Human Rights of Religious Minorities and of Women ...

Human Rights of Religious Minorities and of Women in the Middle East Ghanea-Hercock, Nazila. Human Rights Quarterly, Volume 26, Number 3, August 2004, pp. 705-729 (Article) Published by The Johns Hopkins University Press DOI: 10.1353/hrq.2004.0035

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HUMAN RIGHTS QUARTERLY

Human Rights of Religious Minorities and of Women in the Middle East Nazila Ghanea* ABSTRACT This article considers the human rights situation of religious minorities living in the Muslim Middle East. It notes the common thread of human rights abuses that they face, and analyzes this in the light of Muslim legal concepts and standards. The article then explores whether or not the improvement of the human rights situation of religious minorities in the Middle East could be attempted from within a Muslim religious framework. Can the emancipatory interpretation of Islamic traditions and laws be used to eliminate the obstacles to the realization of their rights? This examination is carried out in the light of the literature and activism on the promotion of the rights of women under Muslim and Middle Eastern rule.

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INTRODUCTION

November 2003 witnessed the bombing of two Istanbul synagogues injuring and killing over 300 victims. October 2001 saw the killing of eighteen Christians during worship in Bahawalpur, Pakistan. Attackers drew a connection between the existence of Christians in their midst and the allied bombings in Afghanistan. The weekend of 31 December 1999

* Nazila Ghanea is the MA Convenor at the University of London, Institute of Commonwealth Studies. Her research has focused on freedom of religion or belief, religious minorities in the Middle East, the human rights of women, and the UN human rights machinery. Her publications have included a monograph Human Rights, the UN and the Bahá’ís in Iran (The Hague: Kluwer Law, 2003) and an edited collection The Challenge of Religious Discrimination at the Dawn of the New Millennium (Leiden: Martinus Nijhoff, 2003). Thanks are extended to Professor Tim Shaw, Dr. Katarina Dalacoura, and Tarja Martikainen for their comments on earlier drafts of this article.

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through 2 January 2000 saw the killing of twenty-one Coptic Christians in the village of Al-Kosheh in Egypt. This was carried out by mobs as security officials stood by and did nothing to stop the attacks. March 1999 saw the imprisonment of thirteen Jews in the Iranian city of Shiraz. The thirteen were accused of espionage for the United States and Israel.1 July 1998 saw the execution of a Bahá’í in Mashhad.2 This latest execution was allegedly due to the victim converting a Muslim to the Bahá’í Faith, but thousands of Bahá’ís in Iran have been executed over the past century and a half accused of all kinds of religious and political “crimes.”3 These examples provide just a glimpse into the numerous range of cases in the Middle East of governments turning a blind eye towards or being directly involved in attacks on non-Muslims. This article is focused on the human rights of religious minorities4 in the contemporary Muslim Middle East5 and the dilemmas faced by these religious minorities6 living alongside Muslim majorities. This article begins analysis in the second part by exploring the basis of the term “Muslim politics” and its relationship to the study of the human rights of religious minorities in the Middle East. The term is utilized to refer to the symbolic

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This event was covered widely by the international press. See, e.g., John F. Burns, Arrests Shake Ancient Roots of Iran’s Jews, N.Y. TIMES, 17 October 1999, available at www.la. utexas.edu/chenry/aip/press99/101799iran-jews.html. For an overview of the international response see also Ariel Ahram, Jewish ‘Spies’ on Trial: A Window on Human Rights and Minority Treatment in Iran, WASH. INST. NEAR E. POL’Y, RES. NOTE 7 (Aug. 1999), available at www.washingtoninstitute.org/junior/note7.htm. NAZILA GHANEA, HUMAN RIGHTS, THE UN AND THE BAHÁ’ÍS IN IRAN 378 (2003). This victim’s name was Mr. Ruhollah Rawhani. His execution added to the 20,000 Babís and Bahá’ís killed in Iran in the 1800s and the more than 200 killed over the 1980s and 1990s. For a further discussion see id. MARIO APOSTOLOV, RELIGIOUS MINORITIES, NATION STATES AND SECURITY: FIVE CASES FROM THE BALKANS AND THE EASTERN MEDITERRANEAN 17 (2001). Despite the distinction, the term “religious minorities” is used interchangeably with the term “non-Muslim minorities” in this article. The focus is not, therefore, on Muslim minority groups such as the Shia in countries where the Sunni are in the majority, or vice versa. Apostolov produces different categorizations for the study of religious minorities, such as classification in terms of, “their origin, existence of an ethnic element in their identity, dominant or non-dominant position in society, degree of tension or oppression by the regime, and the degree of communal fragmentation.” Focusing on their position in society, religious minorities can also be distinguished according to those that are, “dominant, tolerated, and discriminated.” Id. The focus of this study is only on the Muslim Middle East, as serious consideration of either Middle Eastern secular states or those with other religious dominance (e.g. Israel and Judaism) or non-Middle Eastern Muslim states would move this study beyond the limitations and scope of this article. The term “religious minorities” used in this context could also include Muslim minorities, such as Shii minorities in Sunni majority areas and Sunni minorities in Shii communities. However, to allow sufficient focus, attention will be on non-Muslim religious minorities.

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capital and the shared ideas and practices of Muslims that can be mobilized to impact the human rights of religious minorities. Once the article has noted the common thread of abuses of the human rights of non-Muslims in the Middle East, the linkage is explored between this situation and Muslim legal concepts on the one hand and a number of recent Muslim texts on human rights on the other. Having established that “Islam” continues to be utilized and exploited in the Middle East as a legitimating factor behind repressive policies against religious minorities, the third part of this article explores the assertion that only the removal of religion from the Middle Eastern public sphere can hope to remedy the situation. This is integral to the main premise of the article, which is that improvement in the human rights situation of the Middle East’s religious minorities is not dependent on the attempted obliteration of the religious framework, due primarily to pragmatic considerations. The article then shifts to the fourth part, comparing the literature and activism promoting the rights of women under Muslim and Middle Eastern rule with that of religious minorities. This comparison points to the utility of the Muslim point of reference as a leverage towards the emancipation of women. The article finally concludes that religious minorities may have much to gain from similar approaches of mobilization within Muslim terminology and frameworks toward their emancipation. Creating such acceptability within the religious framework of the majority is actually presented as the most amenable option at present, as the numbers and standing of religious minorities in the Middle East today do not allow for other alternatives. This study faces a number of dilemmas—that of not essentializing the vast divergence in the situation of human rights in Muslim contexts, while noting the thread of human rights abuse against its religious minorities; that of examining the human rights of “religious minorities” in the Middle East where the term is strongly contested by the states of the region;7 and that of defining and delimiting what is meant by the term “Muslim politics.”

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Apostolov puts the dilemma in a wider context, arguing that “The logic of contemporary international relations, centred on the national state, hampers the recognition of national and, even more so, religious minorities as subjects of international law. Some experts stress the necessity of such recognition in order to give minorities in divided societies a say in determining their fate.” APOSTOLOV, supra note 4, at 174.

