01_-_roadmap_to_repression_english_-
_copie.pdf (last accessed September 3, 2016); Human Rights Wat, Annual World
Report, Egypt Chapter, 2015, www.hrw.org/world-report/2015/country-apters/egypt
(last accessed September 3, 2016); Human Rights Wat, Annual World Report, Egypt
Chapter, 2014, www.hrw.org/world-report/2014/country-apters/egypt (last accessed
September 3, 2016); Amnesty International, Annual Report, Egypt, 2014,
www.amnesty.org/en/countries/middle-east-and-north-africa/egypt/report-egypt/ (last
accessed September 3, 2016).
57 “Egypt’s Myth of Stability: Gross Abuses Don’t Deliver Security,” Amnesty
International, January 25, 2016, www.amnesty.org/en/latest/news/2016/01/egypts-myth-
of-stability-gross-abuses-dont-deliver-security/; “Egypt Draconian Counterterrorism
Law,” Amnesty International, July 15, 2015,
www.amnesty.org/en/latest/news/2015/07/egypt-draconian-counterterrorism-law/ (last
accessed September 3, 2016).
58 AFTE Egypt, Legal Comment on Project Law Regulating General Assemblies and
Peaceful Protests in Public Places, 2013, hp://aeegypt.org/wp-
content/uploads/2013/10/%D8%AA%D8%B9%D9%84%D9%8A%D9%82-
%D8%B9%D9%84%D9%89-%D9%85%D8%B4%D8%B1%D9%88%D8%B9-
%D9%82%D8%A7%D9%86%D9%88%D9%86-
%D8%A7%D9%84%D8%AA%D8%B8%D8%A7%D9%87%D8%B1-
%D8%A7%D9%84%D8%B3%D9%84%D9%85%D9%8A.pdf (accessed July 14, 2016); Cairo
Institute for Human Rights Studies, Legal Comment on Terrorist Entities Law, 2014,
www.cihrs.org/wp-content/uploads/2014/12/CIHRS.Terror.Law-.Report.pdf; “15
Independent Human Rights Organizations and Groups Criticize Expansion in Terms of
Reference of Military Judiciary,” Egyptian Initiative For Personal Rights, October 30,
2014, hp://eipr.org/pressrelease/2014/10/30/2256 (last accessed September 3, 2016).
59 “e Referendum Result,” last modified January 19, 2014,
www.sis.gov.eg/Ar/Templates/Articles/tmpArticles.aspx?CatID=4868#.Vqo6g1N97aY;
“Presidential Election Commission,” last modified June 7, 2015,
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www.sis.gov.eg/Ar/Templates/Articles/tmpArticles.aspx?ArtID=107294#.Vqo671N97aY;
“Supreme Elections: First Phase,” last modified October 22, 2015,
www.sis.gov.eg/Ar/Templates/Articles/tmpArticleNews.aspx?
ArtID=113800#.VqpAilN97aY; “Supreme Elections: Second Phase,” last modified
December 6, 2015, www.sis.gov.eg/Ar/Templates/Articles/tmpArticles.aspx?
ArtID=115633#.VqpDfVN97aY. For information on the voter turnout in the
constitutional referendum 2014, see “e Referendum Result.” For information on the
voter turnout in the presidential elections 2014, see “Presidential Election Commission.”
For information on the voter turnout in the parliamentary elections 2015, see “Supreme
Elections: First Phase” and “Supreme Elections: Second Phase.”
60 Human Rights Wat, World Report 2015, Egypt, 2015, www.hrw.org/world-
report/2015/country-apters/egypt (last accessed September 3, 2016); Human Rights
Wat, World Report 2014, 2014, www.hrw.org/world-report/2014/country-
apters/egypt; Amnesty International, Annual Report, Egypt, 2014,
www.amnesty.org/en/countries/middle-east-and-north-africa/egypt/report-egypt/ (last
accessed September 3, 2016).
61 AFTE, Annual Report, The State of Freedom of Expression in Egypt, 2013, 2014,
hp://aeegypt.org/wp-
content/uploads/2014/05/%D9%84%D8%AA%D8%AD%D9%85%D9%8A%D9%84-
%D8%A7%D9%84%D8%AA%D9%82%D8%B1%D9%8A%D8%B1-PDF.pdf (last accessed
July 14, 2016); AFTE, Annual Report, Suffocation of Public Space, on Freedom of
Expression in Egypt in 2014, 2015, hp://aeegypt.org/wp-
content/uploads/%D8%A7%D9%84%D8%AA%D9%82%D8%B1%D9%8A%D8%B1-
%D8%A7%D9%84%D8%B3%D9%86%D9%88%D9%8A-2014-2.pdf (last accessed July 14,
2016).
1139
Selected Bibliography
Brown, Nathan J. When Victory is Not an Option: Islamist
Movements in Arab Politics. Ithaca, NY: Cornell University Press,
2012.
Brown, Nathan J., ed. The Dynamics of Democratization:
Dictatorship, Development, and Diffusion. Baltimore, MD: Johns
Hopkins University Press, 2012.
Brownlee, Jason. Democracy Prevention: The Politics of the U.S.-
Egyptian Alliance. New York: Cambridge University Press, 2012.
Diamond, Larry and Planer, Marc F., eds. Democratization and
Authoritarianism in the Arab World (A Journal of Democracy
Book). Baltimore, MD: Johns Hopkins University Press, 2014.
Gelvin, James L. The Arab Uprisings: What Everyone Needs To
Know. Oxford: Oxford University Press, 2012.
Hamzawy, Amr. A Margin for Democracy in Egypt—The Story of An
Unsuccessful Transition (in Arabic). Cairo: e Egyptian
Lebanese Publishers, 2014.
Inbar, Efraim, ed. The Arab Spring, Democracy and Security:
Domestic and International Ramifications. London: Routledge,
2013.
1140
34
Reflections on Human Rights Before
and Aer the Arab Spring
Bahey eldin Hassan
1141
Introduction
Following the Arab Spring, many Arabs hoped they had le behind
the era of extraordinary and routine human rights violations.
Extraordinary violations, however, su as the gunning down of
civilians, mass rape, and the use of emical weapons against
innocent populations have continued to this day. Routine violations
have also continued, including under ‘routine’ su tactics as torture,
assassination, violent suppression of peaceful protest, and systematic
assault on freedom of opinion, expression, assembly, association, and
union participation. As before, whether extraordinary or routine, the
perpetrators of these crimes have not been held accountable through
either national or international means. So these crimes continue.
is critical situation is exacerbated by the civil wars and armed
conflicts that followed the uprisings in several countries—Syria,
Yemen, Libya (and that continued in Iraq and western and southern
Sudan)—as well as eruptions of political violence and acts of
retribution in Bahrain and Egypt. ese conflicts have provided the
space for certain non-state actors to introduce new types of human
rights violations into the region. e declaration of an ‘Islamic’ state
in Syria and Iraq by ISIS in mid-2014 is of particular note. ISIS
violations, usually against religious and ethnic minorities, include
mass killing and rape, dispossession, the institution of slavery
(including sexual slavery), and forced displacement. ese conflicts
have threatened the stability of the Arab state system and the very
existence of states like Syria, Iraq, Libya, and Yemen. And they have
turned broad swathes of the Arab region into a genuine hell.
e scale of the resulting humanitarian disasters is unprecedented
both regionally and globally. A mass displacement of millions of
people of all ages, ethnic, social, and religious bagrounds has led to
1142
refugee streams into Turkey, Jordan, Lebanon, Egypt, Tunisia, and,
more recently, Europe. 2015 saw the world facing the biggest refugee
crisis since World War II.1 e number of illegal sea crossings to
Europe turned the Mediterranean into the world’s largest aquatic
cemetery for thousands of Arabs and Africans who risk their lives
on unseaworthy vessels.2
In short, the Arab world, whi during the Arab Spring seemed to
be on the verge of moving past its state of historically exceptional
resistance against democracy, has instead become a region of
anary, crisis, and armed conflict. is constitutes a regional
problem, but also a threat to global peace and security.
Most Arab governments and many analysts in the Arab and
Western worlds have pointed a finger at the so-called ‘Arab Spring.’3
ey hold, paradoxically, its popular uprisings as responsible for
creating the conditions that allowed su a massive deterioration in
the human rights situation in the region, the eruption of civil wars
and humanitarian crises, and the fragmentation threatening the very
existence of several Arab states. From this point-of-view, the
uprisings weakened Arab governments and destabilized the
institutional pillars of the state—the army, police, and security
apparatus—giving rise to a power vacuum that allowed terrorist
groups like ISIS to flourish and grow.4
In that light, several EU governments and the United States have
made their goal the restoration of Arab world stability, at any price.
ey see this as a tool in their global war on terrorism, and hence a
priority that has pushed human rights issues off the agenda and led
them to offer political, material, and security support to Arab
governments that have commied and continue to commit gross
major human rights crimes.5 e United States and some key EU
states have even raised the possibility of a political deal that would
allow Syrian President Bashar Assad—a suspect in crimes against
humanity—to remain in power, instead of referring him to the
International Criminal Court.6
1143
ere are other analysts, however, who argue that “democracies
are more stable than authoritarian governments.”7 From this point-
of-view popular uprisings are seen not as the cause of the Arab
world’s current crises, but rather a last gasp aempt by peoples of
the region to divert the region from its current course, a course that
has its roots in decades of repressive governance.8 Unfortunately,
forces deeply entrened long before the uprisings have been
stronger than forces for reform and ange. And, despite the initial
celebrations of the Arab uprisings by the US and the EU—including
anowledgements of their own shortsighted collusions with Arab
authoritarian regimes for the sake of stability—the international
community failed to rise to the complex allenge of supporting
popular democratic forces at that historical moment. Now that
moment is past and with it the opportunity for a more secure future.
All will continue to pay an escalating price for this national,
regional, and international failure.
In this context, human rights in the Arab world—the focal point of
any serious project for reform in the region—faces allenges never
before encountered since the birth of the region’s human rights
movement nearly four decades ago. Human rights face a vicious
counterrevolution bent on uprooting the democratic sentiments that
led to the Arab uprisings. is has been justified as a reaction to a
perceived existential threat and is generously funded by Arab Gulf
monaries, whi share these existential fears. is
counterrevolution is supported internationally by a tacit agreement
among major global actors who are willing to accept any price both
for the defeat of ISIS and an end to the influx of migrants and
refugees coming to Europe across land and sea.9
Against this bleak badrop a close examination of what led to the
Arab Spring indicates that, while the dynamic that gave rise to those
uprisings persists, it has been swamped by countervailing forces.10
is apter will first examine the regional dynamics that led to the
Arab Spring. It will then look more closely at Egypt as an example of
1144
how it is that Arab state failure led both to the conditions for the
Arab uprisings and, aer their defeat, a continued vacuum of
legitimate authority and functioning state institutions—a vacuum
that was created and then filled by Egypt’s military. e Egyptian
case, it is noted, typifies the response of the region’s ruling elites to
popular uprisings, with the sole exception of Tunisia. is
counterrevolutionary wave has been supported by regional and
international powers and by global structures. In short, from the
local, the regional, international, and global, there are interloing
variables that have conspired to overturn popular aspirations for
democratic ange in the Arab world. ese place human rights
defenders in their current existential crisis: from key actors in
leading social ange just a few years ago to hunted enemies of the
state now.
Su an examination confirms the close link between human
rights violations and the creation of a socio-political incubator for
terrorism and the human wave of refugees fleeing the region. A
response to these phenomena, thus, must be founded in human
rights’ implementation, first and foremost the right of equal access
to the sources of national power and wealth for all national and
sectarian groups.11 Recognition of these continuities both before and
aer the Arab Spring reintroduces the relevance of human rights as
the only long-term solution to this region’s recalcitrant problems.
1145
Regional wellsprings of aos before and
during the Arab Spring
e Arab Spring uprisings swept ba a curtain on the region. is
revealed an astonishingly empty wasteland in place of what were
thought to be stable states. Within a few months, Syria, Libya, and
Yemen’s existence as sovereign states looked as precarious as Iraq.
Indeed, nearly all Arab states have demonstrated a ronic inability
to manage ethnic and religious diversity and shown persistently high
levels of financial and administrative corruption. In fact, the Arab
world’s states have been consistently ranked as some of the most
corrupt and least democratic in the world. State deterioration laid
the seeds for the civil wars that flashed on the horizon. Of course,
su civil wars were preceded by many conflicts, some of whi
were genocidal—as in Iraq under Saddam Hussein (against Kurdish
civilians in northern Iraq in 1986–9 and Shia in southern Iraq in
1991), Syria under President Hafez al-Assad (against Sunni Muslims
in the Hama massacre of 1982 using tactics later taken up by the
current President, Bashar al-Assad), and Sudan (against ethnic
African groups in Darfur and in the south fighting for equality in a
democratic Sudan).
roughout su events, Arab armies and security apparatuses did
not function as institutions for national integration and assimilation.
ey were, instead, tools for dismantling national belonging and
hundreds of years of coexistence and tolerance. In other words, they
destroyed the basis for stable societies and states. ese brutal
practices laid the foundation for aos and fostered a climate
conducive to the social anary and division we now see. Weakening
the rule of law and justice and eroding annels of recourse to civil
society institutions and the state encouraged force as a means of
1146
dispute resolution and nourished extremism, individual and
collective violence, and terrorism. ese gross failures of internal
governance, in short, are what opened the door for the Arab Spring
uprisings and, following the failures of those uprisings, a worsening
of the region’s nihilistic politics.
Needed reforms have to come from within domestic states and
civil societies, the popular will for whi was shown by the Arab
Spring. Iraq is the prime example of the false notion that reform can
come through foreign invasion. Only by 2015 did Iraq’s ruling elite
realize the importance of internal reform aer the Kurds had laid the
groundwork for independence in their self-governing region and ISIS
has swallowed nearly one-third of the state’s territory, with the
support of a broad swathe of Sunni Muslims who had faced
persecution from a Shia-dominated government.12 Although
Ayatollah Sistani, the supreme Iraqi Shia religious authority, has
supported Prime Minister Abadi’s aempts to advance reform, it will
likely be too late. Iraq is closer to the outcome that Sistani fears—
partition13—than to reform and the restoration of unity in a country
torn between Shia in the south, the incipient Kurdish state in the
north, and the Islamic caliphate in the west. Nevertheless, Sistani’s
position is of keen symbolic importance: it recognizes that the
potential fragmentation of Iraq into several states is not a product of
the Arab Spring, whi never came to Iraq. In fact, Sistani publicly
baed the protests that swept the country in the summer of 2015 (a
sort of delayed Iraqi Spring), recognizing that they were in support
of Iraq’s unity based in human rights’ principles of tolerance and
mutual respect.
