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In-Depth:
Justice for a Lawless World? Rights and reconciliation in a new era of international law
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 Download this in-depth report
Part I 6.36 MB
Part II 2.40 MB
- Professor Noam Chomsky
- ICC Chief Prosecutor Moreno Ocampo
- Samantha Power, Professor of Practice in Human Rights Policy
- Juan Mendez ,President of the International Center for Transitional Justice
- Justice Geoffrey Robertson Q.C.
- Dr Fanie du Toit, Programme Director for Educating for Reconciliation at the Institute for Justice and Reconciliation in South Africa
- Abdullah An-Na`im, Ph.D, Charles Howard Candler Professor of Law at Emory University, Atlanta, GA, USA
- Augustin Nkusi, the Director of the Legal Support Unit, National Service of Gacaca Jurisdictions, Rwanda
- Benjamin Gumpert, counsel representing Justin Mugenzi, who is currently on trial at the International Criminal Tribunal for Rwanda
- Hanny Megally, Director, Middle East and North Africa Program, International Center for Transitional Justice (ICTJ)
- Paul van Zyl, Country Programme Director at the International Center for Transitional Justice (ICTJ)
- Johnston Busingye, Secretary General of the Ministry of Justice in Rwanda
- Dennis McNamara (Special Adviser on Internal Displacement to the UN’s Emergency Relief Co-ordinator and Director of the OCHA Inter-agency Internal Displacement Division) on the rule of law
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GLOBAL: Interview with Abdullah An-Na`im, Ph.D
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 Abdullah An-Na`im, Ph.D
Credit: Prof. Rosalind Hackett, Emory University |
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An internationally recognised scholar of Islam and human rights, and human rights in cross-cultural perspectives, Professor An-Na'im teaches courses in human rights, religion and human rights, Islamic law, and criminal law.
QUESTION: Do you agree that personal freedom is a western value?
ANSWER: No. The fact that human rights are due to every human being means that these rights are by definition common to everyone. If human rights are western, then they are not universal, which contradicts the concept of human rights itself. I reject the idea that the authorship of human rights is western or European. The so-called antecedents, being the product of the French Revolution and the American Bill of Rights, were concerned with the citizens of those countries, not with the rights to be accorded to all human beings. In that context, it is also telling that the European Enlightenment legitimised colonisation.
The Universal Declaration of Human Rights was the beginning of the project for defining that concept. We must look at it in terms of both concept and content. The concept is that there are fundamental human rights due to human beings regardless of sex, gender, colour or faith. The content of these rights is a product of development. The human rights paradigm is the child of the UN Charter on Human Rights. Before the Charter, many peoples of Africa and Asia had no voice because of colonialism. The UN Charter initiated the process of decolonisation which enabled colonised people to be true subjects of international law, and thereby contribute to the continuing project of defining human rights. As African and Asian countries became independent, they affirmed the universality of human rights in their own national constitutions, and through participation in the drafting and ratification of human rights treaties. That way, the universality of human rights started as a vision under the UN Charter and Universal Declaration, and gradually became more truly universal as more people around the world became part of the process of defining and implementing these rights.
The post-colonial human rights era should be looked at as both an end and a means. The end is equal human dignity for all human beings, but the means is that of creating a space for human dignity to be affirmed. And it must be affirmed by the individual person everywhere. This is the process by which the universality of human rights is being realised in practice, out of the vision and project started by the UN in the 1940s.
Q: What do you say to the fact that Saudi Arabia only accepted the Charter insofar as it did not conflict with Shari’a Law?
A: It was the ruling regime of Saudi Arabia, a monarchy, which took that position, and not the people of Arabia by their own free choice. If you were to ask a woman of Arabia without inhibition, and free from any fear of retribution, she would lay claim to the Charter on Human Rights. But there are certain ideological elites who claim to speak on behalf of peoples. A certain elite made that decision in the name of people who continue to be victims of human rights violations. That position is also taken in the name of religion and culture, but it is self-appointed guardians of religion and culture who claim that voice, to the exclusion of other voices among believers and within the culture. This is true of many religious and cultural traditions. But human rights are the means by which people come to assert their own voice, their own interpretation of religion and culture, and thereby affirm the universality of all human rights, including the right to understand Shari`a as supportive, and not hostile to, human rights.