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II. “MUSLIM POLITICS” AND RELIGIOUS MINORITIES A. The Human Rights of Religious Minorities in the Middle East The starting point of this analysis is human rights standards as agreed and enshrined in international human rights texts8 and the resulting UN machinery that has been set up to monitor compliance. Through these standards and this machinery, Middle Eastern states have voluntarily accepted legal obligations9 to uphold the freedom of every individual to hold, practice, and manifest the religion or beliefs of his choice.10 These standards have human rights implications for both religious minorities as communities and for religious minorities as the individual membership composing them.11 From the reports of the UN Special Rapporteur on Freedom of Religion or Belief from 1995 to 2003, it can be noted that the human rights dilemmas facing religious minorities in the contemporary Middle East range from civil

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Internationally agreed human rights standards regarding religious minorities are primarily encapsulated in the Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., (Resolutions, pt. 1), at 71, U.N. Doc. A/810 (1948) art. 18, reprinted in 43 AM. J. INT’L L. Supp. 127 (1949); International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 18, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976); Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted 25 Nov. 1981, G.A. Res. 36/55, U.N. GAOR, 36th Sess., Supp. No. 51, U.N. Doc. A/36/51 (1981), reprinted in RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 490.1 (1990). Though the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, supra note 8, arguably sets out the most thorough and focused text on freedom of religion or belief, its status as a Declaration means that it is not legally binding. See William Barbieri, Group Rights and the Muslim Diaspora, 21 HUM. RTS. Q. 907, 926 (1999). It is interesting to compare this list of human rights challenges facing religious minorities in the Middle East with the rights that are being pursued by Muslims in the European context. Barbieri notes that “a number of prospective group rights are intimated by the agenda of recognizing the human right to religious freedom of Muslim minorities in the countries of Western Europe. These include: collective rights, such as the right to wear head scarves even in self-consciously laicized public schools, the right to take time off from work to engage in prayer and the celebration of holy days, and the right to polygamous marriage; and corporate rights, such as the right to institute public prayer calls, the right to receive public funding for religious instruction on par with other established religious groups, and the right to carry out the ritual slaughter of animals for religious purposes.” Barbieri distinguishes between “collective” and “corporate” rights, and between “nondomination rights” and rights of “self-determination.” Id. Relevant cases will be put in footnotes 12–26 from the reports of the UN Special Rapporteur on Freedom of Religion or Belief. These cases are by way of illustration and do not claim to be either exhaustive nor necessarily representative of incidents that exclusively occur in the Muslim Middle East in relation to religious minorities.

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and political rights, to economic, social and cultural rights. Because there is insufficient opportunity to explore detailed empirical examples, this article will rely on the following select, but representative, range from the Special Rapporteur regarding the categories of human rights challenges facing nonMuslim minorities in the Middle East. The challenges that affect religious minorities as individuals include: violations of physical integrity and the right to life;12 denial of citizenship13 and denial of certain civil rights, such as registration of marriages or births;14 discrimination in the judiciary;15 exclusion from employment in certain government sectors, particularly from the army, judiciary and senior educational posts;16 prohibition of the

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See Report submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1996/23, U.N. ESCOR, Comm’n on Hum. Rts., 54th Sess., Agenda Item 18, ¶¶ 60, 66, U.N. Doc. E/CN.4/1998/6 (1998) In Iraq, two Christians were reportedly killed in response to a fatwa to that effect issued by an imam. The following reports were also noted: reports of mistreatment in Afghanistan, Iran, Pakistan, and United Arab Emirates; reports of arrests and detentions in Iran and Pakistan; reports of murders in Iran, Iraq, and Pakistan; and allegations that security forces murdered two Assyro-Chaldean suspects without proof for allegedly murdering a Muslim in Iraq. See also Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1995/23, U.N. ESCOR, Comm’n on Hum. Rts., 52d Sess., Agenda Item 18, addendum, ¶ 79, U.N. Doc. E/CN.4/ 1996/95/Add.2 (1996). In Iran, 201 Bahá’ís were assassinated and fifteen disappeared and were presumed dead between 1979 and 1996. Three Protestant pastors were murdered in 1994, leading to a great sense of trauma in the Protestant community. See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1996/23, supra note 12, ¶ 58, discussing the denial of citizenship to non-Muslims in Kuwait. See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur on Freedom of Religion and Belief, in accordance with Commission on Human Rights resolution 2002/ 40, U.N. ESCOR, Comm’n on Hum. Rts., 59th Sess., Agenda Item 11(e), ¶ 53, U.N. Doc. E/CN.4/2003/66 (2003). In Jordan, a Christian mother was deprived of custody of her children because her late husband had converted to Islam prior to his death. The Supreme Court rejected her appeal and authorized the removal of her children to her brother’s custody because he too had converted to Islam. See also Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur on Freedom of Religion and Belief, in accordance with Commission on Human Rights resolution 2000/33, U.N. ESCOR, Comm’n on Hum. Rts., 58th Sess., Agenda Item 11(e), ¶ 71, U.N. Doc. E/CN.4/2002/73 (2002). In Egypt, birth certificates were denied to children born to a Bahá’í couple. See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1995/23, supra note 12, ¶ 45. In Iran, the court system reportedly often discriminates against non-Muslims and decides in favor of Muslims, especially in the lower courts. See id. ¶ 44. In Iran, religious minorities do not have professional access to the army and judiciary, generally lack access to government posts, and are limited in their career development to the rest of the administration. Non-Muslim owners of grocery shops are required by the government to indicate their religious affiliation on the front of their shops. Id. ¶ 44. Bahá’ís reported to have no access to posts in the government administration. Id. ¶ 64. Bahá’ís were also severely affected in the private sector. Id. ¶ 65.

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marriage of a non-Muslim man with a Muslim woman;17 restrictions on freedom of movement, particularly regarding leaving the country;18 and severe restrictions on missionary activities.19 The human rights challenges that affect non-Muslim religious minorities as communities include: denial of recognition as a religious community and a resulting denial of any kind of political representation;20 denial of education;21 difficulties faced in attempting to run separate educational facilities (minority religious schools) or in having their religion taught in public schools;22 restrictions on freedom of worship or other religious activities;23 confiscation or threats on religious

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See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1996/23, supra note 12, ¶ 68. A Christian was reportedly arrested, imprisoned, and punished by lashes in the United Arab Emirates due to his marriage to a Muslim woman; his arrest was followed by the forced annulment of the marriage. See Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1995/23, supra note 12, ¶ 62. In Iran, Bahá’ís reportedly face major obstacles to obtain passports and exit visas due to the requirement that religious affiliation be stated in application forms for both, thus restricting their freedom of movement. See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1994/18, U.N. ESCOR, Comm’n on Hum. Rts., 51st Sess., Agenda Item 22, § II, U.N. Doc. E/CN.4/1995/91 (1995). In United Arab Emirates, there were reports of a ban on the distribution of religious literature, proselytizing by non-Muslims, and a case of arrest and imprisonment for proselytizing. See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1996/23, supra note 12, ¶¶ 56, 57. In Iran, the Bahá’ís were denied recognition as a religious minority and were accused of being political and counter-revolutionary. Id. ¶ 56. Furthermore, Bahá’ís were denied any kind of political representation. Id. ¶ 61. Id. ¶ 59. In Iran, Bahá’ís have been denied the right to enter any university from 1979 to the present day. See Report on Civil and Political Rights, Including Intolerance, Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in Accordance with Commission on Human Rights Resolution 2000/33, U.N. ESCOR, Comm’n on Hum. Rts., 57th Sess., Agenda Item 11(e), ¶ 160, U.N. Doc. E/CN.4/2001/63 (2001). In Turkey, there were reports of the banning of religious seminaries. Id. In Iran, the directors of religious minority schools had to be Muslims. Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1995/23, supra note 12, ¶ 42. See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in Accordance with Commission on Human Rights Resolution 1996/23, supra note 12. In Kuwait, Mauritania, Oman, Qatar, and Yemen, restrictions were placed on religious matters for non-Muslims. Id. ¶ 58(d). In Kuwait and Qatar, the practice of religion by non-Muslims has to be restricted to the confines of the homes of members. Id. ¶ 63(f); In Iran, restrictions were placed on the religious activities of Protestants; churches were ordered closed and the number of services held was limited. Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1995/23, supra note 12, ¶ 73. There were also reports of pressure and close surveillance of Muslim converts to Protestantism, in attempts to coerce such converts to abandon their religious practices. Id. ¶ 74.