In the first decade of the twenty-first century, political and
economic elites in Egypt, Syria, and Bahrain did initiate some
reforms. Pressure from the United States and the EU and various
democracy-promotion initiatives aer the 9/11 aas played a vital
role. But, ultimately, this historical opportunity was undercut by the
ruling elites’ inadequate political will, the opposition of the security
1147
and military establishments, and the waning of international
pressure. Even earlier, in 1998 during the final years of the rule of
King Hassan II, Morocco began introducing reforms in a more
sustained way. It is thus one of the few states to remain unshaken by
the Arab Spring. When Morocco’s February 20 group sought to
mimic the Arab uprisings, King Mohammed VI was able to undercut
them by continuing these reforms through adopting additional
(albeit limited) constitutional reform.14 is shows the success of a
path that, unfortunately, was not taken in other countries of the
region.
In the Arab monaries, vital decisions are made within the royal
families (with relatively more consultation in the case of Morocco)
rather than by state institutions, whi are merely platforms through
whi su decisions are officially announced and promoted. e
Arab Spring demonstrated that the situation differs lile in
ostensibly republican systems. Major decisions in these states are
similarly not made within institutions, su as elected legislative
bodies or high courts. ey are instead issued from a narrow clique
of individuals and their close advisors, a royal family in all but
name.
It is against these closed governing systems that Arab populations
rose, understanding that uprisings were the only avenue to ange.
e insularity of these governing cliques was confirmed even by
their reaction to these uprisings. In these states, the critical decision
during the Arab Spring of whether to renounce power or hold firm
took the form of a family discussion among the Mubaraks in Egypt,
Qaddafis in Libya, Salehs in Yemen, Assads in Syria, and Ben Alis in
Tunisia. It is significant that in four of five of these ostensibly
republican states, arrangements were well underway to ensure a
family member’s succession to the presidency. In the fih, Syria,
su a succession had already been engineered 11 years earlier when
Bashar assumed the presidency aer his father’s death. In none of
these states was there the possibility of a democratic transfer of
1148
power, meaning ange could only come from popular
confrontations.
1149
Case study of Egypt: state failure during and
aer the Arab Spring
Contrary to common assumptions in the political literature15 about
the positive role of Egyptian state institutions, particularly security
bodies, in providing relative stability during the Arab Spring
transitions, a closer look reveals a different picture. At first glance,
the situation in Egypt does seem to mat these assumptions: there
were ostensibly institutions behind Mubarak’s decision to step down,
institutions that were responding to the Egyptian uprising’s
demands. But the difference between paramilitary sectarian councils
and long-standing Mamluk-style fiefdoms is only in the details. In
fact, the decision was made within Egypt’s self-imagined royal
family, in consultation with its most loyal ally and friend:
intelligence Chief Omar Suleiman, who was appointed vice-
president in Mubarak’s final days in power.
Of course, the military establishment played a crucial role, but not
in its capacity as a state institution. Military leaders had long ago
drawn up their own plans behind the bas and in opposition to the
president and other state institutions, including its other security
bodies. is decision was based on their shared belief that the
military must protect its own private and higher interests over the
interests of both the state, its institutions, and its citizens. e
leaders of the military establishment saw themselves as a holy
sentinel, an envoy of divine intervention with authority far beyond
the mundane world of constitutional authorities and elected
assemblies. ‘I am the state,’ declared Louis XIV, and Egyptian
military leaders embraced this same sentiment. It is this that put
them on a confrontation course with the president on January 25,
2011. eir motives were the same when they took action some 30
1150
months later against the ‘Islamist’ president Morsi on July 3, 2013. In
both cases, the military was protecting its own interests and
forcefully suppressing other parties it viewed as a threat. I am the
state.
e principal priority for the military establishment in Egypt is
preserving untoued its economic interests and its extra-
constitutional political primacy, ensuring that it is free of external
oversight. e military’s exceptional status has developed over time
since the Free Officers’ ‘revolution’ of July 23, 1952. By the time of
the Egyptian uprising the military had a monopoly on heavy
weaponry, the largest human resources available to any one
institution, a vast economic empire, and dominated all discussions of
what constitutes Egypt’s national security. is combination allows
it to grant and revoke the patriotic seal of approval to citizens,
groups, political and economic projects, and rights’ proposals. e
nation is not embodied in constitutional institutions and arters
and an empowered citizenry. e nation is embodied by—indeed,
reduced to—this figure of the sacred guardian, the sentinel that acts
for all state institutions when it wishes and based on its own,
undisclosed interpretation of national security. I am the state.
One historic moment that shows this evolution of military power
came in 2010. e director of military intelligence, then General Abd
al-Faah al-Sisi,16 put before Field Marshal Mohammed Hussein
Tantawi (minister of defense and the general commander of the
armed forces) “a plan for the role of the army to prevent a seme
for the inheritance of power in the event that Hosni Mubarak cedes
the presidency.”17 It was al-Sisi’s assessment that “angry
demonstrations uncontainable by security may occur in May 2011 if
this scenario [Gamal Mubarak inheriting power from his father]
came about.” To this end, an appropriate military plan was put in
place: not to support state institutions nor to support demonstrations
against those institutions, but rather for the army to openly assume
power for itself. Based on the plan, military exercises were
1151
conducted behind the ba of other state institutions and the
president himself. When angry demonstrations did indeed erupt on
January 25, 2011—remarkably, just four months before the predicted
date—army forces deployed in a few hours to their designated
positions, with an ease and order that astounded observers around
the world.
Taking advantage of the demonstrations so presciently foretold in
order to claim power was one plank of the plan. e second plank
was to foment and hasten the day of rage by carrying out scaered
acts of vandalism and arson against public institutions, with the goal
of eroding the public’s confidence in the ability of the elderly
Mubarak to govern.18 ere are innumerable examples of this
paern, demonstrating that, in the aermath of the January 2011
uprising, the Supreme Council of the Armed Forces (SCAF) did not
shy away from any means, covert or overt, that would secure its
hold on power, including inciting aos, allying itself with Salafists,
and releasing some 800 dangerous jihadists from prison before their
sentences were served.19 While extremists were met with tolerance,
the activities of young liberal and leist activists were systematically
suppressed. Activists were subjected to extrajudicial killing and
assassination, arrest, and military trials.20 It is no wonder that
Salafists organized mass demonstrations at this time demanding that
the head of SCAF be appointed the commander, the emir, of Egypt.
All of this foretells the uprising of June 30, 2013 against the
Muslim Brotherhood government and the SCAF decision to take
over on July 3, as well as the course pursued by the regime since
then. In Egypt, the target was initially secular activists, liberals and
leists, and human rights advocates. is was combined with a
tolerance for jihadis, a temporary alliance with the Muslim
Brotherhood, and a permanent one with the Salafis. Aer the
military establishment assumed open control on July 3, 2013, the
target was widened to include the Brothers. Meanwhile, the regime
continued to cynically exploit the threat of terrorism for political
1152
advantage in order to justify striking out at all independent voices
without mercy.
Egypt is not an exception in the region. In fact, a defining feature
of Arab regimes affected by the Arab Spring uprisings is their ruling
cliques desire to perpetuate their own rule and interests at the
expense of the general public, even if this entailed anary and mass
civilian killings. In Yemen, for example, former President Ali
Abdullah Saleh had no qualms about spliing the ranks of the
military, recruiting part of it under the command of his son whom
he was grooming for the presidency, and waging an unholy war in
order to secure his or his son’s return to rule. In Syria, President
Bashar al-Assad has readily risked the territorial integrity of his
country and its endurance as a unified state. Following the legacy of
his father, he has employed genocidal weapons against his people,
killing some 300,000 Syrians, displacing nearly half the Syrian
population (11 million people), and turning four million citizens into
refugees scaered across the globe.21 He has similarly had no qualms
about making a tacit agreement with ISIS, with ea party avoiding
a direct engagement with the other and instead focusing their fire on
other Syrian opposition groups.22 Indeed, in the early days of the
Syrian uprising the government released from prisons a large
number of extreme jihadists in order to push the uprising towards
violence and extremism.
In this context, it can be observed that a major factor for Tunisia’s
exceptional status among Arab Spring states is the unique nature of
the Tunisian army: it was weaker and the only one among Arab
Spring states that had no political ambitions.23 It observed the
transition from the sidelines, while the military elites of Libya, Syria,
Egypt, and Yemen all played the role of obstacle or spoiler. It is also
noteworthy that Tunisia is alone among these countries in not
having military personnel leading the Defense Ministry. Of course,
there are other factors as well, including the relatively enlightened
position of the Ennahda movement24 and a dynamic, politically
1153
active civil society,25 but these would have been of trivial importance
if the Tunisian military elite had had the same power and ambition
as its peers in other Arab states.
1154
Conclusion
Arab military rulers and elites responded to the Arab Spring
uprisings with both opportunism and a boomless drive for revenge.
ey have had no hesitation in pushing their countries toward civil
wars, civilian massacres, assassinations, and disappearances,
mimiing the practices of Latin American military dictatorships in
the 1970s. Extrajudicial killing has become the rule and law
enforcement institutions have collapsed. is holds true even in
Egypt, whose judiciary was once the most independent in the Arab
world, but whose rulings have now become “a moery of justice,”
according to an official statement by U.N. experts.26 Su feeble U.N.
criticism points to the failure of international institutions to
positively impact su maers on the ground, including the many
atrocities that have given rise to what has been termed “the biggest
humanitarian emergency of our era.”27
e conditions that spurred the Arab Spring uprisings persist and
have even been exacerbated by the failure of the counterrevolution
to offer policies that would allow societies in Arab Spring countries
to develop. Nonetheless, anging the current course in these
countries will not be easy or qui and the price will be high and
bloody, especially in states under the rule of their military elite,
unless visionary and foresighted leaders rise among those elites.
With the possible exception of Tunisia and Morocco, the odds of
even incremental reform are very low for the foreseeable future. In
turn, human rights violations by the region’s states will likely
continue to escalate because of factors that exist and intersect at the
domestic, regional, international, and global levels. Examples of this
include the following:
1155
1. e weakness of the liberal, leist reform camp in
establishing independent political bases through whi to
effectively engage in domestic politics. is is due to a
variety of factors, foremost among them the ronic
weakness of the middle class in the Arab region in falling
prey to appeals to their fears rather than their hopes. is
has meant a failure to translate popular demands for
democratic ange into a long-term political movement.
2. e Islamist camp’s failure to democratize. It is true that the
Tunisian Ennahda Islamist movement is relatively
moderate, but it and other moderate Islamist groups (su
as Morocco’s Justice and Development Party) have
relatively lile impact on political Islam within other states
in the region. One of the most significant lessons of the
Arab Spring is that most political Islamist groups in the
region—first and foremost Egypt’s Muslim Brotherhood—
remain deeply enmeshed in the pre-Arab Spring
authoritarian legacy. Despite democratic protestations, they
only further entrened that legacy when they have tasted
power.28
3. Regionally, the violently polarized political and religious
climate has been key to the outbreak of civil wars that oen
cross borders. e Shia–Sunni split and the rise of religious
extremism as a discourse have been key regional factors
leading to the spread of terrorism as a common political
tactic in countries su as Syria, Iraq, Egypt, Yemen, and
Libya. Even in countries not in the midst of civil wars,
political violence is widening as a result of the enervation of
law-enforcement and other governmental institutions and
the strangulation of civil societies throughout the region.
is has occurred due to the domestic failures noted above,
but there is also a regional dynamic—including funding
1156
from Gulf countries—that supports reactionary actors and
informs these local failures and their spread.
4. Internationally, a growing confrontation between West and
East (the laer represented by Russia and China) plays itself
out in, for example, the increased potential for military
confrontation in Syria. is complicates any possibility of
negotiated or domestic just solutions to the region’s
conflicts. Further, this polarization is undermining the
effectiveness of the U.N. and its associated bodies and
agencies in their on-the-ground work on democratic state
building.
5. Globally, the dominance of the military-security approa
to countering terrorism, despite its abject failure since the
9/11 aas, has led to counterproductive policies, including
support by the United States and some EU states for their
regional allies most responsible for creating the conditions
that produce local and global terror. Disregarding the roots
of terrorism in human rights violations has both
exacerbated what feeds terrorism and strengthened the
influence of the security and military elite in the Arab
world, giving them cover for human rights crimes. Until
this counterproductive synergy is reversed, current crises
will only get worse, with ill effects locally, regionally, and
globally.
All of this presents an existential allenge to the historic mission
of human rights defenders in the Arab world. Su defenders are on
the agenda of governments in the region simply as targets for
elimination. In turn, human rights groups are focusing solely on
survival. How to reverse this dramatically deteriorating situation, so
different that just a few years ago? Noble crying on behalf of victims
is no longer sufficient except as a mere gesture to appease one’s
conscience. Su organizations must, instead, draw practical lessons
1157
from shiing political and security developments in their states, the
region, and the world.29 is needs to inform a discourse of public
engagement that has so far been laing. One element toward
rectifying this would be paying more aention to situate human
rights NGOs within broader reformist movements oriented toward
human rights, however modest those commitments are. On the
international level, the Arab human rights movement should not
stay trapped by global polarization between ‘the West and the rest.’
It cannot survive without a broader spectrum of global allies. In this
context launing a long-term strategic dialogue with rising
democracies in the Global South should assume greater significance.
Most importantly, at a time where the whole world is focused on the
growing threat of terrorism, it is key that human rights NGOs
communicate a timely message: that rather than siding with Arab
governments’ deadly tactics, there must be global cooperation to
advance human rights if the Arab world is to become a source of
stability rather than instability.
In the context of lessons learned from the Arab Spring, some
human rights organizations in the Arab world have already turned
their aention to both security sector reform and to the reform of
religious discourse. Five years aer the Arab Spring we observe, on
the one hand, that militaries and security bodies have played a
leading role in countering by any and all means social and political
ange in Arab countries, even if it means engineering aos. On the
other hand, the same militaries and security bodies are consistently
failing to counter ISIS and other terror groups as they do not have a
legitimate and appealing moral discourse to counter the nihilistic
appeal of su groups. It is up to human rights groups to help
counter this appeal, at least in part by working with Muslim
traditions that are more reformist and do not contradict human
rights principles.
It goes without saying that the Arab world’s military and security
structures are at the heart of the region’s ronic human rights crisis.
1158
ey are, as well, part of the terrorism and radicalization problem,
not part of the solution. e Arab Spring provided a brief window of
hope that these structures that produce despair and extremism could
be overthrown or reformed. at window quily shut when
counterrevolutions either overthrew or fractured movements for
democracy. Nonetheless, the underlying issue raised by the Arab
Spring—violations of human rights that result in state instability—
will continue to grow in strategic importance. A fundamental reform
of the structure of civic–religious and civilian–military relations—
especially subordinating the military establishment to a democratic
oversight—are keys to any positive developments in the status of
human rights and stability of this region. is is no small maer.