The human rights concept is not a western construct (and on that point I think western is an unhelpful and misleading adjective in this debate). There is an over-simplification of an enlightened, pluralistic west, versus a despotic and authoritarian east. The colonisation of Iraq by the US and the UK did a tremendous disservice to the possibility of human rights. It clearly shows lack of commitment to human rights by leading western powers. The invasion of Iraq by these western powers in 2003 is colonialism because it was taking over sovereignty of a country and its people my military conquest without legal justification, which is the classical definition of colonialism. That invasion was in effect a total repudiation of the UN Charter which prohibits the use of force except in self-defense or as authorised by the Security Council, and neither of those grounds applied to Iraq in 2003. How can those leading western countries repudiate international law as the foundation of human rights, and yet the claim continues that human rights are western.
Q: How likely is it that there will be an accepted ijtihad in Shari`a (Islamic law)?
A: I think this is highly probable, not only likely. Ijtihad is the application of human reason in the interpretation of Shari`a, which is necessary for the possibility of being Muslim. But as Shari`a was believed to have been fully developed within the first three centuries of Islam, a very technical meaning of ijtihad was imposed by religious authorities to control the process. But, from an Islamic point of view, no human being or institution has the authority to restrict ijtihad or deny the possibility of exercising it.
Theologically, Islam is a radically democratic religion because every Muslim has the religious obligation to determine for herself or himself what is the position of Shari`a on every issue. This is simply the same principle that no Muslim can escape his or her obligations, and remain fully responsible and accountable for his or her own actions, regardless of what others say. If I act on a so-called fatwa, a legal opinion issued by Islamic scholars (Ulama), I remain responsible for that action and cannot avoid accountability by saying that that scholar told me to do it. This is what I mean by saying that Islam is theologically democratic because it is always based on the responsibility of every individual for her or his choice and action.
But sociologically, people tend to abdicate their responsibilities and delegate to Imams and Ulama, those graduating from Islamic institutions like Al-Azhar in Cairo or Qum in Iran. This was understandable when very few people were able to read the Qur’an and other sources to determine Shari`a principles for themselves. In sociological terms, in the post-colonial period, there has been urbanisation, increased mobility, increased literacy and education. There is an increasing number of middle class professionals and they are now claiming authority away from the Al-Azhar. There is a decentralising move away from religious authorities. However, you cannot expect the decentralised voices to fit whatever you want them to say.
Now that large numbers of Muslims can read the Qur’an and other Islamic sources for themselves, they will move away from dependency on the Ulama to tell them what to believe. Islamic sources are now readily available; I can even do an electronic search of the Qur’an and Sunna of the Prophet on CD ROM by subject or word, and find all relevant principles for an issue and decide. With this capacity becoming accessible to more and more Muslims, the sociology of Islamic knowledge makes ijtihad an obligation that Muslims can and must perform for themselves. In this way, the theology and sociology of Islam are coming together to liberate Muslims from archaic views of Shari`a. Human rights are part of the means and ends of this transformation.
I want to make a point about the idea of fatwa as well. This idea is fundamentally un-Islamic. It is a more Catholic idea that a religious leader, like the Pope, can make a binding pronouncement. As I have said, each Muslim has not only a right but an obligation to make his own choices. We need to delegitmise this idea of religious authority. It comes back to the point about the difference between the theological and the sociological. The fatwa is a sociological not a theological concept.
But with this wide ‘opening of the gates of ijtihad’, there is the risk that some radical views will be expressed by some Muslims as their view of Shari`a. This is unavoidable once people have freedom of religion and belief, and freedom of expression. If you invest certain institutions with the exclusive authority to interpret Shari`a, you will get stagnation and regressive views of the subject. Once you open up the process, you must expect all sorts of views and opinions. The way forward is through dialogue and debate among Muslims, which is secured by their human rights. That is what I mean about human rights being the means and ends of Islamic reformation, allowing views to emerge, be debated, stand or fall by the free choice of Muslims, and not the exclusive authority of a few elite who control the process of ijtihad.
Q: Is international human rights perceived as a tool of the west to justify interference in other states?
A: The global picture is constantly changing. There are certain areas of tension in the world as a reaction to certain events. In this process, human rights, like other great ideas of our time, will be manipulated by some to justify their own hegemony over the lives of others.