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property, land, and places of worship;24 interference with the election of leaders and representatives;25 and denial of freedom of expression.26 Having noted the commonality of a broad thread of shared human rights challenges facing religious minorities in the Middle East, both in the individual and collective aspects, the question still remains of what this may have to do with the fact that such religious minorities happen to live in a part of the world where the majority are Muslims, and where the leadership may be justified by reference to “Islam”? Do the minority groups’ human rights dilemmas have anything at all to do with “Muslim politics”? This question of the possible linkage between the human rights situation of religious minorities in the Middle East and Muslim politics is crucial to examining the context and framework of analysis of this study.

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See Report on the Elimination of All Forms of Religious Intolerance, Prepared by Abdelfattah Amor, Special Rapporteur of the Commission on Human Rights on Freedom of Religion or Belief, U.N. GAOR, Hum. Rts. Comm’n., 57th Sess., Agenda Item 111(b), ¶ 29, U.N. Doc. A/57/274 (2002). In Egypt, eleven Copts were injured and fifteen homes were burned due to the ringing of Church bells. Id. In Turkey, religious property was confiscated. Report on Civil and Political Rights, Including Intolerance, Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in Accordance with Commission on Human Rights Resolution 2000/33, supra note 22, ¶ 160. Restrictions on religious minorities were also reported in Kuwait and Pakistan. Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1996/ 23, supra note 12, ¶ 64. In Iran, Bahá’í properties were confiscated and Bahá’í holy places were desecrated and destroyed by the authorities. Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1995/23, supra note 12, ¶¶ 59, 61, 62. Also in Iran, property belonging to Iranian Protestants was confiscated and their bank accounts were frozen. Id. ¶ 76. See Report on Civil and Political Rights, Including Intolerance, Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in Accordance with Commission on Human Rights Resolution 2000/33, supra note 22, ¶ 160. In Turkey, there were reports of interference with procedures for electing religious dignitaries. Id. In Turkey, non-Muslims reportedly live under the threat of losing their places of worship. Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1994/18, supra note 19. In Iran, the Bahá’í’s have experienced the denial of the practice of their Faith and the prohibition of Bahá’í organizations since 1983, resulting in the denial of the right to elect and operate administrative institutions. Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1995/23, supra note 12, ¶ 59. See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in Accordance with Commission on Human Rights Resolution 1996/23, supra note 12, ¶ 63(d). In Kuwait, Oman, and Yemen, the local publication of non-Muslim religious materials is prohibited. In Iran, bibles were confiscated, a prohibition was placed on the sale of bibles, and restrictions were placed on all religious publications. Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1995/23, supra note 12, ¶ 73.

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B. Is There Such a Thing as “Muslim Politics”? The term “Muslim politics” is itself problematic on a number of grounds. To begin, it is criticized for implying a monolithic portrayal of not only the vast diversity of Muslim peoples across time and space, but also the variety of political contexts that have emerged across this spectrum. A number of thinkers have, quite rightly, criticized studies that rely on such essentializing assumptions. However, it is also true that the understanding of the critique of Orientalism has become so pervasive that: no criticism, be it of despotic regimes ruling the Middle East, of fundamentalism, or of the Islamic pre-modern view of the world, can go unscathed without being disputed to be an expression of Orientalism . . . Middle Easterners and Muslims also condemn critical comparisons and believe to see in them “sinister political objectives.”27

Nevertheless, numerous Muslim believers, leaders, and communities are buttressed by this same essentializing supposition, that their ways are authentically and exclusively “Muslim” and that others are not. Such presumptions are precisely where the Muslim majority draws its ideological support and confidence from, so to dismiss them entirely would neglect the vibrancy of the claim of “Muslim” law or politics as a unifying factor. Eickelman and Piscatori define this reading of “Muslim politics” as relying on its intimate connection “with the process of symbolic production.”28 Within this context, “the competition is over the right to manipulate the symbolic capital of Islam.”29 This article accepts the duality in the implications of “Muslim politics.” The term should not be taken to justify collapsing all Muslims and their politics into one inevitable path. However, dismissing it entirely would also be foolish—as the clarion call of “Muslim politics” does indeed provide a platform for various leaders to mobilize Muslims across numerous political and ethnic divides. Tibi explains this duality as follows: [A] subtlety in the study of the Islamic culture needs to be honored. The assumption that there exists a monolithic Islamic cultural standard is utterly wrong. In cultural terms, Islam can be found in a diversity of local cultures, however, a sweeping generalization of this observation leads to overlooking the basic elements of Islamic civilization. . . . Scholars who exclusively stress the diversity of Islam often ignore that Muslims, be they in the Middle East, South Asia, or sub-Saharan Africa, share a virtually consistent common world view.

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Bassam Tibi, Islamic Law/Shari’a, Human Rights, Universal Morality and International Relations, 16 HUM. RTS. Q. 277, 294 (1994). DALE F. EICKELMAN & JAMES PISCATORI, MUSLIM POLITICS 28 (1996). Id. at 153.

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Without taking this world view into consideration, one may fail to understand properly the obstacles of establishing the universal concept of human rights in the non-Western societies described as Islamic.30

While this quotation may have actually overstated the case, the argument remains that one may perceive the common trace of positive reaction to the couching of political goals in religious terminology across various Muslim societies. Eickelman and Piscatori argue that “[A] constant across the Muslim world is the invocation of ideas and symbols, which Muslims in different contexts identify as ‘Islamic,’ in support of their organized claims and counterclaims.”31 One such unfortunate invocation has been the recurring infringement on the rights of religious minorities. Perhaps in the mobilization of the symbolic capital of what constitutes ‘Islam’ is the concurrent underlying search for what ‘Islam’ is not —hence the utility of non-Muslims as a necessary counterbalance to the generation of Muslim politics. In this article, while the essentializing presumptions behind “Muslim politics” are rejected, the benefit of the notion of “Muslim politics” as a symbol containing a powerful platform for mobilization is not. It is this same symbolic capital of Islam that can be utilized to impact the rights of religious minorities. Though thus far this “capital” has been manipulated to the detriment of religious minorities, it can be recast in order to encourage respect for their rights. Reference is therefore intentionally made in this article to “Muslim” rather than “Islam” when referring to the body of “widely shared, although not doctrinally defined, tradition of ideas and practice”32 emerging from the believers of “Islam.” This is in order to distinguish such practices and ideas from “Islam” as a religion, and to avoid linkage between such practices and the theology of Islam.33 The only thing that is “Muslim” about such practices is the language employed to sustain them and the claim of their association to that religion.34 It is not the role of this author to judge the authenticity or theological merit of such assertions about proposed linkages to Islam as a

30. 31. 32. 33. 34.