Su developments, however unlikely, are the only hope to ending
the impetus behind the Arab world as a source of conflict, terrorism,
and refugee flows—interloing crises that have destructive local and
global impacts.
1159
Notes
1 Dimitris Avramopoulos, “A European Response to Migration: Showing Solidarity and
Sharing Responsibility,” Aug. 14, 2015, hp://europa.eu/rapid/press-release_SPEECH-15-
5498_en.htm.
2 Bahey eldin Hassan, “Injustice Kindled Mideast Chaos,” The New York Times
International Weekly, May 15, 2015, hp://nytweekly.com/columns/intelarives/05-15-
15/ (last accessed September 3, 2016).
3 See for example Kristina Kaus, ed., Geopolitics and Democracy in the Middle East
(Madrid: FRIDE Books, 2015), p. 14.
4 Daniel Byman, “Terrorism Aer the Revolutions,” Foreign Affairs vol. 9, no. 3 (May–
June 2011). Byman expected the uprisings to result in the flourishing of terror networks.
5 See Françoise Dumont and Karim Lahidji, “L’Occident, bras armé des dictatures,”
Liberation, Aug. 16, 2015, www.liberation.fr/monde/2015/08/16/l-occident-bras-arme-
des-dictatures_1364409. English translation available at www.fidh.org/International-
Federation-for-Human-Rights/europe/france/the-west-a-supplier-of-arms-for-
dictatorships (last accessed September 3, 2016).
6 Jon Kerry, the US secretary of state says that Assad’s downfall can happen at the end of
a Syria peace process, not the beginning
(www.telegraph.co.uk/news/worldnews/middleeast/syria/11877207/John-Kerry-soens-
US-demand-that-Assad-must-go.html). On the other hand, Hammond, the British
Foreign Minister, stated “If the price for doing that is that we have to accept that Assad
will remain as titular head of state for period of time, do I really care if that’s three
days, three weeks, three months or even longer? I don’t think I do,”
www.telegraph.co.uk/news/worldnews/middleeast/syria/11911031/Assad-can-stay-in-
power-three-years-or-longer-says-Hammond.html (last accessed September 3, 2016).
7 Anthony Chase, Human Rights, Revolution, and Reform In The Muslim World (Boulder,
CO: Lynne Reiner Publishers, 2012).
1160
8 Bahey eldin Hassan, “Defending the Arab Spring,” introduction to Human Rights in the
Arab Region, Sep. 2015, www.cihrs.org.
9 Remarks by High Representative/Vice-President Federica Mogherini at the joint press
conference with Etienne Sneider, Luxembourg Defense Minister, following the
informal meeting of ministers of defense, Luxembourg, 3 September 2015,
hp://eeas.europa.eu/statements-eeas/2015/150903_02_en.htm (last accessed September
3, 2016).
10 James M. Dorsey, “e Middle East: Who Says Popular est for Change Has Been
elled,” Aug. 29, 2015, hp://mideastsoccer.blogspot.sg/2015/08/the-middle-east-who-
says-popular-quest.html (last accessed September 3, 2016).
11 Hassan, “Injustice Kindled Mideast Chaos.”
12 Patri Coburn, Da`ish: `awdat al-jihadiyin (Dar al-Saqi: Beirut, 2015).
13 “al-Sistanti yuhadhdhir min khatar ‘taqsim’ al-`Iraq ma lam yunafidh islah haqiqi,” Aug.
21, 2015,
www.i24news.tv/ar/%D8%A3%D8%AE%D8%A8%D8%A7%D8%B1/middleeast/82794-
150821-%D8%A7%D9%84%D8%B3%D9%8A%D8%B3%D8%AA%D8%A7%D9%86%D9%8A-
%D9%8A%D8%AD%D8%B0%D8%B1-%D9%85%D9%86-%D8%AE%D8%B7%D8%B1-
%22%D8%AA%D9%82%D8%B3%D9%8A%D9%85%22-
%D8%A7%D9%84%D8%B9%D8%B1%D8%A7%D9%82-%D9%85%D8%A7-%D9%84%D9%85-
%D9%8A%D9%86%D9%81%D8%B0-%22%D8%A5%D8%B5%D9%84%D8%A7%D8%AD-
%D8%AD%D9%82%D9%8A%D9%82%D9%8A%22 (last accessed September 3, 2016).
14 Bahey eldin Hassan, “e Arab Spring: A Struggle on ree Fronts,” in Fractured Walls
… New Horizons, annual report on the status of human rights in the Arab world in 2011
(Egypt: Cairo Institute for Human Rights Studies, 2012).
15 See for example Dr. Abdel Monem Said, “e Paradox of the Egyptian Revolution”,
Crown Center for Middle East Studies, Sep 2011. He wrote “By surrendering his powers
to SCAF, Mubarak assured the continuity of the state, as represented by three major
institutions.” 1) SCAF, 2) the Judiciary, 3) … “e army’s decision to refrain from
supporting the regime and to protect the revolution from a violent confrontation with
the regime, along with its orestration of Mubarak’s smooth departure, brought a
number of revolutionary groups to adopt the assessment that “the people have made the
1161
revolution, but the army protected it.”
www.brandeis.edu/crown/publications/meb/meb55.html (last accessed September 3,
2016).
16 Some three years later, Sisi would lead a rebellion against a different president and
become president a year later.
17 Abdullah al-Sennawi, “al-Sisi wa-l-marshalat al-mutaqa`idun,” al-Shorouk, Aug. 29,
2015, www.shorouknews.com/columns/view.aspx?cdate=29082015&id=870911b3-fd17-
43c0-a9b8-ee9043ede175 (last accessed September 3, 2016).
18 Omar Qenawi, Khabarni al-`andalib (Cairo: al-Adham Publishers and Distributers,
2010). e author relates these events as learned through his relationship with a military
security officer that began prior to the January 25 uprising; the officer told the author of
many of these acts of provocation before they occurred. e author himself was
involved in important protest movements in Egypt, including the Kefaya movement and
the uprising itself. e author does not condemn these acts, but instead sees them
indirectly, as actions had helped the January uprising. Qenawi thus criticizes the youth
activists who opposed SCAF policies and practices aer Mubarak’s fall. Qenawi only
later realized that the officer belonged to that particular security body. When he tells the
officer that he despairs of ange in Egypt, before January 25th uprising, because there is
not enough popular momentum for it, the officer reassures him that ange is inevitable,
wrought by the author and other ‘angry youth.’ is kind of civilian-military/security
relationship explored in the book is not limited to the author, but extends to a broad
network of liberal and Muslim Brother political activists. It also probably includes
several journalists, some of whom prior to the 2011 uprising helped to shape public
opinion and distill all of Egypt’s intractable problems into exactly the issue of major
concern to military leaders: that Gamal Mubarak and his quasi-liberal clique might
assume the reins of power. But not all su activists and journalists possess Qenawi’s
courage and guilelessness. is book is but one documented, published example—still
not denied by any official or institution—of the irresponsible role played by an
institution commonly described as a pillar of stability, exploiting the formidable public
resources at its disposal to foment aos with the goal of realizing the narrow interests
of a particular institution or the political ambitions of some of its leaders at the expense
of the nation.
1162
19 Hossam Bahgat, “Who Let the Jihadis Out?” Mada Masr, Feb. 16, 2014,
www.madamasr.com/sections/politics/who-let-jihadis-out. e release orders were
approved by then Gen. Sisi, in his capacity as director of military intelligence. See
hp://almesryoon.com/%D8%AF%D9%81%D8%AA%D8%B1-
%D8%A3%D8%AD%D9%88%D8%A7%D9%84-
%D8%A7%D9%84%D9%88%D8%B7%D9%86/463265-
%D8%A8%D8%A7%D9%84%D8%A3%D8%B3%D9%85%D8%A7%D8%A1-
%D8%A7%D9%84%D8%B3%D9%8A%D8%B3%D9%8A-%D8%A3%D8%B7%D9%84%D9%82-
%D8%B3%D8%B1%D8%A7%D8%AD-
%D8%A7%D9%84%D8%AC%D9%87%D8%A7%D8%AF%D9%8A%D9%8A%D9%86-
%D9%88%D9%84%D9%8A%D8%B3-%D9%85%D8%B1%D8%B3%D9%8A (last accessed
September 3, 2016).
20 Akram Ismail, “Wa li-madha fukk asr al-jihadiyin?” Mada Masr, Feb. 19, 2014,
www.madamasr.com/ar/opinion/politics/ولماذا-ُفك-أسر-الجھاديین؟ (last accessed
September 3, 2016).
21 See the appeal from the Syria Campaign, hps://diary.thesyriacampaign.org/ending-the-
refugee-crisis-starts-with-ending-the-syria-crisis/ (last accessed September 3, 2016).
22 CNN interview with King Abdullah of Jordan, May 3, 2015,
hp://cnnpressroom.blogs.cnn.com/2015/05/03/king-abdullah-what-we-ask-is-other-
religions-and-societies-across-the-world-stand-with-us/ (last accessed September 3,
2016).
23 Hassan, “e Arab Spring: A Struggle on ree Fronts.”
24 Ibid.
25 Ibid.
26 U.N. Office of the High Commissioner for Human Rights, “Egypt: Mass death sentences
– a moery of justice”, www.ohr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=14457 (last accessed September 3, 2016).
27 António Guterres, the U.N. High Commissioner for Refugees, in “Needs Soar As Number
of Syrian Refugees Tops 3 Million,” Aug. 29, 2014, www.unhcr.org/53ff76c99.html (last
accessed September 3, 2016).
1163
28 For additional detail, see Bahey eldin Hassan, “What Prospects for the ‘Arab Spring’ in
Light of an Early ‘Autumn’ of Political Islam?” Delivering Democracy, annual report on
human rights in the Arab world in 2012 (Cairo: Cairo Institute for Human Rights
Studies, 2013).
29 e Arab Spring also had a resounding impact, both positive and negative, on human
rights organizations in the region, an analysis of whi, and its lessons for the future,
would require an entire book. A great many organizations have disappeared altogether,
while others continue to exist only on paper, with no real impact. A third set have been
reconstituted since the Arab Spring as mouthpieces for a particular government, sect,
political faction, or even militia. Only a very small number have managed to withstand
the allenges and major questions of this new era. In Syria, an entirely new generation
of rights organizations emerged from the uprising, some of whi have risen in a short
span to the major allenges and tragedies facing rights activists in the region. Egypt
offers a different example. Many rights groups only very belatedly realized the nature of
the massive, rapid anges underway aer the uprising, whi has had negative, though
variable, ramifications for their performance, their public position, and subsequently
their continued existence. By the time some of them were on the verge of
comprehending the true objectives of the SCAF, the Muslim Brotherhood candidate had
been elected president, and then before they woke to the nature of Brotherhood
‘democracy,’ the military had removed the elected president. It took some time before
many organizations realized the catastrophic directions in whi the new regime was
moving.
1164
35
Human Rights, Law and Politics
A reflection on human rights work in the
Middle East and North Africa
Lynn Welchman
1165
Introduction
As the editor of this collection has observed, taken separately,
‘human rights’ and the ‘Middle East’ are rarely out of the headlines,
and both topics have an exponentially growing solarship to mat.
Taken together, ‘human rights and the Middle East’ frequently figure
as uneasy partners, a dissonant coupling, in light of the many
allenges that appear to defy their integration. Accepting that there
are allenges is not admiing that they are insurmountable,
whether we are talking about the meanings of human rights, the
tenacity of the politically, socially and economically powerful, the
selectivity of the human rights agenda of powerful Western states, or
the substance of the academic critique of the ‘human rights project.’
e region is still full of people who act on human rights—imagine!—
despite admonishments that (politically, ideologically) this is not
properly their struggle, or not properly the form their struggle
should take. eir insistence on acting on human rights has inspired
me for decades and gives plenty of ground for reflection on how
local actors have taken up the practical and theoretical allenges of
human rights in the region.
In the spring of 2014, geing ready for my flight home from a
meeting in Tunis, I put the book I was going to read on the plane
down on the breakfast table I was sharing with some friends from
the Arab human rights movement. Its title caught their aention:
The Endtimes of Human Rights.1 “End times?” one exclaimed in
mo horror, “we’ve hardly had a ance to get started and it’s
already over?” e book’s author, Stephen Hopgood, was mildly
mortified when I related this to him shortly aerwards in the
corridor we share at SOAS, insisted that he was not criticising local
activists in this work and (less seriously) suggested I cover the book
1166
in brown paper for my next trip, assuming I would have still failed
to finish reading it by then. I think his point there was that he had
no wish to unsele that kind of human rights work, the ‘human
rights’ in small leers that he distinguishes from his Human Rights
as the hegemonic discourse of growing bureaucracies and power
bases.
Brown paper aside, it is clear that ‘human rights’ is under aa
not only politically, ideologically, legislatively, organizationally and
physically in different parts of the MENA region, but also from a
critical academic discourse that few in the movement have time to
engage with or respond to. e best reflection I have read to date in
this regard is by Christine Bell (2012), where she responds, as an
academic and a human rights activist with a local human rights
organization in Northern Ireland, to two critical pieces by David
Kennedy whi are focussed on the international human rights
movement (or “regime” in the second piece) but whi nonetheless
engaged Bell’s aention as speaking in various ways to/of/about her
own activist experience.2 e dilemmas (personal/political and
organizational) of human rights activism in a conflict situation are
finely drawn and Bell’s own trajectory towards and through the
critique and out again the other side engages with certain questions
that also allenged those involved in the Palestinian NGO human
rights movement, and indeed (although differently) those Israeli
human rights activists who work in the occupied Palestinian
territories.3 Other points resonate with the experiences of human
rights groups elsewhere in the Middle East and North Africa. I will
take (broadly) two of her areas of discussion for this reflection: firstly
human rights and law, and secondly human rights and politics.
1167
Human rights and law
“e law’s possibilities are oen sought out by those in struggle as
one of the few resources available,” Bell reminds us (or, perhaps,
Kennedy).4 In Palestine, certainly, that was the starting point of the
local human rights movement. Raja Shehadeh, one of the founders of
al-Haq, has wrien of his experience in returning home from law
studies in London and, as he sorted through stas of Israeli Military
Orders in his father’s Ramallah law offices, realisation dawning of
what actually was afoot as the occupation authorities sought to
structurally alienate Palestinians from their land and resources. Of
the three men who went on to found al-Haq, the first Palestinian
human rights organization, two were lawyers, and the organization
was set up as an affiliate of the International Commission of Jurists
(ICJ), with its key mandate vested in the judiciary and legal
profession.5 Shehadeh has wrien of the next steps, compiling
evidence on how the local law was being altered (ultimately all to
facilitate Israeli selement) to present at the United Nations in what
ended up as a marathon session, and then, with the encouragement
of the ICJ Secretary-General, turning the intervention into al-Haq’s
first publication, The West Bank and the Rule of Law.6 Lisa Hajjar
identifies this book as “set[ting] in motion a cycle of criticism and
rejoinder about the legality of Israeli rule” most immediately
exemplified by the response published by the Israeli National Section
of the ICJ.7 From the beginning of al-Haq’s work then, it was clear
that the Israeli legal establishment would respond vigorously to
Palestinian aempts to establish a narrative of the legal and human
rights situation in the occupied territories that differed from that of
the official Israeli narrative.