In particular US foreign policy has at times used human rights as a mask for its own imperial ambitions. Other examples can be found in the domestic or foreign policies of African, Asian, Latin American, as well as European, countries. Unfortunately, Americans do not have a monopoly for manipulating human rights to their own selfish ends. At the same time, there are citizens and civic organizations in all countries who are defending the human rights principle against such abuse. Those advocates are also influencing the policies of their governments in favour of more consistent observance of human rights principles.
Q: But what about Bahey El Din Hassan’s criticism that “many Arabs perceive internationally recognised human rights as a Western import and thus unsuitable for our societies”?
A: That statement was made in an article which referred to certain actions of Human Rights Watch in Cairo. Human Rights Watch, an organisation for which incidentally I have worked in the past, can sometimes be perceived as an American organization which is almost a puppet of the government. Please note that I am not saying it is so, but only referring to a common perception. I think Amnesty suffers less from this as it is seen as an universal organisation of individual members. Bahey El Din Hassan was referring to a specific incident with that particular NGO. His point, if I may say, was more about the need for human rights organizations to guard against that negative perception that would undermine their legitimacy among the same people they claim to protect against human rights violations. We need to be vigilant to protect the integrity of the human rights movement, wherever that threat may come from. It can come from external forces but it can also come from mistakes made by the organizations themselves.
I would also point out that this idea of the human rights movement being a tool is the exception rather than the rule. In Tunisia for example, Rashid al-Ghannoushi’s Islamic movement was persecuted by the Tunisian government. As human rights organizations protested against that abuse in principled and consistent manner, al-Ghannoushi and his movement came to appreciate and support human rights organizations.
Q: As a Sudanese person, what do you think of Sudan’s allegations that the US has acted hypocritically in abstaining from the Security Council vote on the investigation by the International Criminal Court?
A: I think that the Sudanese government is not in a position to talk of hypocrisy. Yes, the US has been hypocritical and should adopt the Rome Statute, instead of resisting and trying to undermine it. But the present Sudan has been much more hypocritical for decades. The hypocrisy of one government does not justify that of the other, and we should expose and condemn such behaviour whenever it happens, and whoever is doing it.
Q: Truth Commissions in Arab-Islamic culture: Morocco has produced the first one to mixed reactions. Do you think there is room for optimism and that further truth commissions could be seen in other Arab-Islamic states which may be seen as oppressive?
A: Yes, I think there is room for optimism. I am a pragmatic optimist, which is to keep working for better outcomes whenever circumstances permit, without losing sight of the limitations on the ground. This is the first such truth commission there, and I think it would be naïve and counter-productive to expect it to be perfect.
Justice is not relative, but the possibilities of realising it in a given situation are relative. So we must work within the situation to achieve the most we can. In certain situations you have an opening which you can fill, but the very act of filling this space creates more space.
Q: Are you saying that justice should be tempered by practicality?
A: I am saying that you push for the most that you can achieve at a given time. You should push for the maximum such as prosecutions of human rights violators, but accept what you get only as basis for the next step. When you have a regime in power they are unlikely to hand themselves over for prosecution, but if they are prepared to have truth commissions then this is a very important part of the process. Regression is part of progression and we must look not in terms of absolutes but in terms of incremental success. The problem would be to settle for less when we can keep pushing for more.
Q: Edward Said criticised the perception that western law was dynamic and Islamic law purely conservative. Do you think that is an untrue assessment of the different laws?
A: The development of Islamic law has not stopped. There have been refinements of the content of the law within the framework, which was laid down in the first three centuries after the Prophet. However, the scale of change has not been on a par with certain other bodies of law. Now we need a paradigm shift in the methodology of Islamic law so that we can address new problems. Islamic societies are now in a positive position as a result of what I mentioned earlier: the growth of megacities such as Cairo, Islamabad and Jakarta; there is increased education; children are more independent of their parents, and women are working outside the home. There is a break away from the Ulama, as young educated professionals are making up their own minds about what Islamic law means today. We can expect that there will be a significant paradigm shift.
I would argue that an ijtihad is underway and that Islamic societies are now going through a type of Reformation. When Christian societies were going through this they were not necessarily aware of it at the time. The magnitude of change is often understood in retrospect.
For more information about these ideas and projects I have worked on in Islamic Family law, Women and Land in Africa and the Fellowship Program in Islam and Human Rights please go to: www.law.emory.edu
[ENDS]
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