Tibi, supra note 27, at 295. EICKELMAN & PISCATORI, supra note 28, at 4. Id. However, the term “Islam” is maintained where the original source being quoted has used this term, or when reference is being made to original religious texts or to those who are alleging a linkage between their practice and the religion of Islam. In the context of women’s rights under Islam, for example, emphasis is also placed on the “use of religion as national or communal cement and the control over women in the name of religion.” Marie-Aimee Helie-Lucas, Strategies of Women and Women’s Movements in the Muslim World vis-à-vis Fundamentalisms: From Entryism to Internationalism, in THE RIGHTS OF SUBORDINATED PEOPLES 251, 266 (Oliver Mendelsohn & Upendra Baxi eds., 1994).

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religion, but solely to examine the consequences of such assertions for nonMuslim religious minorities.

C. Muslim Practice and the Treatment of Religious Minorities Within this understanding of “Muslim politics” we are able to examine the Muslim record on the treatment of religious minorities, widely held assumptions about the questionable ultimate loyalties of non-Muslims, and the asserted justifiability of the unequal citizenship of non-Muslims in many Muslim states, resulting in their problematic de jure or de facto status. This underlying inequality and vulnerability primarily comes into focus at times of economic and political flux, when the underlying unease with the presence of non-Muslims within Muslim states is brought to the fore most vividly.35 This indicates either a fundamental discomfort with the nonMuslim presence or their propensity for being exploited in order to provide distraction in times of trouble. This exploitation may involve a range of actors, depending on the particularities of the case at hand. From the five cases given at the outset of this article it can be seen that the first and second examples resulted from individual action and not governments, the third related to mob action and the clear lack of response by governmental officials, and the fourth and fifth exclusively involved governmental action.36 These examples occurred at times of severe social disruption, heightened political tension, and periods involving serious societal disjuncture between liberals and conservatives. The gravity of the situation, as well as a historical pattern of discrimination against religious minorities, has led writers like Arzt to argue that such minorities in Muslim lands “deserve more support from international human rights movements.”37 Esposito has concluded that “the rights of non-Muslim minorities in an Islamic state remains an unresolved issue.”38 Further An-

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For example, see the work of Michael Fischer describing this phenomenon in Iran. He addresses the periodic attacks on Iran’s religious minorities as a “religiously phrased protest” or political protest in Islamic idiom. M.J. FISCHER, IRAN: FROM RELIGIOUS DISPUTE TO REVOLUTION 184–86 (1980). For the case of the thirteen Jews of Shiraz see Burns, supra note 1. Government culpability in the case of Ruhallah Rawhani is clear from the fact that he was executed in prison in Mashhad. For details see, Voice of America, Voice of America’s Editorial on the Execution of Bahá’í in Iran (27 July 1998), transcript available at www.uga.edu/ bahai/News/PRVOA1.html. Donna E. Arzt, The Treatment of Religious Dissidents under Classical and Contemporary Islamic law, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: RELIGIOUS PERSPECTIVES 387, 452 (John Witte Jr. & Johan D. van der Vyver eds., 1996). JOHN L. ESPOSITO, ISLAM AND POLITICS 291 (3d ed. 1991).

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Na’im has argued that it is “imperative that the precise implications of religious liberty and the rights of religious minorities be authoritatively discussed and settled within the Islamic tradition.”39 This is not to argue that there is just one universal Muslim position that is inherently against respect for the human rights of religious minorities, but that resort to any religious ammunition in the repression of others needs to be resisted. In this case it seems to be particularly preponderant and entrenched.

D. Debates Regarding Human Rights and Muslim Practice Ali delineates three main types of arguments in the discourse of human rights in the Islamic tradition: There are those (usually) Muslim scholars who engage in the dialogue as apologists for the Islamic tradition, and are unwilling to take on board the diversity within that legal tradition and will only use in their arguments, traditional, conservative opinions. Then there are writers who, though conceding some reference to human rights in Islam, argue that there is no worthwhile discourse to engage in. Such writers primarily use as examples the literal, traditional, simplistic approach of Muslim writers on the subject citing legal documents of countries such as Saudi Arabia and the Sudan which are not representative of the true spirit of Islam, being, in this writer’s opinion, unrepresentative authoritarian regimes. The category of scholars who write in a true comparative spirit willing to explore the diversity of Islamic jurisprudence and attempting to comprehend the concept of human rights in the Islamic tradition is a very small minority when compared to the total number of Islamic jurists.40

Ali accurately highlights the dearth of scholars writing in this “true comparative spirit” regarding human rights and Islam in general. Literature on non-Muslims under Muslim rule can be compared with literature on the human rights of women under Islam, because both bodies of literature can be classified into Ali’s three types: apologetic, rejectionist or, “true comparative spirit.”41 The literature focusing on the human rights of women under Muslim rule is increasing in depth, volume, and complexity, and has led to activism, scholarly debate, and efforts to remedy the patterns of abuse women suffer. In contrast, however, there is no comparable debate on

39. 40. 41.

Abdullahi A. An-Na’im, Religious Minorities Under Islamic Law and the Limits of Cultural Relativism, 9 HUM. RTS. Q. 1, 14 (1987). SHAHEEN SARDAR ALI, GENDER AND HUMAN RIGHTS IN ISLAM AND INTERNATIONAL LAW, EQUAL BEFORE ALLAH, UNEQUAL BEFORE MAN? 40 (2000). Id.

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religious minorities under Muslim rule.42 Such scholarly debate would be particularly timely because of the increasingly rigid challenge crystallizing against religious minorities, as will be examined below, as well as the invisibility of the pattern of abuse against them.

E. Human Rights of Non-Muslims Under Muslim Rule: Standards and Distinctions Having highlighted a thread of common abuses of the rights of non-Muslims in the Middle East, clarified the reasons for reference to Muslim politics, and discussed the dearth of serious debate on this issue, we turn to the question of what, if any, are the underlying factors for distinctions between Muslims and non-Muslims? Consideration of legal analysis and text in Islamic law reveals that the theoretical distinctions pertaining to the human rights situation of non-Muslims43 rest on two key questions: whether the nonMuslims are “People of the Book” (Ahl-al Kitáb)44 or not, and the even more fundamental distinction of whether the non-Muslim is considered an apostate—one who has converted from being a Muslim into another religion.45 Though the human rights of “People of the Book” also suffer infringement in the Middle East, reference to them in the Qur’an means their status can at least be theoretically established as protected people.46 The status of others is much more problematic. One writer holds that “according to Sharia, pantheists, pagans, and nonbelievers have no rights. In short, they have the options of conversion or death.”47 The legal

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43. 44. 45.

46. 47.

Human rights studies on the Middle East often raise the human rights of women as well as religious minorities in their analysis. However, there are numerous studies focusing solely on the human rights of women, but none focusing solely on the human rights of religious minorities. For a more traditional categorization of non-Muslims, see ABDUR RAHMAN I. DOI, SHARIAH: THE ISLAMIC LAW 426–27 (1984). Also known as “dhimmis.” Space does not allow this article to engage in a thorough discussion of Islamic law and the understandings about ranking systems between believer and nonbeliever that may be deduced from Islamic Law. For more information, reference can be made to Arzt, supra note 37, at 400–16; An-Na’im, supra note 39, at 11–13; ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICS 126–29 (2d ed. 1995). For an analysis of apostasy and freedom of religion or belief, see Nazila Ghanea, Apostacy and Freedom to Change Religion or Belief, in FACILITATING FREEDOM OF RELIGION AND BELIEF: PERSPECTIVES, IMPULSES AND RECOMMENDATIONS FROM THE OSLO COALITION (W. Cole Durham et al. eds., forthcoming). However, this “protected” status has been criticized for being embedded within a framework of inequality. Arzt, for example, refers to this as a second-class status and outlines the restrictions that remained on them. Arzt, supra note 37, at 414–15. DANIEL E. PRICE, ISLAMIC POLITICAL CULTURE, DEMOCRACY, AND HUMAN RIGHTS, A COMPARATIVE STUDY 161–62 (1999). He goes on to contribute a puzzling definition of “non believers,” stating