1168
Choosing the law’s possibilities was not an obvious path in this
struggle, the law with its association with power and the powerful,
the authorities who make it and enforce it, and in the case of
Palestine not only its colonial function under the British Mandate,
but Israel’s mu insisted upon commitment to the rule of law. In the
occupied Palestinian territories this presented more as rule by law,
with hundreds of military orders regulating and restricting almost
every aspect of public and economic life and ‘legalizing’ the
alienation of Palestinian land to further Israeli selement policy, and
—as in the case of the 1945 Defence Emergency Regulations, issued
originally by the British Mandate authorities—providing for
draconian punishments for Palestinians who resisted the occupier’s
agenda.8 And then again, the law, with its potential for
empowerment and protection against the powerful, particularly
when the powerful take the law seriously; or, at least, when they are
obliged to take it seriously.
At the same time, taking the law’s possibilities seriously presented
(and presents) different dilemmas to practising lawyers, those
oosing to take the courts as their site of struggle. In the West Bank,
at the time that al-Haq was established, a lawyers’ strike had been
ongoing since 1967 in protest at Israel’s transfer of the West Bank’s
Court of Appeal to Ramallah from Jerusalem, its annexation of East
Jerusalem and its non-compliance with the Fourth Geneva
Convention. Shehadeh explained that “[t]he general feeling among
the lawyers was that to appear before the newly organized courts
would give legitimacy to the annexation of Jerusalem, because the
Jordanian law specifically designates Jerusalem as the seat of the
Court of Appeal” as well as implying legitimization of “the other
anges carried out by the military authority” if the lawyers carried
on as normal.9 Striking lawyers did not practice in the military
courts whi had an ever-widening jurisdiction nor in the regular
court system now under the control of the Israeli occupation
authorities. Practicing (working) lawyers were expelled from the
1169
Jordanian Bar Association or else not allowed to join when they
qualified. In the early 1980s, Bisharat estimates that some 60 percent
of the profession were striking in the West Bank.10 He observes as
follows:
In the minds of local practitioners, these laws are a reflection of the very power of the
military legal system, whi is not to dispense justice, but to further the policy goals of
suppressing Palestinian nationalism and facilitating Israeli selement of the West Bank.
In this view, the underlying objective of the military courts is less to affix guilt to
specific individuals for violations of security regulations than to exact a steady toll from
the community in general for acts of resistance, in the hope that pressure will develop
within the community itself for the disciplining of its members.11
For those Palestinian lawyers who went ba to practice, or took it
up aer qualification, the decision to practice was clearly not one
that was taken ‘forever.’ Shehadeh’s journal from the early 1980s
records near despair at the daily routine of the military courts, and a
la of conviction in the face of a striking lawyer telling him “All of
you lawyers who work here are collaborators. Every move you make
is used to consolidate the Israeli occupation.”12 Elsewhere, reflecting
on arguing appeals against land confiscation orders to the Military
Objections Commiee, he wrote (in 1980) that “I do ingenious tris
to save a dunum here and a dunum there. I go in my sumud,
prostituting my legal profession, myself, losing the land before my
eyes.”13
In the absence of Palestinian lawyers to defend detainees brought
before the Israeli military court system, Israeli lawyers had been
authorized to appear in the West Bank, and Lisa Hajjar identifies the
start of the local human rights movement as when “[p]olitically
motivated Palestinian and Israeli lawyers used the legal terrain as a
site of resistance,” working in the military court system and
increasingly adopting a “human rights approa in their work.”14 In
particular, Hajjar identifies Israeli lawyer Felicia Langer as a
“catalysing agent” here; Langer was to abandon her practice in
defense of Palestinians in 1990, due to her “fear that legitimation
1170
costs had exceeded the benefits of continued legal practice during
the intifada.”15 Bisharat frames as follows the dilemmas that faced
West Bank lawyers of pre-Oslo times:
Should they accept invitation into the courts of the occupying power, to defend clients
and press their claims? Or would they in doing so validate Israelis’ assertion that theirs
was a ‘benign occupation’ and so sap urgency from calls to end the occupation? [ … ]
Has their advocacy ultimately legitimated the occupation or contributed to its
prolongation?16
As well as the question of ‘legitimation,’ Bisharat wonders whether
the activities of working lawyers on behalf of their clients “may have
helped annel anger and resentment against the military
government into relatively harmless forms.”17 is kind of concern
has some resonance today—that lawyering, human rights work and
generally the boom in ‘civil society’ activities and donor
involvement in the area has worked to ‘tame’ the Palestinians, to
‘draw the teeth’ of the resistance. Ultimately, Bisharat finds that “on
balance, Palestinians’ election to seek representation in Israeli courts,
and lawyers’ oice to assist them, has been justified”18—and that
one of the contributions was in helping build a Palestinian human
rights movement. But the argument about legitimation does
continue: the issue of appealing to the Israeli Supreme Court—acting
as High Court of Justice—against particular acts of the military
authorities was a focus from early on19 and despite the more general
acceptance of recourse to the Court in later years, it remains the case
that the Court’s record has been at the very least mixed and overall
hardly encouraging. Writing in 2005, prominent Israeli human rights
lawyer Miael Sfard reminds his readers that among other things
the Court has refused to rule on the legality of Israel’s selement
policy, and it has also not decided whether the Fourth Geneva
Convention applies.20 Sfard addresses the “existential dilemma of the
human rights lawyer” with his question: “From the perspective of
human rights and of those who seek a quick end to the occupation,
1171
was (and is) the justiciability of the occupation a positive
development?”21 Strikingly in the opening abstract of his review of
David Kretzmer’s solarly analysis of the Supreme Court’s record,
Sfard wonders (talking about himself inter alia) whether “one
possible moral lesson” of the content is “that whi portrays human
rights lawyers as the (naïve) supreme collaborators of the Israeli
occupation.”22
Elsewhere in the region, lawyers have made different oices
about how and when to engage with and withdraw from the
national legal system. In Yemen under former president Ali Abdullah
Salih, human rights lawyers declined to represent clients in the
Special Penal Court or its appeal court, on the grounds that the
establishment of the court was unconstitutional. And in Tunisia,
objections were made to the use made of the regular criminal justice
system under former president Ben Ali, and the conduct of
particular criminal trials. Van Hullen notes the extensive use made
of the Tunisian police and security services by the executive but also
the systematic use of legislation and prosecution as a “more
elaborate means of repression,” rendered “even more effective”
through an “authoritarian interpretation of the ‘rule of law’.”23
Human rights lawyers and political dissidents used the courtroom as
a site of resistance, as one forum in whi the government’s official
pro-human rights discourse might be allenged and exposed. e
official narrative wass exceedingly tightly controlled; and a
significant part of that narrative revolved around human rights and
the law. One of many examples comes from 1994, when the Geneva-
based International Commission of Jurists (ICJ)/Centre for the
Independence of the Judiciary and Lawyers (CIJL) denounced the
Tunisian government “for having intimidated Tunisian judges who
took part in a seminar on judicial reform,” accusing the government
of having forced judges to withdraw their names from the final
document of the two-week programme, whi set out guidelines for
judicial reform in Tunisia, and to sign a leer annexing a different
1172
version. According to the ICJ/CIJL, when the organization contacted
some participants for clarification, “the judges confirmed they had
signed the leer under pressure, adding that they had never even
seen the new document intended to replace the original” (ICJ
Newsletter, 1994).24 e same year, the U.N. Human Rights
Commiee expressed particular concern at the issue of the
independence of the judiciary in Tunisia and at “the reports on
harassment of lawyers who have represented clients accused of
having commied political offences.”25
Members of the Ligue Tunisienne des Droits de l`Homme (LTDH)
were among those prosecuted during those years. en Vice-
President, Khémais Ksila, was arrested in 1998 a maer of hours
aer issuing a wrien Declaration to Public Opinion in whi he
announced a hunger strike in protest at “an oppression on the part of
the powers that be whi has exceeded the limits,” detailing a series
of specific incidents and measures to whi he and his family had
been subjected over the previous few years. e prosecution
aracted wide condemnation from the human rights community
locally, regionally and internationally, focussing on the right to
freedom of expression, and Ksila’s trial was aended by a number of
international trial observers along with representatives of the foreign
diplomatic corps stationed in Tunis, and some 40–50 lawyers signed
on as co-counsel for the defense.26 He was found guilty as arged
and sentenced to three years imprisonment on the arge of
‘defamation of the public order,’ a year for spreading false
information and a year for inciting citizens to break the law, the
sentences to run concurrently, together with a fine.27 e sentence
was upheld on appeal, where Ksila made a vigorous intervention on
his own behalf and his lawyers made ‘powerful pleadings’ before an
unsympathetic court. is reads as the courtroom as the locus of
articulation of an alternative narrative about the conduct of the
Tunisian authorities in the face of silence on the part of other
1173
domestic public forums (su as the media), and the absence of
avenues of redress.
e following year, the Tunisian authorities prosecuted the
woman whom international human rights organizations called
“Tunisia’s most outspoken human rights lawyer,” Radhia Nasraoui,
on “trumped up arges”28 in a case that involved twenty-one
defendants accused on accounts of “maintaining an association that
incites hatred, defaming public authorities and judicial authorities,
distributing leaflets and spreading false information capable of
disturbing public order, inciting the public to violate the country’s
laws, and hosting, or participating in unauthorized meetings.”29 All
the defendants were convicted and given prison sentences;
Nasraoui’s was suspended. Over a hundred lawyers signed on as co-
counsels in Nasraoui’s defense;30 it is hard to convey the sheer
physical intensity of the moment when the lawyers press to the bar
at the court’s call for counsels for the defense to be named, a
moment of enormous impact, a moment of high drama and physical
solidarity. And again the courtroom was the site of extraordinary
interventions, culminating at dawn on the last day of the trial at first
instance (the trial having continued through the night) with heated
exanges and the withdrawal en masse of lawyers for the defense
in protest at the conduct of the presiding judge.31 is is protest—and
resistance—as most vivid performance on the stage of the
courtroom.32
us alongside the Tunisian authorities’ repression of its
independent human rights community there built up, among other
acts and sites of resistance, a human rights practice of courtroom
contestation and insistence on the meaning of the law.33 is did not
mean that other ways of ‘doing’ human rights were neglected. In
2015, the Tunisian National Dialogue artet was awarded the
Nobel Peace Prize for its efforts in the face of threats to the post-
revolutionary political democratization process. e LTDH was one
of the four civil society organizations that since 2013 had made up
1174
the artet; the Nobel Commiee described the artet as
“instrumental” in helping Tunisia “to establish a constitutional
system of government guaranteeing fundamental rights for the
entire population, irrespective of gender, political conviction or
religious belief.”34 e interest in and commitment to political
pluralism and democracy on the part of Tunisian activists was
shared also by human rights activists elsewhere in North Africa;
Waltz notes that while calls for democratization were not explicitly
made, defense by human rights organizations of the rights to
freedom of expression, assembly and association were critical to the
defense of political pluralism.35 In April 2011, a small human rights
foundation working with human rights defenders in the MENA
region convened high profile actors from the region in one of the
first discussion seminars on what was then being called the ‘Arab
Spring,’ under a title that spoke as mu to democratization per se as
to the human rights that democracy entails or requires.36
1175
Human rights and politics
e founders of al-Haq did not work on enabling political pluralism
or on the promotion of democracy, although they insisted on their
vision of ‘rule of law’ entailing internal processes of inclusion and
equality in Palestinian society. In terms of public rights and
freedoms, the circumstances of occupation (and the framework of
international humanitarian law) framed priorities differently. Nor on
a personal level were the three men who ended up as LSM/al-Haq’s
founders in 1979 themselves political activists, leists disenanted
with the prospects for ange in the political system, as were many
of their counterparts elsewhere in the region.37 It was not until Oslo
and the arrival of the Palestinian Authority that al-Haq was advised,
by Jose Zalaque, a well known and highly respected Chilean
human rights lawyer, that it might need to make a “certain
declaration of principles about the connection between human rights
and democracy”38 were the organization to decide in the future to
take on issues su as fair elections as human rights issues.
But across the region, human rights groups had various allenges
in common. Considerations of tone, focus, and form of address were
by no means dissimilar, and balances had to be weighed in trying to
ensure organizational survival in hostile political circumstances. e
founders of the politically independent human rights groups in
North Africa were as keen as those of al-Haq to be and be seen to be
non-partisan in their human rights work, even if many had previous
or ongoing political commitments to particular parties; unlike the al-
Haq founders, they oen worked directly to create a consensus of
space for human rights work among the different parties, sometimes
by having representatives of the parties in their governing structures.
e groups in Tunisia and Morocco also had to deal explicitly with
1176
the relationship between Islam and international human rights, and
the role that Islamists might play in their organizations, whi was
not at the time an issue for the nascent Palestinian group. Like al-
Haq, on the other hand, they found the context for human rights
work to be uncomfortable: “the concept of human rights, it must be
noted, was far from fashionable at the time” says Waltz in relation to
Tunisia, continuing that leists who also constituted the majority of
the intelligentsia and would be considered a natural constituency for
the human rights movement “commonly dismissed human rights as
a bourgeois notion and dangerously American.”39 In Egypt, a
founder of the Egyptian Organization for Human Rights, Hani
Shukrallah, recalls that the human rights movement “was really an
outsider. e existence of the movement was put in question not just
by the government but by the intellectual and political elites,
including the political parties, legal and illegal.”40 Talking of the
reaction to the establishment of the Arab Organization for Human
Rights, Crystal notes that besides the regimes and the Islamists, “the
Arab nationalist le was also historically suspicious of the group’s
aims, seeing human rights as an issue of Western origin designed to
deflect concern from economic and social issues.”41
Another allenge in common was organizational structure. Al-
Haq was not, fundamentally, a ‘membership organization’ in the
manner of, notably, the LTDH, or—to different extents—other Arab
human rights organizations that followed within a few years. e al-
Haq founders were keen to maintain the influence of the core group
of founding members and preoccupied by a need to prevent
“partisan take-over aempts.” Elsewhere in the region, the new
human rights groups were faced with similar concerns, and
recruitment mostly proceeded at first through personal contacts.
