The Revised Arab Charter of Human Rights (hereafter the Charter) stands as the most recent and up-to-date formulation of ‘the Islamic perspective’ on human rights that we currently have, so, assuming that it is thus the most reflective of the majority ‘Islamic’ view on human rights, this article will consider how it has improved upon its earlier Islamic counterparts, as well as some of the issues that need to be resolved in subsequent amendments, namely retraction of rights, and freedom of thought and debate and absolutism.
The Charter’s preamble commendably treats as fundamental the instilling of respect for human rights norms and fostering of a sense of belonging to the wider human family in tolerance and openness to ‘the other’. Provided that this genuinely reflects the consensus of the Arab states’ values (which is contestable), then this promises the genuine and growing internalisation of the human rights enterprise beyond the ‘West’.
Derogation and the Death Penalty
Clearly in response to criticisms of its predecessors and to its original vagueness, Article 4 of the Charter commendably addresses the issue of the extent of derogation (whereby human rights are temporarily/indefinitely restricted in order to preserve national security in emergency cases) and, by careful choice of its wording, limits the loopholes or exceptions that can be exploited by absolutely rejecting that derogation should apply to articles:
• 5 (on the inalienable right to life under any circumstance) and 8 (protection against torture);
• 9 (not to subject someone to medical and scientific experimentation without prior consent);
• 10 (absolute condemnation of slavery);
• 13 (the right to a free and fair trial by competent judges);
• 14.6 (no arbitrary arrests);
• 15 (no administration of penalty prior to consideration by law);
• 18 (right to pardon of legitimate inability to pay debts);
• 19 (no repeated trials over the same offence);
• 20 (distinguishing between the deprived of liberty and the convicted and treating each accordingly with the levels of dignity and respect appropriate- with focus on rehabilitating rather than demonising individuals);
• 22 (recognition of personhood before the law);
• 27 (no arbitrary exile, restriction on leaving one’s resident country or forced residence in a particular country);
• 28 (the right to political asylum of politically persecuted individuals unless they are being persecuted for an offence “under ordinary law”. Individuals granted political refugee status have the right not to be extradited, in other words, not to have persecutions waged against them in the political regime they fled be translated into an appropriate punishment according to the laws of the land of the country providing them asylum);
• 29 (the right to nationality and no arbitrary revocation of current nationalities, or prevention from acquiring another); and finally
• 30 (freedom of thought, conscience and religion, restrictions applying only in terms of the limitations of ‘Shari’ah’ law/laws).
Disappointingly, however, the Charter, read in its entirety, offers a contradictory position on the death penalty. As noted above, Article 4 clearly states that no derogation under any circumstance is to be allowed pertaining to the inalienable right to life is professed in Article 5. Article 6, however, makes an exception to the ‘most serious crimes’, without listing which crimes fall under this category. Article 6 holds that a competent judiciary alone has the power to administer so serious a punishment, and that even in conviction, the right to seek pardon or commutation (in other words, reduction in the severity of punishment, without completely doing away with punishment altogether) must always be made available.
Despite these controls, however, normalisation of state murder remains problematic because of the possibility of its manipulation by a given state and on account of this approach’s failure to explore steps for the rehabilitation of individuals and their reintegration into society, in favour of callous expediency which does not tackle the root cause of social ills. The only way to definitively prevent this from happening is to reiterate the inalienability of the right to life, which does not necessarily undermine religious scripture’s decrees completely. The contradiction in the Arab Charter does, however, undermine its sincerity, given its use of misleading language. After all, if one supposedly inalienable right can be compromised, why not any of the others the Charter purports to hold as inviolable?
Freedom of thought, speech and debate
The main issue in the Charter is Article 30, which superficially allows the right to freedom of thought, conscience, religion (or at least claims to in theory). The fact that this is out of line with the reality of the matter is reflected by the proceeding constraint that all of these rights should be granted and that “no restrictions may be imposed on the exercise of such freedoms except as provided for by law”, the choice of the word ‘law’ here possibly being used to disguise the fact that it is not secular, but rather derived from theological jurisprudence and supposed ‘Shari’ah’ sources that are being consulted as supremely authoritative.