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consequences of apostasy often extend to civil death, being unable to inherit from either a Muslim or a non-Muslim individual, dissolution of marriage,48 the continued application of Muslim laws to the apostate, and the possible threat of the death penalty.49 It is not only theoretical distinctions in original texts that are at issue. Non-Muslims are also conspicuous in their absence from recent Islamic texts on human rights generated from modern day Muslim states. In fact, it can be noted that the spirit of the Qur’anic verse on “no compulsion in religion”50 finds little or no reflection in such texts. The three documents that will be examined here are the Universal Islamic Declaration of Human Rights from 1981, the Cairo Declaration on Human Rights in Islam from 1990, and the Arab Charter on Human Rights from 1994.51 The Universal Islamic Declaration of Human Rights omits reference to discrimination on the basis of religion or belief in its preambular paragraph 6(g)(i), which refers to establishing an Islamic order in which all human beings are equal and should suffer no “disadvantage or discrimination by reason of race, colour, sex, origin or language.” Furthermore, it contains no enforcement procedures for any of its provisions. The Declaration refers to equality before the law and to equal protection before the law in Article III(a), and Article XII(e) forbids inciting public hostility on the ground of religious belief, stating that “respect for the religious feelings of others is obligatory on all Muslims.” Its reference to the Right to Freedom, Article II(b), states, “Every individual and every people has the inalienable right to freedom in all its forms—physical, cultural, economic and political—and shall be entitled to struggle by all available means against any infringement or abrogation of this right.” Article X refers to the Rights of Minorities, and asserts that:

48. 49.

50. 51.

that “This concern regarding the treatment of nonbelievers is supported by the persecution of the Bahai in Iran and guest workers in Saudi Arabia.” It is not clear why monotheist Bahá’ís and particularly guest workers—many of whom are Christian—are categorized as “non-believers.” See id. at 162. For a discussion about apostasy, the marriage contract, and maintenance for the wife, see JAMAL J. NASIR, THE STATUS OF WOMEN UNDER ISLAMIC LAW AND UNDER MODERN ISLAMIC LEGISLATION 69 (2d ed. 1994). For the examination of a number of Egyptian State Council rulings on apostasy, see Ahmed Seif Al-Islam Hamad, Legal Plurality and Legitimation of Human Rights Abuses, A Case Study of State Council Rulings Concerning the Rights of Apostates, in LEGAL PLURALISM IN THE ARAB WORLD 219, 221–28 (Baudouin Dupret et al. eds., 1999). See Qur’an 2:256. UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS, 19 Sept. 1981, available at www.alhewar.com/ ISLAMDECL.html; CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM, ORGANIZATION OF THE ISLAMIC CONFERENCE, 5 Aug. 1990, available at www.humanrights.harvard.edu/documents/ regionaldocs/cairo_dec.htm; ARAB CHARTER ON HUMAN RIGHTS, COUNCIL OF THE LEAGUE OF ARAB STATES, CAIRO, adopted on 15 Sept. 1994, available at www.humanrights.harvard.edu/ documents/regionaldocs/arab_charter.htm.

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(a) The Qur’anic principle “[t]here is no compulsion in religion” shall govern the religious rights of non-Muslim minorities. (b) In a Muslim country religious minorities shall have the choice to be governed in respect of their civil and personal matters by Islamic Law, or by their own laws.

Both of these provisions, however, would seem to be contingent on prior recognition by the state of a community as constituting a recognized nonMuslim minority. Article XIII on the Right to Freedom of Religion is very vague, and states that “[e]very person has the right to freedom of conscience and worship in accordance with his religious beliefs.” Some potential problems are highlighted in Article XXIII, which is insufficient with regard to the Right to Freedom of Movement and Residence of non-Muslims. Article XXIII(a) states, “every Muslim shall have the right to freely move in and out of any Muslim country.” Section (b) continues, “No one shall be forced to leave the country of his residence, or be arbitrarily deported therefrom, without recourse to due process of Law.” This absence of any direct reference to non-Muslims may well be considered ominous, though the provisions of Article X(a) may go some way towards filling this void. The writings of Ann Elizabeth Mayer highlight the significance of the fact that the Arabic text of this Declaration is considered the original.52 The significant divergences between the English and the Arabic versions of this Declaration are considered intentional by Mayer,53 but merely as “suggesting likelihood that the drafters of the Declaration held divergent views,” by Rehman.54 There is no mention of the rights of non-Muslims in the Cairo Declaration on Human Rights in Islam, adopted by the Organisation of Islamic Conference. This Declaration was adopted in 1990 and presented to the Preparatory Committee of the UN World Conference on Human Rights in 1993 as a contribution to the Vienna World Conference.55 Article 1 is general in its claim that “[a]ll men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on grounds of race, colour, language, sex, religious belief.” However, this 52. 53.

54. 55.

As noted in the Explanatory notes of the Declaration in the English version. See MAYER, supra note 45, at 73–74. She also notes that the provisions of the Universal Islamic Declaration of Human Rights are “deliberately obscure” and that many of the rights contained in it are qualified. MAYER, supra note 45, at 102. For a thorough discussion, see id. at 108. For a note on the differences in the implications of the Arabic original and English translations, see id. at 132, 149–51. Javaid Rehman, Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and the Rights of Religious Minorities, 7 INT’L J. MINORITY & GROUP RTS. 139, 154 (2000). Contribution of the Organisation of the Islamic Conference, World Conference on Human Rights, Preparatory Committee, 4th Sess., U.N. Doc. A/CONF.157/PC/62/ Add.18 (1993).

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equality is arguably conditional because it is followed by the words, “True faith is the guarantee for enhancing such dignity along the path to human perfection.” Article 18(a) may implicitly cover religious minorities: “Everyone shall have the right to live in security for himself, his religion.” However, other statements may well cause concern among non-Muslims, such as Article 2’s claim that life can only be taken away for a Shari’ah prescribed reason56 and Article 10’s claim that “Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” The Arab Charter on Human Rights was adopted in September 1994 but has not yet entered into force.57 Article 2 provides that State Parties should ensure the enjoyment of all the rights within the Charter without any distinction on a number of grounds, including religion, to all individuals within their territory. Article 9 reiterates the equality of all persons before the law and their right to a legal remedy. Article 26 states that “[e]veryone has a guaranteed right to freedom of belief, thought and opinion.” Article 27 is the most expansive in relation to the human rights of religious minorities. It states that “[a]dherents of every religion have the right to practice their religious observances and to manifest their views through expression, practice or teaching, without prejudice to the rights of others. No restrictions shall be imposed on the exercise of freedom of belief, thought and opinion except as provided by law.” This final clause, “except as provided by law,” renders the whole provision vulnerable to this loophole without any limitation or restriction. Furthermore, Rishmawi has noted that the absence of any mention in the Charter of the right to change one’s religion is one of the “most glaring omissions.”58 She further comments that the Charter “minimises the scope of many of the rights it recognises.”59 This analysis is certainly highly relevant to the reduction of Article 27’s mandate of religious freedom to a flexible standard left to the whim of national legislators. The above discussion demonstrates how recent decades have generated what Arjomand has termed an official “Islamic alternative”60 that clearly

56. 57. 58. 59. 60.

See UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS, supra note 51. The concern here being the possibility that this includes apostasy. ARAB CHARTER ON HUMAN RIGHTS, supra note 51, art. 42(b) (according to this article, the Charter will enter into force two months after the seventh ratification has been registered with the League of Arab States). Mona Rishmawi, The Arab Charter on Human Rights: A Comment, 10 INTERIGHTS BULL. 8, 8–10 (1996). Id. This term is used by Arjomand to describe how a transnational Islamic resurgence rejected the universality of human rights and embodied such rejection in particular texts

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charts a deterioration of international human rights standards regarding freedom of religion or belief. It is of particular concern that this weakening is increasingly and consistently established in legal and political “Islamic” documents that either do not mention or do not adequately cater to the human rights of non-Muslims.61 This has led to the largely invisible condition of systemic discrimination against non-Muslims. Such systemic discrimination and inequality of condition has been described as “the most damaging form of discrimination”62—an apt description of the condition of non-Muslims in the Middle East.

III. THE VIABILITY OF SECULARISM’S SOLUTION A. Secularism as the Framework of Guarantee for the Human Rights of Non-Muslims in the Middle East It is observances such as those above that have led many to the conclusion that only the implementation of a secular framework, through removing religion from the Middle Eastern public sphere as a whole, can hopefully drain religion of its potential to serve as the basis of human rights abuse. In the Middle East context, is secularism the solution to the dilemma of the human rights of religious minorities in the region? Would the human rights record of Middle Eastern governments improve if they were based on secularism, or does this neglect some of the complexity of the relationship between “Islam” and human rights? This author concurs with the argument that “human rights as a value can be incorporated within a religious framework (including an Islamic framework),”63 and that “[i]t is more fruitful in thinking about human rights to draw the dividing line elsewhere: not between a secular and non-secular world-view.”64 This article does not rest on the assumption that human rights

61.

62. 63. 64.

such as the Cairo Declaration on Human Rights in Islam. See Said Amir Arjomand, Religious Human Rights and the Principle of Legal Pluralism in the Middle East, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECTIVES 331, 345–46 (Johan D. van der Vyver & John Witte, Jr. eds., 1996). For a discussion of how more recent Islamic texts, such as the CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM, supra note 51, and the UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS, supra note 51, are inadequate in protecting the rights of non-Muslims, see MAYER, supra note 45, at 84–85, 131. Rebecca J. Cook, Women’s International Human Rights Law: The Way Forward, in HUMAN RIGHTS OF WOMEN, NATIONAL AND INTERNATIONAL PERSPECTIVES 3, 9 (Rebecca J. Cook ed., 1994). KATERINA DALACOURA, ISLAM, LIBERALISM AND HUMAN RIGHTS 203 (1998). Id. at 39.

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standards necessarily need to be “secularized” in order for them to be rendered effective.65 This may, however, gloss over the complexity of the issue of what is meant by “secularization” in this context. If the claim is for the independence of the judiciary and respect for human rights regardless of religious affiliation, then clearly this author would support such manifestations of secularization. However, the outright rejection of the possibility of garnering support for human rights from within a religious framework is not supported. It has been asserted that: [T]he issue of secularism lies at the heart both of the justification of human rights and democracy, and of the difficulties that Islamic societies face in formulating and implementing policies in this regard. . . . The central issue is not . . . one of finding some more liberal, or compatible, interpretation of Islamic thinking, but of removing the discussion of rights from the claims of religion itself.66

Price disputes this position with one compelling argument, that “[s]ecular authoritarian regimes in Muslim countries have also not been generous in granting civil liberties to citizens. It is likely that the spread of democracy, not the secularization of politics, will sharply reduce these practices.”67 The examples of widespread human rights abuses in Syria and Algeria go some way to supporting this point.68

B. Secularism’s Quick Fix Solution This article does not, therefore, promote secularism as a “quick fix” solution to human rights challenges in the region, primarily due to the pragmatic reasons that will now be addressed. This article instead emphasizes the

65.

66. 67. 68.

OLIVIER ROY, THE FAILURE OF POLITICAL ISLAM 199 (1999). Roy adds an interesting twist to those who starkly contrast “Islam” with “secularism” in arguing that “Islamism is actually an agent in the secularization of Muslim societies because it brings the religious space into the political arena: although it claims to do so to the benefit of the former, its refusal to take the true functioning of politics and society into consideration causes it instead to follow the unwritten rules of the traditional exercise of power and social segmentation. The autonomous functioning of the political and social arenas wins out, but only after the religious sphere has been emptied of its value as a place of transcendence, refuge, and protest, since it is now identified with the new power.” Id. FRED HALLIDAY, ISLAM AND THE MYTH OF CONFRONTATION, RELIGION AND POLITICS IN THE MIDDLE EAST 157 (1995). PRICE, supra note 47, at 174. For details see, for example, the Human Rights Watch Annual Reports, the latest one being HUMAN RIGHTS WATCH, HUMAN RIGHTS WATCH WORLD REPORT 2003 405–96, available at www.hrw.org/wr2k3/mideast.html (includes links to country sections providing more details).

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possibilities of a struggle for human rights fomulated within a Muslim framework. The imposition of some kind of absolute secularism as the prerequisite to any progress would axe the dialogue between “Islam” and human rights to an early death. If one looks at the situation of women in Saudi Arabia, for example, it is clear that the Islamic framework is the only option at the moment, and that the belief that more equitable recognition of their rights can be founded on Islamic credentials is fueling a new generation of women in the Kingdom.69 In the case of the human rights of women, Ali argues that the emancipatory writings of scholars can amount to a “political lever and as a point of reference, when attempting to articulate specific demands by women in Muslim societies.”70 Ali calls on strategic and theoretical arguments for an emancipatory struggle from within a Muslim framework. She argues that a struggle based entirely within a secular framework would not only be extremely unlikely to succeed, but could alienate and exclude women, and even unleash extremist reaction.71 Could this methodology also hold promise for the human rights of religious minorities?

IV. COMPARISON BETWEEN THE HUMAN RIGHTS OF THE MIDDLE EAST’S WOMEN AND ITS RELIGIOUS MINORITIES A. What Next? Responses for Rights in the Middle East Parallels can be drawn between the attempt to promote the rights of religious minorities and other campaigns for human rights in the Middle East. All such campaigns struggle against common challenges. These challenges include the abuse of the frameworks of religion and culture and of states courting popular sentiment by taking a conservative stance against demands for human rights. The concerted campaigns for the rights of women in the Middle East in recent years offer a very useful model for analysis in light of efforts to promote the rights of religious minorities in the Middle East.

69. 70. 71.

See Mai Yamani, Muslim Women and Human Rights in Saudi Arabia, Aspirations of a New Generation, in THE RULE OF LAW IN THE MIDDLE EAST AND THE ISLAMIC WORLD, HUMAN RIGHTS AND THE JUDICIAL PROCESS (Eugene Cotran & Mai Yamani eds., 2000). ALI, supra note 40, at 284. Id. at 283–84.