Waltz describes the LTDH as having begun “as an experiment
closely governed by a fairly intimate band of professionals who
shared a common vision of justice” whi had a membership of
around a thousand in 1982, tripling by 1985. Despite a measure of
1177
control through membership requiring, at this time, a
recommendation from an existing active member, the central
leadership became “wary of the loss of control implied by
precipitous expansion” and responded by beginning the process of
debate on a Charter that would set out the position of the LTDH on
a set of human rights, based on the UDHR, to whi members would
have to commit. Action was also taken against local branes judged
to be presenting a party political risk, whether from leist groups or
from the government party.42 In his 1991 book, Kevin Dwyer
presents the reflections of two leading LTDH activists on these
allenges, and similarly the comments of one of the founders of the
AMDH to the effect that the young Moroccan Association also had
to find a way to control the membership: “we couldn’t let everyone
join who wanted to. To remain in control of the work you had to
have a prey tight structure.”43 Different groups had different ways
of seeking to involve a range of political parties while avoiding
jeopardising organizational independence and the integrity of the
work. Hanny Megally names the LTDH and the EOHR as “two
unusual examples of organisations that have aempted to develop
along membership lines,” paying tribute to their early successes in
membership development while noting that by the early twenty-first
century there had been a decline in membership: “in both cases
internal political disputes and restrictive government action have not
helped.”44 For its part, al-Haq’s initial group of three founders, rather
than seeking to draw in a range of political actors in support of the
organization’s activities, sought to create among its staff (frequently
referred to as ‘members’ in organizational literature) a cadre of
human rights activists recruited from different social and
geographical sectors, many if not most of them politically
commied, asking them to leave their politics ‘at the door.’ e
meaning here, clearly, was factional or party politics: most al-Haq
workers from those early days would now agree that of course, in
important ways, human rights is political—something that was
1178
vigorously denied in the early days both to avoid the aention of the
Israeli authorities and to get beyond or outside of the party political
frame. Here we can look again to Bell, who considers that for the
Commiee on the Administration of Justice, “the commitment to
international standards was driven more by the need for a political
placing of human rights auned to local context, than a naïve belief
in these standards per se”—it was, she tells us, “a project to create
political space.”45 And for her own part, “human rights was one of
the few places in whi one could be politically active without
joining an organisation that had some sort of sectarian dimension [
… ].”46
1179
Conclusion
Post-Oslo, human rights and other ‘professionalized’ civil society
groups proliferated in Palestine, giving rise inter alia to concerns
about the de-politicisation of the public sphere and the impact of
donor agendas. is more or less fits the more general critique of
international human rights—as Bell aracterizes Kennedy, “the
arge that human rights is stultifying the political sphere.”47 One
solar has already wrien of the “rise and fall of human rights” in
Palestine.48 is might take us ba to the ‘end times’ moment where
I started, were it not for the fact that across the region, I do not hear
a ‘triumphalist narrative’ on human rights. e human rights
activists in the Middle East and North Africa with whom it has been
(and remains) my privilege to work are extremely reflective, and are
deeply commied to their own countries and cultures and ways of
being. ey act on human rights in the daily grind as well as in the
bigger picture. ey are of course deeply engaged—perhaps
entangled—with ‘the West,’ notably with human rights fora and
organizations based in Western Europe and the United States, but
insistently as peers, by no means suborned. ose relationships are
complex and at least two-way, and there is a real gap in solarship
on the impact of local human rights organizations in the Middle East
and North Africa on their partners in the international movement, as
well as the intensification of regional initiatives. Now, here is an
extremely interesting area of exploration for those who wish perhaps
to uncover a different kind of human rights story. e relationships
inevitably involve issues of power and of priorities, of substantive
meanings, the domestic understandings and transformations of
human rights values in specific contexts, the ongoing resonance of
colonial legacies, the complications of funding and of donor agendas,
1180
the demands of solidarity. Alliances are necessarily complex, but
they are certainly not unconsidered by those on the ground who
continue to find human rights relevant to their many and various
struggles. Solarship on some of these relationships might uncover
surprises for the international human rights movement and its critics
both. Christine Bell asks, towards the end of her piece, whether it is
“possible that the business of the academy is itself part of the
problem?”49 Perhaps one of the allenges is to inform solarship
on the human rights movement with the possibility of su surprise,
puing aside for that moment theoretical templates that suggest
human rights can be constructed only in certain limited ways.
1181
Notes
1 Stephen Hopgood, The Endtimes of Human Rights. Ithaca, NY: Cornell University Press,
2013.
2 Christine Bell, “Human rights and the struggle for ange: a study in self-critical legal
thought.” In Rob Diinson, Elena Katselli, Colin Murray and Ole W. Pederson, (eds),
Examining Critical Perspectives on Human Rights (Cambridge: CUP, 2012), 217–46.
David Kennedy, “e international human rights movement: part of the problem?”
Harvard Human Rights Journal vol. 15 (2002), 101–25; David Kennedy, “e
international human rights regime: still part of the problem?” in Diinson et al., (eds),
(2012) 19–34. Bell worked for the Commiee on the Administration of Justice (CAJ).
3 A comparison has been made between the context of human rights work that allenged
the CAJ and B`Tselem (an Israeli NGO working in human rights in the occupied
Palestinian territories): see Eitan Felner, “Human rights leaders in conflict situations: a
case study of the politics of ‘moral entrepreneurs.’” Journal of Human Rights Practice
vol. 1 no.4 (2012), 57–81. Compare also Joe Stork’s consideration of the debate on the
use of international humanitarian law by human rights groups in south eastern Turkey
as the internal armed conflict grew: Stork, “ree decades of human rights activism in
the Middle East and North Africa. An ambiguous balance sheet.” In Joel Beinin and
Frédéric Vairel (eds), Social movements, mobilization, and contestation in the Middle
East and North Africa (Stanford: Stanford University Press, 2011), 83–106.
4 Bell (2012), p. 246.
5 Other members of the Palestinian legal profession in the West Bank were involved at
first in discussions and approaes to the ICJ, but it was only the three who eventually
founded the organization.
6 Special Commiee to Investigate Israeli Practices affecting the human rights of the
population of the Occupied Territories, established by G.A. Res. 2443 (XXIII) 1748th
Plenary Meeting, 19th December 1968. Raja Shehadeh and Jonathan Kuab, The West
Bank and the Rule of Law (ICJ and LSM, 1980). Shehadeh, The Third Way. A Journal of
1182
Life in the West Bank, London: artet Books, 1982, p. 52; Shehadeh, “Human rights
and the Israeli Occupation.” 8/1 CR: The New Centennial Review (2008), 33–55, at p. 38.
7 Lisa Hajjar, “Human rights in Israel/Palestine: the history and politics of a movement.”
Journal of Palestine Studies vol. 30, no. 4 (2001), 21–38 at p. 25. Israeli National Section
of the ICJ, The Rule of Law in the Areas Administered by Israel, Tel Aviv: Israeli
National Section of the ICJ, 1981.
8 Distrust of the law of Israel as a seler-colonial state remains also among Palestinians
from “inside” Israel; hip hop phenomenon DAM, in the song “Who’s a terrorist?”, raps
as follows: “You’ve taken everything I own while I’m living in my homeland. You want
me to go to the law? You’re the witness, the lawyer and the judge … ” Sunaina Maira
and Magid Shihade, “Hip Hop from ’48 Palestine. Youth, music, and the present/absent.”
Social Text vol. 30, no. 3 (2012), 1–26 at p. 13.
9 Shehadeh and Kuab (1980) p. 46. e apter on ‘e Legal Profession’ focuses entirely
on the strike.
10 ere was no strike by lawyers in the Gaza Strip, where the separate system
administered previous under Egypt’s control had been unaffected by the anges to the
judicial system in the West Bank. Bisharat (1995) reports that Gazan lawyers told him
that “it simply never occurred to them to strike like their West Bank counterparts”
Bisharat, “Courting justice? Legitimation in lawyering under Israeli Occupation.” Law
and Social Enquiry vol. 20, no. 2 (1995), 349–405, at note 55, p. 362.
11 George Bisharat, Palestinian Lawyers and Israeli Rule. Law and Disorder in the West
Bank, Austin: University of Texas Press, 1989, p. 138.
12 Raja Shehadeh, The Third Way. A Journal of Life in the West Bank, London: artet
Books, 1982, p. 118.
13 Shehadeh (1982), p. 124–5.
14 Hajjar (2001) p. 24.
15 Bisharat (1995) p. 359.
16 Bisharat (1995) p. 349.
17 Bisharat (1995) p. 397.
1183
18 Bisharat (1995) p. 350.
19 Bisharat (1995) p. 395; Joost Hiltermann, Israel’s Deportation Policy in the Occupied West
Bank and Gaza, Ramallah: Al-Haq/LSM, 1986, pp. 58–9. Shehadeh, 1982, p. 101.
20 Miael Sfard, “e human rights lawyer’s existential dilemma,” Israel Law Review vol.
38, no. 3 (2005), 154; at p. 162, and p. 158. e article is a review of David Kretzmer, The
Occupation of Justice. The Supreme Court of Israel and the Occupied Territories, New
York: SUNY Press, 2002.
21 Sfard (2005) p. 156. Emphasis in the original.
22 Sfard (2005) p. 154.
23 Vera Van Hullen, “e ‘Arab Spring’ and the spiral model: Tunisia and Morocco,” pp. 182
–199 in omas Risse, Stephen C. Ropp, and Kathryn Sikkink, (eds), The Persistent
Power of Human Rights. From Commitment to Compliance, Cambridge: CUP, 2013, at p.
193 and p. 197.
24 ICJ Newsletter 1994, “Tunisia: Aa on the Independence of the Judiciary,” ICJ:
Newsleer no. 60.
25 U.N. Doc. M/CCPR/52/COM/TUN 3 D.7. See FIDH (1998), “Une Détention
Manifestement Arbitraire: Rapport d’Observation Judiciare au Procès de Khémais Ksila,”
La Lettre Hebdomadaire de la FIDH no., 756–8, 30 July–13 August 1998, pp. 16–26. See
generally Lynn Welman “Trying times in Tunis. Notes from an impartial observer,”
pp. 177–97 in Baudouin Dupret, Barbara Drieskens and Annelies Moors, (eds),
Narratives of Truth in Islamic Law, London: I.B.Tauris, 2008. I aended sessions of the
trials discussed here on behalf of international human rights organizations, and was
main draer of the subsequent trial observation reports.
26 FIDH (1998) p. 20.
27 Court of first instance in Tunis, Ruling in case no. 697/67846 of 11 February 1998.
According to Articles 44, 49, 51 and 50 of the Press Code. See FIDH, 1998. Khémais Ksila
was conditionally released in 1999. Comité pour le Respect des Libertés et des Droits de
l`Homme en Tunisie (1999), Communiqué, 22 September 1999.
28 See Human Rights Wat, Amnesty International, and the Observatory for the
Protection of Human Rights Defenders (2000), “e administration of justice in Tunisia:
1184
torture, trumped-up arges and a tainted trial.”
29 Human Rights Wat et al. (2000) p. 2. See pp. 25–6 for details of arges against
individual defendants.
30 Human Rights Wat et al. (2000) p. 13.
31 Human Rights Wat et al. (2000) p. 20.
32 Sfard (2005), p. 155 similarly presents the Israeli Supreme Court as having been the stage
for a “decades-long legal drama” played out by four sets of actors.
33 e international human rights community increasingly also sent observers to key trials
—su as those of Ksila and Nasraoui—as did certain third party states, represented by
their diplomatic personnel and thereby signalling their concern and—one can argue
certainly—their support for the defendants, although not their willingness to take
meaningful sanctions against Ben Ali’s Tunisia as a consequence. See Van Hullen (2013)
pp. 190–1.
34 See: www.nobelprize.org/nobel_prizes/peace/laureates/2015/announcement.html (last
accessed December 21, 2015). e other organizations were the UGTT (General Union of
Tunisian Workers), the Confederation of Industry, Trade and Handcras; and the
Tunisian Order of Lawyers (ordre national des avocats de Tunisie).
35 Susan E. Waltz, Human Rights and Reform. Changing the Face of North African Politics,
Berkeley and Los Angeles: University of California Press, 1995, p. 220.
36 Euro-Mediterranean Foundation for the Support of Human Rights Defenders,
Democratic Change in the Arab Region: State Policy and the Dynamics of Civil Society.
Discussion seminar, Brussels, April 2–3, 2011. I am a board member of EMHRF. Report
available at www.emhrf.org/en/documents/EnglishLR.pdf (last accessed September 3,
2016).
37 Hanny Megally, “Human rights in the Arab World: reflections on the allenges facing
human rights activism,” pp. 107–13 in Anthony Chase and Amr Hamzawy, (eds),
Human Rights in the Arab World. Independent Voices, (Philadelphia, PA: University of
Pennsylvania Press, 2006) at p. 107.
38 José Zalaque, “Evaluation of al-Haq’s programs, strategy and work,” February 1994, p.
18. is paper was available on al-Haq’s website for many years but at the time of
1185
writing (December 2015) no longer seems to be posted.
39 Waltz (1995), p. 135.
40 Hani Shukrallah quoted in Stork (2011) p. 91. See similarly Megally (2006) p. 108.
41 Crystal, (1994) p. 449.
42 Waltz, (1995) p. 138, 165. She notes (p. 33) that the human rights groups in the Maghreb
were criticized for not seeking a mass membership but rather restricting recruitment
mostly to the professional classes.
43 Dwyer (1991) pp. 167–70, interviews with Khémais Chammari and Muhammad Charfi;
and pp. 162–4 with Abderrahim Jamai. See Stork (2011), p. 93 on similar allenges in
the EOHR peaking in 1994, and p. 97 on the “competition of the leist parties for
hegemony over the organizations” in Morocco. See Crystal (1994) p. 449 on the AOHR
and its Egyptian section. New resear would need to consider the situation following
the overthrow of Presidents Ben Ali and Mubarak in 2011 and subsequent anges in
government.
44 Megally (2006) p. 295 n. 2.
45 Bell (2012) p. 227.
46 Bell (2012) p. 229.
47 Bell (2012) p. 242.
48 Lori Allen, The Rise and Fall of Human Rights. Cynicism and Politics in Occupied
Palestine, Stanford: Stanford University Press, 2013.
49 Bell (2012) p. 245.
1186
Selected Bibliography
Barghouti, Mourid. I Saw Ramallah. Translated by Ahdaf Soueif,
with a foreword by Edward Said. New York: Anor Books, 2003.
Bell, Christine. “Human rights and the struggle for ange: a study
in self-critical legal thought” in Diinson, Katselli, Murray and
Pederson, eds, Examining Critical Perspectives on Human Rights.