This is assumed from the Arab Charter’s failure to denounce the Cairo Declaration’s Articles 24 and 25, that claim that “[a]II the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari ‘ah” and that “[t]he Islamic Shari’ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration”, or at least highlight the problems that could arise from taking such an approach and issues such as how to distinguish ‘true Shari’ah’ from its ‘imposters’. Even if this were possible, however, infringements of the rights of individuals and the coercive means that are usually employed to silence dissent, and how this prevents genuine, open, and mutually enriching debate from taking place in the public sphere, need to be justified.
The consequences of this approach to maintaining social cohesion and order is that we are essentially left with a standardised society whereby citizens can only imperfectly coexist with their own mirror image. We are not presented with a tolerant society that is amenable to peaceful coexistence with those of different political, denominational/religious or any other ideological persuasion. So long as this is the case, any hope of lasting peace and conflict resolution is jeopardised. Hence, this issue needs to be addressed with utmost urgency, not least because at the heart of the issue is the conceit that humans ever monopolise the objectively true interpretation of Islam’s scriptural corpus, which is arguably the root cause of many social and political ills in the Middle East today, or at least a key contributor to such conflicts. It is precisely to absolutism that the focus of this article will now briefly turn before concluding.
Disappointingly, the Charter echoes the absolutist rhetoric found in its precursors in its preamble in stating that “the Arab homeland is the cradle of religions and civilizations whose lofty human values affirm the human right to a decent life based on freedom, justice and equality”. It further encourages pride in the assumed responsibility Islam’s legacy has for the “humanitarian values and principles that the Arab nation has established throughout its long history, which have played a major role in spreading knowledge between East and West”, so, as the wording of the Charter claims “making the region a point of reference for the whole world and a destination for seekers of knowledge and wisdom”.
The Charter’s absolutism mirrors the Cairo Declaration’s insistence on Islam’s “civili[s]ing” role and superior status of the Ummah as the “best nation” as a “universal and well-balanced civili[s]ation”, further entailing that Islam “provides solutions to the chronic problem of this materialistic civilization [western capitalism]”, which reinforces the demonising rhetoric levied against the ‘Western’ other. The Universal Islamic Declaration of Human Rights (hereafter UIDHR) is also guilty of this, in that it affirms that Islam gave mankind the “ideal human rights code”, and more- fourteen centuries before the ‘Western’ counterpart came into being (UIDHR, 1981:1). However, this is intellectually dishonest, as Islamic civilisation itself owes credit where it is due; its golden age did not develop in a vacuum.
Understood properly, scripture is very fluid, despite the tendency to treat it as a completely unchanging document of divinely-inspired thought, which in turn heightens the danger of making a compelling case for theological legitimacy of tyrannical political regimes under the excuse of upholding Allah’s will through government, itself contradicting the legitimate Islamic case for consultative government. Another danger is the naïveté of granting that “divine law eliminates social evil”, given that- when read in its entirety, the UIDHR stresses that “human rationale alone cannot guide” (UIDHR, 1981: 3-4).
What is important to understand here is that we cannot afford to fall from one conceit to another- human rationality is of course, fallible, and as such, far from placing our faith in Shari’ah, true appreciation of human finitude would make us question whether what we understand to be Allah’s will is actually what we think it to be. This is something we cannot take for granted, as to do so steers dangerously in the direction of assuming Allah’s authority. For this reason, the limitations imposed on Islamic charters by Sharia’ah are at best mostly arbitrary and beg the question of which interpretation within the diverse ideologies and interpretations within ‘Islam’ is the objective interpretation, if any at all so exist. As such the defensibility of limitations on freedom of religion, information, speech/public debate, and sexual orientation is questionable. Justifications need to be provided before legislating what is otherwise- to a higher or lower degree- arbitrary interpretations of morality.
Islamic Council, (1981) The Universal Islamic Declaration of Human Rights, London: The Islamic Council
Also available on: http://www1.umn.edu/humanrts/instree/islamic_declaration_HR.html (Accessed: 19/11/14)
The Cairo Declaration of Human Rights (1990), Available on: http://www1.umn.edu/humanrts/instree/cairodeclaration.html (Accessed: 8/10/14)
The Revised Arab Charter of Human Rights (2004), Available on: http://www1.umn.edu/humanrts/instree/loas2005.html (Accessed: 8/10/14)