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B. Levels of Engagement While “women participate, albeit to a limited extent, in the contest over [Islamic] authority,”72 religious minorities have largely been either nearly excluded or only allowed to participate in closely scrutinized and managed processes of limited cooption.73 Unless the “politics of silence” itself is considered as a form of engagement, then the space permitted religious minorities in Muslim countries for participation in the political life of the community—even its cultural life—has been severely limited in most Middle Eastern countries. Each country may be able to point to the token member of a religious minority community in a position of prominence—the Christian Foreign Minister, the Ahmadiyya UN representative, the Coptic diplomat, decades ago. However, tokenism is not a signifier of the equal engagement and acceptance of communities into the mainstream. In fact, tokenism is precise proof of the minority community’s absence form the mainstream. This is not to suggest that there is absolute exclusion of religious minorities, as no community can live decades, centuries, or millennia amongst a majority community without at least some tacit understandings and bargaining being established between them.74 However, bargaining in such a context is not based on full respect for human rights and equal dignity with the rest of the community. Basically, religious minorities often lack agency. That is, religious minorities in the Middle East are largely denied the opportunity of intervening, or choosing freely not to intervene, in events. They are unable to make noticeable and sustained contributions to the outcome of events and structures that influence them, whether in the legal, political, or cultural sphere.

72. 73. 74.

EICKELMAN & PISCATORI, supra note 28, at 76. See ELIZ SANASARIAN, RELIGIOUS MINORITIES IN IRAN 71 (2000). An interesting example of the creative interactions that are established between nonMuslim religious minorities living in the Muslim world comes from the detailed study of the applications of a Jewish family to Muslim courts in Yemen spanning four decades in the early 1900s, despite the existence of Jewish courts. As Hollander argues, Litigants would apply to a Muslim court when opponents refused to appear in the Jewish court or when unsuccessful there. Indeed, individuals by-passed Jewish courts altogether and initiated proceedings in Muslim courts when the law applied there was advantageous to them.

Isaac Hollander, Halakha, Shari’a and Custom: A Legal Saga from Highland Yemen, 1900–1940, in ISLAMIC LAW, THEORY AND PRACTICE 157, 157 (Robert Gleave & Eugenia Kermeli eds., 1997).

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C. From Mobilizing Women to Emancipating Religious Minorities What has been the record of those campaigning for the status of women in these same countries, and who have campaigned for their rights through such internal religious discourse? What are the lessons for religious minorities from this experience? One vivid realization that has emerged from an engagement of the issue of women under Islam and other feminist analysis has been an emphasis on the positive duty of states. Such reasoning calls for the accountability of states for the actual treatment that is meted out to women in practice, not just the theoretical chimera of their legal equality. In the case of the battery or murder of women in the context of religious laws, for example, “a state’s failure to act in these types of abuse cases makes the state complicite . . . because the state has failed to provide an effective remedy for the systematic violation of human rights.”75 Howland argues that the affirmative duty of states in such circumstances stretches to outlawing practices that systematically violate liberty and equal rights, providing legal remedies for such violations, and ensuring women’s access to and knowledge of these remedies.76 Similarly, the excuses that states have put forward, such as that their laws offer full equality regardless of religious affiliation, or that they repress religious minorities in order to protect them from the majority, are not acceptable in light of international human rights standards. The state’s responsibility stretches to the need to provide legal remedies and to outlaw practices that violate minorities’ rights. When the state does not fulfill these responsibilities it is complicitous in all continuing violations. Another strategy feminists have used is that of highlighting differences in Muslim cultural practices for their own advantage.77 By establishing international links and exposing the diversity of the treatment of women in various Muslim countries, a telling disjuncture is created between mere cultural practice and cultural elements that are presented as authentic Muslim religious practices. “The myth of one homogeneous Muslim world explodes, and the differences appear.”78 In the case of religious minorities,

75.

Courtney W. Howland, Women and Religious Fundamentalism, in WOMEN AND INTERNAHUMAN RIGHTS LAW 533, 615 (Kelly D. Askin & Dorean Mo Koenig eds., 1999). Id. at 615–16. A particularly interesting response in this context has been the setting up of the network Women Living Under Muslim Laws (WLUML). This network notes in its mission statement that “laws formally considered Muslim vary, sometimes radically, from one cultural context to another.” These laws, in combination with customary laws and practices, are recognized as vitally important to women, particularly in family and personal life. WLUML notes that “[t]hese affect women disproportionately and usually in a manner that undermines their rights and autonomy.” See WOMEN LIVING UNDER MUSLIM LAWS, ABOUT WLUML, available at www.wluml.org/english/about.shtml. Helie-Lucas, supra note 34, at 273. TIONAL

76. 77.

78.

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the goal would not only be to demonstrate this diversity internally to the discriminated group (in this case, religious minorities), but also to demonstrate the diversity to the community at large. Further consequences of such networks for women have been the strengthening of resistance, the establishment of solidarity, and the provision of empowerment from the sense of unity. Religious minorities, too, could strongly benefit from such solidarity. The pattern of minorities internalizing the inferior status imposed on them over time, and thus being coopted, is a well-established phenomenon. This can act as a self-imposed limitation, impoverishing the rights of religious minorities in the Middle East yet further. The need for solidarity networks across borders and engagement in discourses that can liberate creative but peaceful patterns of resistance are therefore highly necessary. The risk, however, is that like many women under Muslim rule religious minorities in the Middle East no longer have the energy or audacity for peaceful resistance. This may be described as the emergence of a state of false consciousness and internalized oppression by victims. In his study, Cohen discusses how denial can be a “habitual coping strategy.” He examines how intolerable facts and images shift from being disturbing to becoming normal and tolerable. While his excellent study of the denial and “normalization and routinization” of the intolerable is focused on perpetrators of or bystanders in atrocities, it raises issues that are all the more pertinent to victims themselves.79 The easier option of adapting to the existing circumstances, however constrained, or of escaping the repression through immigration, has proven tempting for many over the decades. Resistance towards an unsubstantiated goal may prove too risky to such communities in the final analysis. Adapting to the circumstances, unfortunately, can prove vastly preferable to taking a stance.

D. Strategies and Frameworks Adopted Women’s rights campaigners who have adopted Muslim frameworks have strongly rested on the creative potential of efforts at revising and reforming Islamic law towards liberal interpretations. However, Anwar has reservations about this methodology of articulating human rights from within an Islamic perspective. Her main criticisms are that such reformers fail to articulate a theological basis for a secular state, that they are too committed to the authority of the Qur’an and hadith, that they seriously hamper the

79.

See STAN COHEN, STATES OF DENIAL, KNOWING ABOUT ATROCITIES AND SUFFERING 54 (2001); Nazila Ghanea, Repressing Minorities and Getting Away With It? A Consideration of Economic, Social and Cultural Rights (unpublished manuscript, on file with author).

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capacity of Muslims to critique their own norms by idealizing early Islamic history, and that they are selective in drawing from the past for traditions and practices that support their goals. She argues that this puts reformists in line with fundamentalists in a number of crucial ways and, in the long-term, this model hinders the possibility of a true, stable and equitable model of Islam.80 However, she also concedes that choosing to opt out of the religious framework also carries its own costs, as this option “may lack the capacity to speak to the hearts of the lay masses, including the unlettered ruralists, the urban working class, and Western-educated Muslims seeking to reconnect to their spiritual roots.”81 Afshar supports the choice of the religious framework while acknowledging the compromises it entails. Her stance is that the analysis of Muslim women thinkers seeking a return to a purer original Qur’an will facilitate “discarding the traditions which have hardened into a profoundly anti-female ideology.”82 There is a methodological contradiction here. Why refer to Islam as the basis of rights if practice across the Muslim world shows contradictory diversity?83 This leads us to the distinction highlighted by Helie-Lucas, that feminists who feel the need to refer to the Qur’an to justify their stands belong to two important currents: “the believers, for whom Islam must constitute its own theology of liberation, and the unbelievers who operate at the level of strategic alliances.”84 Clearly, religious minorities would choose the option of discourse within the Muslim framework for the latter strategic reason. Their current perilous status lends force to the utility of such an approach. Any other secular and political activism would only serve to reinforce the allegations of disloyalty that are already routinely targeted toward minorities. Furthermore, religious minorities do not have the numbers or the wider support to compete on these grounds. Creating the space for their acceptability within the religious framework and traditions of the majority therefore provides a far more amenable option, at least at the present time.