Cambridge: CUP, 2012: 217–46.
Bisharat, George. “Courting justice? Legitimation in lawyering under
Israeli Occupation.” Law and Social Enquiry vol. 20, no. 2 (1995),
349–405.
Chase, Anthony Tirado. Human Rights, Revolution and Reform in
the Muslim World. Boulder and London: Lynne Rienner
Publishers, 2012.
Hajjar, Lisa. “Human rights in Israel/Palestine: e history and
politics of a movement.” Journal of Palestine Studies vol. 30, no. 4
(2001), 21–38.
Kanafani, Ghassan. Rijal fi al-shams (Men in the Sun). Akka: Dar al-
Aswar Publications, second printing 1980 [first printing 1963].
Al-Haq. A Nation Under Siege. Ramallah: al-Haq, 1990.
Rabbani, Mouin. “Palestinian human rights activism under Israeli
Occupation: e case of al-Haq.” Arab Studies Quarterly vol. 16,
no. 2 (1994), 27–53.
Sabreen. Smoke of the Volcanoes (Dukhan al-Barakin) (audio
cassee) 1982.
Shehadeh, Raja and Kuab, Jonathan. The West Bank and the Rule of
Law. ICJ and LSM, 1980.
Shehadeh, Raja, Palestinian Walks. Notes on a Vanishing Landscape.
London: Profile Books Ltd, 2007.
1187
Soueif, Ahdaf. Cairo. My City, Our Revolution. London: Bloomsbury
Publishing, 2012.
1188
Index
Page numbers in italics refer to tables.
Page numbers in bold refer to the apters of the contributors for
this book.
9/11 aas 399, 469, 495 Abdul Aziz, King of Saudi Arabia 256
Abdullah bin Abdulaziz, King of Saudi Arabia 32, 261
abortion 236–7, 241
Abou El Fadl, Khaled xii, 12, 92, 94, 96, 268–86
Abouzeid, Rania 90
Abu Seada, Hafez 162, 163–4, 168
Abul Ala Maududi, Sayyid 257
Abul Naga, Fayza 164
Aour, Loi 64
Adel, Mohamed 189
Afghanistan 78
Afnan, Bedia 41, 374
Agamben, Giorgio 434
Ahmad, Eqbal 85
Ahmadinejad, Mahmoud 28, 231, 233
Akbaba, Yasemin 318
Akehurst, Miael 293
AKP (Justice and Development Party) (Turkey) 104–13
al-Ashmawi, Muhammed S. 291
al-Ateeqi, Mohsen 65
1189
al-Ayini (Hanafi jurist) 278
Al-Azhar mosque 262
al-Azm, S. J. 295
Azmi, Mahmoud 41
al-Haq 503, 506–7, 508
al-Hawija massacre (2013) 87
al-Jabri, Mohammed 297
al-Jazeera 56, 175, 176, 191, 259
al-Kalbani, Adil 95
al-Khalifa family (Bahrain) 32
al-Maliki, Nouri/Nuri 79, 87, 320
‘al-Nakbah’ 130
al-Qaeda 78, 90
al-Qaeda in Iraq (AQI) 79, 88, 320
al-Saadawi, Nawal 264
al-Sayed, Jamil 355
al-awra al-Arabiyya revolt 256
al-Wahhab, Muhammad bin ‘Abd 92
al-Zarqawi, Abu Musab 88, 320
al-Zawahiri, Ayman 90
Alareer, Refaat 129
Alawi sect 30, 31, 87
Alevis 110, 113
Alexandria Reform Declaration (2004) 475
Alfredson, Lisa S. xii, 17, 444–61
Algeria:
education 185;
human rights treaties 42;
NGOs 161, 165;
political legitimacy 28;
religious freedom 319;
transitional justice 333
1190
Alinejad, Masih 124
Alkarama (Swiss NGO) 161, 165
Allon Plan (1967) 135
Amar, Ali 379
Amnesty International 89, 91, 95, 145, 146, 402, 419, 435
Amnesty Law (Lebanon 1991) 351
Amsterdam Treaty (1997) 455
An-Naim, Abdullahi 291, 294, 295, 298, 307, 446
Anderson, Lisa 27–8, 31
Anouzla, Ali 379
Ansar al-Shari`ah 32
April 6 Youth Movement 189, 260, 476
Arab Barometer (AB) surveys 34
Arab Charter on Human Rights 464
Arab Commission for Human Rights (ACHR) 161
Arab Development Report (2009) 258
Arab Human Rights Organization 463
Arab Institute for Human Rights 467
Arab Organization for Human Rights 289, 507
Arab Spring 26, 90–2, 110, 255, 492–9, 501
Arab–Israeli war (1948) 130
Arab–Israeli war (1967) (‘Six Day War’) 131
Arabian Knightz 62
Arafat, Yasser 144, 426
Arat, Zehra F. Kabasakal xii, 40–51, 107
Ardabili, Mousavi 120–1
Arendt, Hannah 421, 422
Armenian genocide 74–5
Armstrong, Karen 96
Assad, Bashar 30, 65, 87, 258, 493, 494, 497
Assad, Hafez 31, 77, 494
1191
Assad family/regime (Syria) 30–1, 72, 79, 85–9, 317, 320, 335
Association for Human Rights and the Oppressed 105–6
Association of South East Asian Nations (ASEAN) 293
Astana Council of Foreign Ministers 309
Astell, Mary 262
Atlantic Charter (1941) 389
Awad, Alaa 66
Awas Tingni community 415
Ayeb, Habib 37
Ayoub, Phillip M. 455
Ayou, Nabil 379
Ayyash, Salim Jamil 355
Azar, Raymond 355
Azari, Hajar 408
Azdamar, Ozgur 318
Azkoul, Karim 41
Azhar theological seminary 268
Azmi, Mahmoud 41
Azzam, Fateh xii, 18, 463–73
Baderin, Mashood 307, 308
Badreddine, Mustafa Amine 355
Baccar, Jalila 67
Baghdadi, Abu Bakr al 320
Baha`is 321
Bahrain:
freedom of expression 65;
human rights treaties 42;
labor organizations 260;
political legitimacy 32, 36;
religious freedom 319;
transitional justice 334, 336, 340;
women 245, 247–8, 261
1192
Bahrain Independent Commission of Inquiry (BICI) 334, 336, 340
Bahrain National Plan for the Advancement of Bahraini Women 247
Balfour Agreement 130
Ban Ki-moon 89
Banai, Hussein xii, 6, 16, 20, 26–38
Bangladesh 393, 411
Bani Adam doctrine 431
Bani Mostafa, Wafa 249
Barak, Ehud 131, 144
Baroody, Jamil 41
Baxi, Upendra 407
Bayat, Asef 125
BBC Persian 123
Begin, Menaem 135, 143
Belaid, Chokri 368
Belgium 94, 393
Bell, Christine 502–3, 508, 509
Bellemare, Daniel 355
Ben Ali, Zine El Abidine 28–9, 184, 187, 188, 339, 476, 477
Ben-Gurion, David 424
Benam, Cigdem 203
Benne, Sue 376
Bensedrine, Sihem 342
Benvenisti, Eyal 132
Bhargava, Rajeev 331
Bielefeldt, Heiner 310
Bin Laden, Osama 88, 400
biopower 224–5
Bisharat, George 504–5, 509
Bloxham, Donald 74, 75, 80
Bob, Clifford 157, 160, 161
1193
Bodin, Jean 391
Boraine, Alexander L. 332
Boston Marathon Bombing (2013) 94
Bouazizi, Mohammad 29, 35, 42, 61, 184, 191, 260
Boyco, Divestment and Sanctions (BDS) movement 471–2
Brahmi, Mohamed 368
Brazil 394
Bread From Stones (Keith Watenpaugh) 433
Breivik, Anders 178, 179
Brookings Institution 96
Brundtland, Gro Harlem 179
Brysk, Alison xii, 17, 431–43
B`Tselem (Israeli human rights organization) 135, 147, 509
Bull, Hedley 293
Bush, George H.W. 143
Bush administration (2001–9) 78, 149, 399, 475
Cairo Declaration on Human Rights in Islam (1990) 170, 172, 175, 179, 258, 304, 306–7, 310,
311–12, 464
Cairo Institute for Human Rights Studies 467
Cairo International Conference on Population and Development (ICPD) (1994) 231, 236, 238
Cameron, David 84
Camme, Melani 32
Camp David Agreement (1978) 143
Camp David negotiations (2000) 131, 144
Canada 451–3
Carter, Jimmy 143
cartoons 66; see alsoDanish cartoons
Cassin, Rene 389
Cavanaugh, Kathleen xii, 8–9, 129–41
censorship 56–8, 67, 68, 172–4
Césaire, Aimé 422
Charaf, Wafaa 380
1194
Chase, Anthony Tirado xi, 3–23, 35, 307, 313, 456–7, 474
Chebbi, Abou el-Kasem 63
ild labor 45
China 89, 170, 177, 312, 396, 411, 414, 417
Chongqing, China 410–11
Churill, Winston 390
Cismas, Ioana 308
civil society 259–61
Clark, Janine Natalya 332
“clash of civilizations” 258, 297
Clinton, Bill 131, 143, 144
Clinton, Hillary 149
Clinton administration (1993–2001) 143–4, 148, 149
Cohen, Daniel 422
Cold War 75–7, 257
collectivist rights 279–80, 286, 296–9
Commiee on the Administration of Justice (CAJ) 508, 509
communication tenologies 182–5, 187–9
constitutions 243–9
constructivist resear 156–7
Convention on the Prevention and Punishment of the Crime of Genocide 420
Convention on the Rights of the Child (CRC) 207, 208, 209, 214
Convention Relating to the Status of Refugees (1951) 451
Coptic Christians 322, 324, 325
Covenant on Economic, Social, and Cultural Rights (ESC Covenant) 207, 208
cultural rights 53–67
Cyprus 77
Daesh seeIslamic State/Daesh
Dagestan 94
Dahlmann, Carl 80
Dallemagne, George 94
DAM (Palestinian-Israeli rap group) 62, 509
1195
Danish cartoons (2005) 174–6
Darwish, Mahmoud 64
Darwish, Siad 357
Dastgeib, Ali Mohammad 120
Davenport, Christian 137
de Feyter, Koen xiii, 16, 406–18
De la Dehesa, Rafael 455
de Sousa Santos, Boaventura 438, 440
de-Ba`athification 87, 334, 335
Deeb (Egyptian hiphop artist) 57
DeMars, William 157, 159
demographics 185–6
Dempsey, Martin 84
Derbas, Rashid 204
Dhaka 410, 412
Dieng, Adama 72, 315
Dilou, Samir 363
‘disputed territories’ 149
Diwan, Ishac 32
Djibouti: human rights treaties 42
Donnelly, Ja 419, 446, 447, 450
drones 470
Dugard, John 139
Dwyer, Kevin 508
East Jerusalem 135, 504
East Timor 333
Ebadi, Shirin 121
Eban, Abba 424
economic rights 40–8
education 46–7, 208–9
Egypt 474–86;
Arab Spring 495–7;
1196
ild labor 45;
civil society 259;
communication tenologies 182–3, 184, 185, 188–9;
constitution 262, 263, 478–9, 488;
corporate welfare 45;
demographics 185, 186;
education 185;
food security 45, 46;
freedom of expression 57, 58, 64, 65, 66;
genocide 79;
human rights conventions/treaties 41, 42, 256, 268;
labor organizations 260;
NGOs 159, 160, 161, 162–4, 260;
political legitimacy 29–30, 34;
radical Islamism 91;
religious freedom 319, 321–2, 323, 324;
transitional justice 334, 338, 339, 341;
unemployment 186
wages/income 44;
women 261, 264
Egyptian Organization for Human Rights (EOHR) 162–3, 164, 507, 508
Egyptian Trade Union Federation (EFTU) 260
Eimann, Adolf 423–4
El Baradei, Mohamed 184, 260
El Dagham, Hanaa 66
El Gantri, Rim xiii, 15, 360–71
El Général (Hamada Ben Amor) (Tunisian rapper) 61, 190–1, 259–60
El Haggar, Ali 68
El Haiba, Mahjoub 315
El Haqed (L7a9ed) (Moroccan rapper) 62, 63
El Saadwi, Nawal 262
Elias, Norbert 298
Elmahdy, Aliaa Magdy 65–6
1197
Endtimes of Human Rights (Stephen Hopgood) 302
Engels, Friedri 259, 261
Enlightenment 403
Ennahda movement (Tunisia) 30, 60, 497, 498
Ensour, Abdullah 212
Equity and Reconciliation Commission (Morocco) (ERC) 380
Erdogan (Turkish prime minister) 111, 112
Eshkol, Levi 135
Esmeir, Samera 421
Essam, Ramy 61, 62–3
Essebsi, Beji Caied 367, 368, 371
Eurocentrism 373–4
European Court of Human Rights 106, 396, 397, 456
European Court of Justice 396
European Holocaust 421–2
European Union (EU) 106, 110, 113
Fabian (migrant worker) 221–3, 224
family planning 230–9
Fanon, Frantz 422
Fathollah-Nejad, Ali 121
Femen protest group 439
Fisher, Kirsten J. 338
food security 45–6, 207
Forsythe, David P. xiii, 16–17, 389–404
Foucault, Miel 224, 431
Fourth Geneva Convention 133, 134, 139, 140, 143, 148, 151, 505
Frankfurt Sool 433
Freedom and Justice Party (Egypt) 29, 479, 481
Freedom House 26, 36, 111, 159
freedom of expression 53–67; see alsocensorship
freedom of movement 204–5
freedom of religion and belief seereligious freedom
1198
Friedman, omas 400
Frontiers-Ruwad Association 201
Ganzeer (Egyptian artist) 65
Gaza Strip 133, 135, 139, 145, 149, 509
Geagea, Samir 351
Geller, Pamela 178
gender persecution 451–3
General Bahrain Trade Union (GFBTU) 260
Geneva Conventions seeFourth Geneva Convention
genocide 72–80
Germany 394
Gezi Park protests (Turkey 2013) 54, 111–12
Ghadaffi, Muammar 31, 77, 335, 339
Ghadaffi, Saif al-Islam 31, 339
Ghaemi, Hadi 123
Ghannoui, Raed 91
Ghonim, Wael 184
Giddens, Anthony 289
Gishkori, Zahid 95
Glacier, Osire xiii, 15, 373–84
Glendon, Mary Ann 374
globalization 55–6
Golan Heights 149
Goldstone, Riard 142–3
Gomez, Felipe 415
Goodale, Mark 407, 436
Gordon, Neve xiii, 16–17, 419–29
government-organized NGOs (GONGOs) 158, 162
government-sympathetic NGOs (GSNGOs) 158–62, 166
graffiti 65–6
Gready, Paul 332, 412
Green, James N. 455
1199
Green Movement (Iran) 26, 28, 116–26, 185–6, 438
Gross, Aeyal 133
Guantanamo 470
Gulabi Gang (India) 436
Gülen movement (Turkey) 112
Guterres, António 87
Haass, Riard 84
Habermas, Jürgen 288–9, 296, 299
Haddad, Bassam 30
Hadi, Abd Rabbuh Mansur 32
Hafner-Burton, Emilie 391, 398
Hajj, Ali 355
Hajjar, Lisa 503, 504
Hama massacre (1982) 86
Hamad bin Isa Al Khalifa, King of Morocco 340
Hamas 142, 145, 146, 147, 148, 150
Hamdan, Mustafa 355
Hamid, Shadi 105
Hamill, Kathleen xiii, 10–11, 196–215
Hamzawy, Amr xiii, 18–19, 474–91
Hariri, Rafik 349, 350, 352
Hariri, Saad 353
Hart, H. L. A. 292
Hashemi, Nader xiii, 8, 83–102
Hassan, Bahey eldin xiii, 19, 492–501
Hassan II, King of Morocco 377, 379, 495
HDI metrics 36
health care 47, 207–8
Hebron 135
Hedayat, Bahar 121
Hellenism 297
Hinnebus, Raymond 30
1200
hip-hop culture 56, 61–2, 190–1
Hobeika, Elias 351
Holocaust seeEuropean Holocaust
Homo Sacer (Giorgio Agamben) 434
Hoodfar, Homa xiii, 11, 230–41
Hopgood, Stephen 391, 401, 435, 437, 502
Hosne, Oussama 380–1
Houthi movement (Yemen) 32
Hubbard, Mary 375–6
hudud punishments 273–6, 284
Human Development Report (2014) 44
Human Rights Association (Turkey) 105
Human Rights Foundation of Turkey 106
Human Rights Paradox (Sco Straus and Steve J. Stern) 437
Human Rights Wat 76, 85, 86, 89, 91, 109, 145, 147–8, 341, 402, 419, 437
“humanitarian intervention” 395
Humphrey, John 289
Huntington, Samuel 258, 297
Hussein, Saddam 76, 77, 78, 85, 335
Hussein bin Ali, Sharif 256
hybrid tribunals 353
Ibn al-`Arabi (Maliki jurist) 278
ibn `Ali, Husayn 130
Ibrahim, S. E. 290, 299
Ignatieff, Miael 35, 436
Ihsanoglu, Ekmeleddin 171, 174, 175–6, 178, 304
Independent (newspaper) 94
Independent Permanent Human Rights Commission (IPHRC) 304, 308–9, 310–1
Inter-American Court of Human Rights 397, 415
interdependency of rights 48–9
Internal Displacement Monitoring Center 87
internally displaced people (IDP) 47, 48
1201
International Bill of Rights 281
International Campaign for Human Rights in Iran 123
International Charter of Human Rights 374
International Court of Justice (World Court) 143, 149, 151
International Covenant on Civil and Political Rights (ICCPR) 172, 173, 175, 179, 204, 237,
257, 318
International Covenant on Economic, Social and Cultural Rights (ICESCR) 41–2, 56, 257
International Criminal Court (ICC) 150, 335, 336, 355, 392, 395
international criminal justice 392–3
International Feminist Journal of Politics 440
International Religious Freedom Act (US 1998) (IRFA) 322, 323
Intifada, first (1987) 425–6
Intifada, second (2000) 427
Iran:
constitution 243;
demographics 185–6;
family planning 230–9;
freedom of expression 60;
Green Movement 26, 28, 116–26, 185–6, 438;
human rights conventions/treaties 42, 256;
political legitimacy 28;
religious freedom 319, 323;
Sharia law 291;
wages/income 44;
women 244, 245–6, 248, 249–50, 251
Iran–Iraq war (1980–8) 77, 86
Iranian diaspora 122–3
Iranian Revolution (1979) 93, 117
Iraq:
American invasion (2003) 86, 87, 465;
Arab Spring 494–5;
1202
genocide 76, 78, 85;
human rights treaties 42, 42;
radical Islamism 86–7;
religious freedom 319, 320–1, 325;
transitional justice 334, 335, 336;
women 44, 244, 245, 247, 250
Iraq–Kuwait war (1990–1) 78, 86–7
“Irhal” (song) 62–3
Ishay, Mieline xiii, 11, 255–66
ISIL 263
Islam and Human Rights (Ann Mayer) 295
Islamic State/Daesh (ISIS) 83–97, 320, 325, 399–400
Islamist Welfare Party (Turkey) 107
Islamophobia 176, 177, 178
Israel:
aas on Gaza 79;
claims to Palestine 129;
criticism by Turkey 111;
Eimann trial 423–5;
establishment 422–3;
expulsion of Palestinians 76, 77;
recognition 42;
religious freedom 319;
US support 142–51; see alsoOccupied Territories
Israel-as-reparation notion 423
Israel’s Holocaust and Politics of Nationhood (Idith Zertal) 424
Israeli selements 130, 131, 134, 135–6, 143–5
1203
Jaibi, Fadhel 64
Jamaï, Abou Bakr 379
January Revolution (Egypt) 477, 478
Japan 394
Jasmine Revolution (Tunisia) 28, 191
Jensen, Steven 374
Jihadi Discourse in the Wake of the Arab Spring (Nelly Lahoud & Muhammad al-Ubaydi)
90
Jordan:
constitution 262;
education 185;
human rights treaties 42;
political legitimacy 34;
refugees 197, 199, 200, 202, 203, 205, 208, 209, 212;
religious freedom 319;
women 246–7, 250
Joseph, Suad 246
Jumbla, Walid 355–6
“juridical humanity” 421
Justice and Development Party (Egypt) 322
Justice and Development Party (Turkey) seeAKP
Jyllands-Posten (Danish newspaper) 174, 175
Kagan, Miael 204
Kagan, Roger 396
Kahrizak prison (Iran) 124
Kaldor, Mary 9, 413
Karman, Tawakol 261
Karouz Aucar, Myriam 249
Karroubi, Mehdi 117, 118
Katamine, Nidal 199
1204
Kaaa, Maha 196
Kayaoglu, Turan xiii, 8, 104–15, 307, 313
Kazeboon collective 66–7
Keddie, Nikki 262
kefala system 224, 225
Kefaya movement (Egypt) 182, 184, 185, 189, 260, 476
Kennedy, David 503
Kennedy, John F. 92
Kenya 395
Kerry, John 150, 324–5, 499
Khafaji, Sallama Al 249
Khaled M. Libyan 190
Khaled Said, Kullena 184
Khamenei, Ayatollah Ali 28, 120, 230, 234, 306
Khatami, Mohammad 117
Khiari, Nadia 66
Khomeini, Ayatollah 172, 231, 320
Khouri, Rami 97
Kipling, Rudyard 256
Kollman, Kelly 455
Koskenniemi, M 132
Kouner, Bernard 398
Kretzmer, David 134, 505
Ksila, Khémais 505–6, 510
Kuper, Leo 73
Kurdi, Alan 198
Kurdistan Workers’ Party (PKK) 107
Kurds/Kurdistan 75, 76, 77, 78, 106, 107, 108, 110, 112–13
Kuti, Fela 61
Kuwait:
Iraqi invasion (1990) 78;
human rights treaties 42;
migrant workers 43, 219–24, 225, 226;
1205
political legitimacy 32, 34, 36;
religious freedom 319;
women 245, 249
labor organizations 260
Lagendijk, Joost 108
Lal, Sampat 436
Landis, Joshua 80
Landolt, Laura xiv, 9–10, 156–68
Langer, Felicia 504
Laplante, Lisa 332
Larijani, Mohammad Javad 124
Laroui, Abdellah 377
Lauren, Paul Gordon 374
Lausanne Treaty (1924) 108
Law of Return 429
Law on Foreigners and International Protection (Turkey 2013) 206
Lazreg, Marnia 377
League of Arab States 470
Lebanon:
constitution 243;
freedom of expression 66;
human rights conventions/treaties 41, 42, 268;
political legitimacy 34, 36;
refugees 197, 199, 200–1, 202, 203–4, 205, 206, 208, 209
religious freedom 319;
transitional justice 349–56;
women 248, 250, 434
1206
Lee, Kim 439
legitimacy seepolitical legitimacy
Lemkin, Raphael 72, 73, 391
Les Miserables (Victor Hugo) 62
Levene, Mark 74
LeVine, Mark xiv, 6–7, 53–70
Levy Report 132, 136–7
Libya:
civil society 259;
constitution 262;
education 185;
human rights treaties 42;
political legitimacy 28, 30, 31;
religious freedom 319;
responsibility to protect principle 395, 396;
transitional justice 335, 336, 338, 339, 341, 394
Ligue Tunisienne des Droits de l`Homme (LTDH) 505, 506, 507, 508
Likud Party 135
Limasso, Cyprus 289
Loe, John 255, 403
Logan, Laura 261
Louis XIV, King of France 496
Loutfi, Omar 41
Lyn, Marc 91
Maarouf, Mazen 63
Madani, Iyad Ameen 179, 312
Magna Carta 373
Mahdavi, Pardis xiv, 11, 219–28
Maher, Ahmed 189
Malik, Charles 41, 256
1207
Malik, Tashfeen 95
Mamdani, Mahmood 78, 422
Mandela, Nelson 402
Manjoo, Rashida 243
Mann, Miael 76, 80
Manoto TV 123
Mansour, Abdel Rahman 184
Marie-Prudhomme, Louis 262
Marx, Karl 259, 374
Masaed, “AJ” 191
Masoud, Tarek 29, 30
Maspero massacre (2011) 480, 488
Mavi Marmara (Turkish ship) 111
Mawdudi, Abul Ala 306
Mayer, Ann xiv, 10, 170–80, 281, 295, 296, 298, 300
McGowan Davis, Mary 150
McGuire, Danielle 436
McMahon, Henry 130
Mearsheimer, John 89
Meir, Golda 135
Meister, Robert 436, 438
Middle East Partnership Initiative (2002) (MEPI) 475
Midlarsky, Magnus 74
migrant women 225–7
migrant workers 43, 219–27
Mir-Hosseini, Ziba 224
Mohammadi, Narges 121
Mohammed V, King of Morocco 378, 379
Mohammed VI, King of Morocco 38, 340, 376, 378, 380, 495
Mohanty, Chandra Talpade 436
Mokhtari, Shadi xiv, 8, 116–27
Molaverdi, Shahidokt 119
Monjib, Maâti 379
1208
Monshipouri, Mahmood xiv, 10, 182–94
Moroccan Association of Human Rights (AMDH) 379, 380, 508
Moroccan Equity and Reconciliation Commission (IER) 340
Morocco:
Arab Spring 495;
constitution 262;
education 377–8;
freedom of expression 57, 58–9, 64;
human rights conventions/treaties 42, 378–9;
human rights movement 379–80;
impunity 380–1;
official culture 375–7;
political legitimacy 36;
religious freedom 319;
traditionalization policy 377;
transitional justice 340;
wages/income 44
Morsi, Mohammad 29, 58, 91, 185, 322, 341
Morsink, Johannes 374
Mosireen collective 66
Moukrim, Maria 379
Moussavi, Mir Hossein 117–18
MTV 56
Mubarak, Hosni 29, 34, 46, 63, 91, 182–3, 188, 189, 334, 339, 341, 403, 476, 477, 478, 495, 496
Mui, Jawaat 41
Mukhtar Mai Women’s Organization 437
Mursi, Muhammad 480, 482, 483, 489
Muslim Brotherhood 29–30, 58, 79, 91, 110, 183, 260, 322, 341, 482–3, 486, 496
Muslim Women for Human Rights 402
Mutawakkil, Ibtisam 63
Mutua, Makau 375, 436
1209
Muvingi, Ismael 337
Myanmar 395
Nahda movement (Tunisia) 260, 477
Namjoo, Mohsen 60
Nardin, Terry 295
Narus (US company) 185
Nasraoui, Radhia 506, 510
Nasser, Gamal Abdel 83, 257
Nataly (migrant worker) 219–21, 223, 224
National Constituent Assembly (Tunisia) (NCA) 339, 361, 363, 365, 366, 371
National Council for Human Rights (Egypt) (NCHR) 480–1, 488
National Salvation Front (Egypt) 483, 489, 490
nationality seeright to a nationality
Nazmi, Neda xiv, 8, 116–27
Neier, Aryeh 419
Netanyahu, Benjamin 136, 145
New York Times83, 88, 91
Nicaragua 415
Nidaa Tounes 342, 367, 368, 369
Nobel Peace Prize 37, 261, 506
non-governmental organizations (NGOs) 156–61, 201, 260, 410, 447;
Occupied Territories 425, 426–7
non-refoulement principle 198, 199
norm life cycle 447–8
North Korea 432
Obama, Bara 84, 145, 152, 325
Obama administration 90, 111, 145, 146, 149, 150, 323, 324, 325
Öcalan, Abdullah 107, 110
Occupied (Palestinian) Territories 129–37, 138, 139, 425–8; see alsoGaza Strip, Golan
Heights, Israeli selements, West Bank
Odierno, Ray 84
1210
“Oil for Food” program 87
Oman:
human rights treaties 42;
political legitimacy 32;
religious freedom 319;
unemployment 43;
women 261
Oneissi, Hussein Hassan 355
Organization of Islamic Cooperation (OIC) 170–9, 291, 304–13
Orientalism 268–9, 295, 373
Origins of the Family (Friedri Engels) 261
Oslo Accords (1993) 131, 135, 143, 426, 465
Ooman Empire 74–5
Owen, Roger 29, 37
Pakistan 256, 437
Palestine:
British Mandate 503;
civil society 508;
freedom of expression 64, 65, 66;
partition (1947) 422;
religious freedom 319;
unemployment 186;
women 245; see alsoOccupied Territories
Palestine Liberation Organization 148, 463
Palestinian uprisings seeIntifada
Palestinians 47–8, 76, 77, 130, 138, 139, 199–200, 469
Panea, Leon 84
1211
Paris terrorist aas (2015) 94
Parks, Rosa 436
Peace of Westphalia 292
Pelosi, Nancy 146
Perugini, Nicola xiv, 16–17, 419–29
Petersen, Marie Juul xiv, 13, 304–15
Pew Resear Center for Religion and Public Life 319, 326
phantom courts 367
Philosophical Discourse of Modernity (Jürgen Habermas) 288–9
Pinheiro, Paulo Sérgio 90
Pinoet, Augusto 393
poetry 63–4
political legitimacy 26–36
Posner, Eric 438
pro-natalism 232–3
Proclamation of Teheran (1968) 48–9
Qatar:
education 46;
human rights treaties 42;
NGOs 165;
political legitimacy 32, 36;
religious freedom 319;
women 44, 245
Qenawi, Omar 500
r`an 280, 284
Rab`a al-adawiya massacre (2013) 91
Rabin, Yitzhak 135, 426
Rabinow, Paul 377
radical Islamism seeal-Qaeda, ISIL, Islamic State, Wahhabism
1212
Radio Farda 123
Rae, Heather 80
“Rais Lebled” (song) 61–2, 191, 260
Rajagopal, Balakrishnan 412, 438, 450
Rana Plaza factory collapse 411, 412
rap music 61–2, 190, 259–60
rape 83, 228, 283
Rashômon effect 129
Rathke, Jeff 327
Reagan administration 150
Refugee Convention (1951) 197, 199, 200, 205
refugees 47–8, 196–211, 451
Reid, Harry 146, 147, 150
religious freedom 317–26
reparative justice 331–2
responsibility to protect principle 394–6
restorative justice 331
retributive justice 331, 338–9
Rice, Condoleezza 145
Rice, Susan 149
Riards, Alan 32
Rieff, David 398
Rieffer-Flanagan, Barbara Ann xiv, 13, 317–27
right to a nationality 209–10
right to work 205–6
Roadmap for Peace (2003) 144–5
Robins, Simon 332
Romero, Oscar 337
Roosevelt, Eleanor 261, 264, 389
Roosevelt, Franklin D. (FDR) 263–4, 389, 403, 404
Rorty, Riard 431