80. 81. 82. 83. 84.

Ghazala Anwar, Reclaiming the Religious Center from a Muslim Perspective: Theological Alternatives to Religious Fundamentalism, in RELIGIOUS FUNDAMENTALISMS AND THE HUMAN RIGHTS OF WOMEN 303, 304–05 (Courtney W. Howland ed., 1999). Id. at 305. Haleh Afshar, Fundamentalism and Women in Iran, in THE RIGHTS OF SUBORDINATED PEOPLES, supra note 34, at 276, 277. Helie-Lucas, supra note 34, at 274. Id. at 267.

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E. Where the Comparison Ends Having delineated the variety of challenges and lessons to be extrapolated from efforts to enhance the rights and status of women under Muslim rule, we should remain cognizant of the limitation of such an analogy. The most pertinent differential is that of population. Whereas women compose half or more of the population of all the Middle Eastern countries under discussion, the population of non-Muslim religious minorities stretches from about 10 percent in Egypt to about 1 percent in the Islamic Republic of Iran. Women’s larger numbers allow broader and stronger coalitions in favor of the cause of the human rights of women. This makes their case more compelling, but perhaps also more challenging and intrusive, than that of religious minorities in the Middle East. A second self-evident differential is that Muslim women are obviously believers, and this leads to very different potentialities with regard to their textual and social accommodation within the wider Muslim community. However, analogizing the efforts towards the advancement of women’s human rights to the struggle for the rights of religious minorities continues to highlight pertinent lessons. Both groups have historical and textual ambiguities weighted against them by conservative religious interpretations of Islamic texts and traditions. This offers the possibility of emancipatory interpretations in favor of both. In both cases exposing the diversity of practice within different parts of the Muslim world and in different periods of history offers a potent way of challenging ingrained assumptions. The majority has distored social structures in order to oppress both women and religious minorities. This structure is understood as “patriarchy” when discussing the oppression of women. The hierarchical social structures ingrained against religious minorities can be seen as analogous to patriarchy. More simply, the two groups are faced with very similar disadvantages and discrimination in terms of their value as a legal witness, their inheritance rights, and their ability, or rather their inability, to climb the social ladder towards various public and leadership roles rather than accepting merely to exist in the private realm. Hassan’s call to the challenge of resisting abuse of the human rights of women is equally applicable to that of religious minorities. “Muslim culture has reduced many, if not most, women to the position of puppets on a string, to slave-like creatures. . . . Despite everything that has gone wrong with the lives of countless Muslim women through the ages due to patriarchal Muslim culture, I believe strongly that there is hope for the future.”85

85.

Riffat Hassan, Rights of Women Within Islamic Communities, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE, supra note 37, at 361, 386.

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F. Towards a Synthesis of the Two Campaigns Treading the human rights path within the framework of Islam does not provide a smooth and unproblematic option. In fact, it has been described as “tortuous.”86 However, the strides made by academics and activists in challenging the rights of women, indicates a promising path for religious minorities under Muslim rule. Both share the challenge of withdrawing the monopoly of interpretation from the political or religious leadership and providing the space for the exploration of alternative interpretations beyond traditional and authoritarian perspectives. Both religious minorities and women under Muslim rule share many similar human rights infringements— the denial of leadership, inequality in legal standing, and levels of exclusion from public life. Both face the challenge of capturing the limelight towards “rational, egalitarian and justice-oriented ideals,”87 resting on the premise that there is no great division between an authentic Islamic view and respect for their human rights. It is therefore particularly regrettable when those active in countering repressive measures against women in Muslim states are indifferent, even hostile, to extending this insight to the situation of religious minorities. One example comes from an academic who stridently defends the justifiability of the persecution of a religious minority community while rejecting the subjugation of women in the name of Islam.88 While in the long-term other less constrained options may emerge for religious minorities in the Middle East, this article suggests engagement with the discourse of reform within the framework of Muslim legal resources to provide the most promising first step along the path of their emancipation and towards enjoyment of their full and equal human rights.

V. CONCLUSION This article calls for a more attentive study of the human rights situation of religious minorities in the Middle East. It also calls for an emancipatory interpretation of Islamic traditions and laws with regard to religious

86. 87. 88.

Arzt refers to the modern relationship between Islamic law and international law as “tortuous.” Arzt, supra note 37, at 423. JAMILA HUSSAIN, ISLAMIC LAW AND SOCIETY, AN INTRODUCTION 58 (1999). This comes from Azar Nafisi’s chapter, in which she champions the rights of women in Iran through using the example of a religious figure from Babí-Bahá’í history, but simultaneously argues that the persecution and destruction of Babís and Bahá’ís was and is justified! See Azar Nafisi, Tales of Subversion: Women Challenging Fundamentalism in the Islamic Republic of Iran, in RELIGIOUS FUNDAMENTALISMS AND THE HUMAN RIGHTS OF WOMEN, supra note 80, at 257, 259.

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minorities, analogous to the emerging literature and activism in the field of human rights of women under Islam. While there have been some references to the situation of religious minorities under Muslim rule, this coverage has been insufficient in light of the complexities and range of factors facing them. Many of the academic considerations of religious minorities in the Middle East have rested on apologetic, polarized, or largely empirical perspectives. A more comprehensive, thorough methodology, and more attention from both scholars and activists is long overdue in this field. This article has analyzed the dual possibilities and the double-edged sword of mobilizing Muslim resources towards both the repression and accommodation of religious minorities in the Middle East. While the former has unfortunately become a well-established phenomenon, the latter is being proposed as a route comparable to existing struggles towards women’s human rights in the Middle East. The role of Muslim politics towards social mobilization is offered as a useful platform and antidote to repressive interpretations of Islam, but can such an opposition be mobilized in defense of non-Muslim communities living under Muslim rule? Many Middle East experts may be reticent to suggest a liberation movement for the benefit of religious minorities living within Muslim countries through engaging in the competition over “Islamic” symbols and their interpretation. This is due to the irony that for so long religious minorities have suffered under the guise of those self-same “Islamic” symbols and language. Religious minorities may have long concluded that Islam does not possess the willingness or capacity to uphold their rights. In doing so, minorities have perpetuated the reification of “essential differences” and fed into the hands of those who are politically manipulating religious difference to reinforce their own popularity. Such a conclusion contributes to entrenching the gap between Muslim and non-Muslim. The religious minorities have become locked in a situation of being outsiders to the religious symbolism and interpretation under which they are presently being repressed, but which also holds the most potent key to guaranteeing their rights and status. The extent to which religious minorities can be taken into consideration or become participants within the project of encouraging the reexamination of Muslim resources about tolerance between communities remains a challenging question. Can religious minorities adopt Muslim frames of reference strategically in order to play a more mainstream role, or are they to remain pawns and bystanders to the processes of nation building, democratization, and fostering a culture of human rights within their countries? The aim is not to push religious minorities to dominate Islamic discursive frameworks, but rather to examine whether they can be participants in this process alongside their compatriots. If successful, the benefactors of such a process would be both Muslims and non-Muslims alike.