Ross, Dennis 144
Rouhani, Hassan 28, 116, 118–20, 321
1213
Rubinstein, Amnon 422
Ruhaini, Siti 310–11
Rushdie, Salman 172, 176
Russia 89, 177, 312, 396
Rwandan genocide (1994) 78
Sabra, Assad Hassan 355
Sabra/Shatila refugee camp 77, 351
Said, Khaled 184
Salafi Nur party (Egypt) 480, 481, 483, 484
Salafism 89, 93, 95–6, 282
Salah, Ahmed 189
Salama, Ibrahim 315
Saleh, Ali Abdullah 32, 184, 261, 497
Salih, Ali Abdullah 505
Samir, Bassem 189
San Bernardino terrorist aa (2015) 95
Sarkozy, Nicolas 110
Satanic Verses (Salman Rushdie) 172, 176
satellite television 259
Saud, Muhammad Ibn 93
Saudi Arabia:
constitution 243;
education 46;
freedom of expression 57;
human rights conventions/treaties 41, 42, 256;
migrant workers 43;
political legitimacy 32;
radical Islamism 92–6;
religious freedom 319, 320, 321, 323, 324;
women 245, 261
1214
Sayyid tb 283
Second Treatise of Government (John Loe) 255
Security Council 396, 403–4
Security Council resolutions 131, 143, 144, 145, 151–2
self-determination 55, 231, 256, 257, 306, 406, 421
selements seeIsraeli selements
sexual and reproductive rights and health (SRRH) 223, 224, 226–7; see alsofamily planning
sexual orientation 453–7
Sfard, Miael 505
Shabayek, Sondos 64
Shaheed, Ahmad 124, 326
Shamir, Yitzhak 135
Sharia law 271–80, 291
Sharp, Dustin N. 336
Shaw, Martin xiv, 7–8, 72–82
Sheen, Fathi 85–6
Shehadeh, Raja 503, 504
Shirazi, Mokarem 120
Shirazi, Sa`adi 431
Shukrallah, Hani 507
Shukri, Girgis 64
Siddiq, Mohammed Zuhair 355
Sierra Leone 333
Silence and the Roar (Nihad Sirees) 85
Sirees, Nihad 85
Sirleaf, Matiangai 333
Sisi, Abdel Faah 91, 322, 324–5, 341, 466, 473, 483, 485, 496
Sistani, Ayatollah 250, 494
“slut walk” protests 435
Snyder, Timothy 74, 75
social cohesion 86
social media 56
Soliman, Laila 64
1215
Soltan, Mohammad 91
Soltan, Neda 439
Soltani, Abdolfaah 122
Soroush, Abdulkarim 117
Sotoudeh, Nasrin 119, 121
Spanish civil war 394
Special Tribunal for Lebanon (STL) 349, 350, 352–6
Sri Lanka 391
Sriram, Chandra Lekha xiv, 14–15, 349–58
Stammers, Neil 450
State Department seeUS State Department
sterilization 236
Stern, Steve J. 437
Stewart, Robert 338
Straus, Sco 73–4, 437
Sudan:
human rights treaties 42;
Sharia law 292, 294
Suleiman, Omar 495
Supreme Council of the Armed Forces (Egypt) (SCAF) 29–30, 478–80, 496
Surrendering to Utopia (Mark Goodale) 436
Sykes–Picot agreement 256
Syria:
civil society 259;
genocide 79;
human rights treaties 41, 42;
invasion of Lebanon (1976) 350;
political legitimacy 28, 30–1;
prison system 86;
radical Islamism 87–90;
refugees 196–211;
1216
religious freedom 319, 320;
responsibility to protect principle 396;
transitional justice 335;
Turkish intervention 113;
women 44, 250
Syrian Network for Human rights 89
Syrian refugees 196–211
Tadmor prison (Syria) 86
Ta`if agreement (1989) 350
Tamarod movement (Egypt) 185, 490
Tantawi, Mohammed Hussein 496
abit, Ibn 62
Tibi, Bassam xv, 12, 288–303
Time magazine 189
Toal, Gerard 80
Tostan women’s movement 437
traditionalization 377
transitional justice 330–42, 349–56, 360–70, 393–4
transnational advocacy networks (TANs) 156–66, 445–6, 447
Travis, Hannibal 75
Treaty of Versailles 256, 257
Truman, Harry S 389, 423
Truth and Dignity Commission (Tunisia) (TDC) 334, 336, 342, 363, 366, 367
Truth and Reconciliation Commission (South Africa) 333, 394
Tsarnaev, Tamerlane 94
Tunisia:
Arab Spring 497;
civil society 259;
communication tenologies 184, 188, 190–1;
constitution 262, 263;
1217
demographics 185;
excessive use of force 476–7;
food insecurities 46;
freedom of expression 59–60, 66;
human rights conventions/treaties 42, 268;
labor organizations 260;
legal system 505–6;
political legitimacy 28–9, 30, 34, 36, 37;
religious freedom 319;
transitional justice 334, 336, 338, 339, 342, 360–70;
unemployment 186
wages/income 44;
women 261, 264
Tunisian General Union for Work 477
Tunisian National Dialogue artet 37, 506
Tunisian Union Genéral du Travail (UGTT) 260
Turkey:
AKP reforms 104–5, 107–13;
food insecurities 45;
freedom of expression 54, 60;
genocide 77, 394;
NGOs 105–6;
radical Islamism 107;
refugees 197, 199, 200, 202, 203, 205, 206, 208, 209;
rights framework 42, 105–7;
wages/income 44
Ukraine 395
1218
UN:
arter 390–1;
definition of genocide 73;
understanding of human rights 309–11
U.N. Arab Human Development reports 36, 97
U.N. Charter 470
U.N. Commiee on Economic, Social and Cultural Rights 207
U.N. High Commissioner for Refugees (UNHCR) 38, 197, 200, 201, 203, 204, 213
U.N. Human Rights Council (UNHRC) 137, 142, 150, 156–66, 398, 414
U.N. Human Rights Council resolutions 171, 173, 177, 178, 179
U.N. Independent International Commission of Inquiry on Syria 89
U.N. Security Council seeSecurity Council
U.N. Special Commiee on Palestine (UNSCOP) 423
U.N. Special Rapporteur on Cultural Rights 53
U.N. Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of
Non-Recurrence 338
U.N. Wat 159
unemployment 42–4, 186–7
unions seelabor organizations
United Arab Emirates (UAE):
constitution 244;
education 46;
human rights treaties 42;
migrant workers 225, 226;
NGOs 165;
political legitimacy 32, 36;
religious freedom 319;
women 248–9;
zina laws 228
1219
Universal Declaration of Human Rights (UDHR) 41, 55, 56, 170, 200, 204, 256, 268, 269, 290,
292, 306–7, 318, 374, 389, 420, 421
universal periodic reviews (UPRs) 156, 158, 159
US Commission on International Religious Freedom (USCIRF) 322, 323, 324, 327
US State Department 111, 143, 189, 322–3
Van Engeland, Anicée xv, 11, 243–53
Van Hullen, Vera 505
Vatican 392
veing 331, 339
Vienna Declaration and Programme of Action (1993) 49
Virtue Party (Turkey) 104
Voltaire 403
wages/income 44–5
Wahhabism 92–5, 282
Walt, Stephen 89
Waltz, Susan 374, 506, 507
‘war on terror’ 308, 370, 469
Warzazi, Halima Embarek 41
Watenpaugh, Keith 433
Waterbury, John 32
Weber, Max 27
Weizman, Chaim 423
Welman, Lynn xv, 5, 19–20, 502–11
Weld El 15 (Tunisian rapper) 60, 62
Welsh, Jennifer 72
West Bank 77, 80, 133, 135, 149, 504
“White Man’s Burden” (Rudyard Kipling) 256
Wiebelhaus-Brahm, Eric xv, 14, 330–48
Wikileaks 93, 94–5
Wilders, Gert 179
women 44, 243–52, 261–2, 264, 400–1, 436–40; see alsomigrant women
1220
Women Living Under Muslim Laws coalition 436
women’s rights organizations 121–2, 186, 258
World Bank 437
World Court seeInternational Court of Justice
World Food Programme 207
World Health Organization 236
World Press Freedom Index 36, 112
World War I 256
World Zionist Organization 135
Wright, Robin 190, 191
Wye River Memorandum 138
Yakobson, Alexander 422
Yazidis 83, 325
Yemen:
civil society 259;
communication tenologies 184, 191;
conflict with Saudi Arabia 324;
constitution 262;
education 185;
freedom of expression 65;
human rights conventions/treaties 42, 256;
legal system 505;
political legitimacy 32–3;
religious freedom 319;
transitional justice 338;
women 244, 245, 247, 250, 261
Yousafzai, Malala 439
Zalaque, Jose 507
Zanjani, Bayat 120
1221
Zarif, Javad 120
Zertal, Idith 424
zina laws 224, 226, 228
Zulficar, Mona 163
Zunes, Stephen xv, 9, 142–53
- Title
- Copyright
- Dedication
- CONTENTS
- Editor biography
- List of contributors
- PART I Frameworks
- SECTION I Introduction and overview
- 1 Human rights and the Middle East and North Africa: indivisibility, social rights, and structural change
- Anthony Tirado Chase
- SECTION II A conceptual framework: political, economic, and cultural rights in the Middle East and North Africa
- 2 Political legitimacy, contingency, and rights in the Middle East and North Africa
- Hussein Banai
- 3 Economic rights in the Middle East and North Africa
- Zehra F. Kabasakal Arat
- 4 Cultural rights in the Middle East and North Africa: art, revolution, and repression
- Mark LeVine
- SECTION III A political framework: intersecting human rights and governance crises in the Middle East and North Africa
- 5 Genocide in the contemporary Middle East: a historical and comparative regional perspective
- Martin Shaw
- 6 The ISIS crisis and the broken politics of the Arab World: a framework for understanding Radical Islamism
- Nader Hashemi
- 7 The impact of the AKP on human rights in Turkey: one step forward, two steps back
- Turan Kayaoglu
- 8 The politics of human rights in Iran since the Green Movement
- Shadi Mokhtari and Neda Nazmi
- 9 Narrating law: Israel and the Occupied Territories
- Kathleen Cavanaugh
- 10 The United States and Israeli violations of international humanitarian law
- Stephen Zunes
- SECTION IV A transnational and international framework: human rights beyond borders
- 11 Rival transnational advocacy networks and Middle East politics at the U.N. Human Rights Council
- Laura K. Landolt
- 12 Redefining rights: Organization of Islamic Cooperation attempts to reshape values in the U.N. human rights system
- Ann Mayer
- 13 Human rights, youth, and technology: agents of change?
- Mahmood Monshipouri
- 14 Rights, refugees, and the case of Syria: what do human rights offer?
- Kathleen Hamill
- PART II Issues
- SECTION V Gender and human rights in the Middle East and North Africa
- 15 Colliding rights and wrongs: intimate labor, health, human rights, and the state in the Gulf
- Pardis Mahdavi
- 16 Turning back the clock: population policy and human rights in Iran
- Homa Hoodfar
- 17 Women’s rights in the Middle East: constitutions and consequences
- Anicée Van Engeland
- 18 The Arab uprisings and the future of human rights
- Micheline Ishay
- SECTION VI Religion and human rights in the Middle East and North Africa
- 19 Shari`ah and human rights
- Khaled Abou El Fadl
- 20 Islam, the principle of subjectivity, and individual human rights
- Barbara Ann Rieffer-Flanagan
- 21 The OIC, human rights, and religion: rejection, reconciliation, or reconceptualization?
- Marie Juul Petersen
- 22 Rhetoric versus reality: American foreign policy and religious freedom in the Middle East
- Barbara Ann Rieffer-Flanagan
- SECTION VII Transitions and accountability in the Middle East and North Africa
- 23 Core transitional justice debates in the Middle East and beyond
- Eric Wiebelhaus-Brahm
- 24 Courts as a tool in transitions: lessons from the special tribunal for Lebanon
- Chandra Lekha Sriram
- 25 Lessons on transitioning from authoritarianism: pitfalls and promise from Tunisia’s experience
- Rim El Gantri
- 26 The impact of impunity on violating cultural rights in Morocco
- Osire Glacier
- PART III Conclusions: global theory and grassroots reflections
- SECTION VIII Conclusions from a global viewpoint: theoretical justifications and contestations around human rights
- 27 International human rights at 70: has the Enlightenment project run aground?
- David P. Forsythe
- 28 On the local relevance of human rights
- Koen de Feyter
- 29 Israel/Palestine, human rights and domination
- Nicola Perugini and Neve Gordon
- 30 The quest for constructive criticism: critical approaches to human rights
- Alison Brysk
- 31 Making human rights ‘universals’ from the ground up?
- Lisa S. Alfredson
- SECTION IX Conclusions from a grassroots viewpoint: reflections on dynamics around struggles for human rights in the Middle East and North Africa
- 32 Reflections on three decades of human rights work in the Arab region
- Fateh Azzam
- 33 Egypt 2011–15: how can a democratic revolution fail to improve human rights conditions?
- Amr Hamzawy
- 34 Reflections on human rights before and after the Arab Spring
- Bahey eldin Hassan
- 35 Human rights, law and politics: a reflection on human rights work in the Middle East and North Africa
- Lynn Welchman
- Index
