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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: Whose justice? Cultural relativism in the human rights debate
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Israeli soldiers evacuate arrested Hamas activists from Husan, West Bank, March 11, 1996. Western support for Israel, despite their violations of international law and human rights abuses is a serious weakness in the ‘west’s’ human rights credentials. It also continues to be the strongest ‘recruiting officer’ for those opposed to the west in other Islamic countries.
Credit: Manoocher/IRIN |
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“We are at the beginning of an age in which it will be insisted that the same standards of conduct and of responsibility for wrong shall be observed among nations and their governments that are observed among the individual citizens of civilized states”. So said Woodrow Wilson in an address to the US Congress, when declaring war on Germany in 1917.
The development of human rights up to the 1948 Universal Declaration of Human Rights is often described in terms of a progression of bills, statutes and revolutions in the political history of Europe and North America. If the field of human rights is seen as being of western genesis, then this can be, and has been, used to argue that human rights are an essentially western idea which should not and cannot be universally applied, an argument known as cultural relativism.
Others, meanwhile, have suggested that it is the great powers who are the worst proponents of cultural relativism, in that they apply a certain level of human rights for their citizens, and a lower one for citizens of other nations. Or even that they abuse the discourse on human rights for their own motives.
The question not only affects the debates on human rights but it also has implications for international justice. If human rights are viewed as fundamentally western, then international laws and tribunals based on those human rights treaties can be seen as exclusively western, and their imposition as a form of cultural imperialism.
Whose human rights?
Numerous human rights abuses characterise the on-going struggle in Nepal today. Will those suffering most - civilians between the Maoists and the government - ever see justice or compensation for their injuries?
Credit: Naresh Newar/IRIN
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The development of human rights is often charted by reference to the Magna Carta (1215), the American Bill of Rights (ratified in 1791) and the French Revolution (1789). These are considered landmark events that culminated in the Universal Declaration of Human Rights.
The Magna Carta granted certain rights to noble landowners in England, but did little to enfranchise the common man. The American Bill of Rights, and the constitution established following the French Revolution, codified the rights of the citizens of those nations, ‘as individuals’. They were the political manifestations of philosophical advances going on during the age of Enlightenment. The developments focused on the rights of the individual as distinguishable from the society and the state - rights which had not existed before. A new age dawned in which “natural, inalienable and sacred rights” were recognised as belonging to citizens, giving them the power and the standing to challenge those who governed them oppressively.
These benefits were extended to all citizens of the countries that signed the 1948 Universal Declaration of Human Rights. The declaration stated that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
The danger is that if authorship is attributed as a progression from western philosophy to the Universal Declaration, then the drive for human rights can be viewed as a western ideal; therefore, the imposition of such rights on non-western nations is a form of cultural imperialism.
This leads to the argument for cultural relativism; an argument which suggests that human rights are not a universal concept but are, in effect, regional depending on the norms of each society.
Relativists and the ‘bogus’ Asian values debate
A young woman gives her vote at a gathering of women at the Faculty of Medicine in Faizabad in order to chose their candidates for the Loya Jirga elections, 2002. Many Afghans are today unhappy that those elected to their new parliament are old warlords and strongmen who for years have acted with impunity and perpetrated countless human rights violations.
Credit: Manoocher/IRIN
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In the late 1990s, the former Prime Minister of Singapore, Lee Kuan Yew, following Presidents Marcos and Suharto, both of Indonesia, advocated the idea that individual human rights are antithetical to Asian and African mores; he argued that these rights need not be extended to the peoples of those areas. All three presidents believed that the concept of universal human rights should not be applied to societies that emphasise the greater good of society as a whole - a form of collective human rights - above those of the individual.
The debate, which Justice Geoffrey Robertson, Queens Council jurist and author has referred to as the “bogus Asian values debate”, has been coloured by the many human rights abuses recorded under the regimes of those proponents. The disdain shown for the rights of individuals or minorities was encapsulated in a statement which Lee Kuan Yew made when addressing business leaders at a dinner in 1999. Referring to the well-documented human rights abuses occurring in Timor-Leste he said: “There are many unhappy minorities living very uncomfortable lives in ASEAN (Association of Southeast Asian Nations).You know that, I know that. We look the other way. To go in and intervene would have the whole ASEAN solidarity breaking up.”
The issue is that acknowledging the rights of the individual, or even minorities, can upset the equilibrium and be to the detriment of society as a whole; in this case ‘society’ refers to the ASEAN bloc. Put another way, the greater good is not served by according rights to individuals.
Letters to Santa Claus
Professor Noam Chomsky, one of the US’s most prominent dissidents and a professor of linguistics at MIT, states meanwhile that some Asian countries have argued for cultural relativism in human rights. However, he believes that “the debate is skewed in the west”, saying that there are other countries which are relativists, although they are not commonly referred to as such.
“Sometimes democracy must be bathed in blood”
General Augusto Pinochet
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He argues that the US is a relativist in that it only allows certain rights to be considered human rights: “One of the leaders of the relativist camp is the US. It flatly rejects two thirds of the Universal Declaration. The Universal Declaration has three parts: civil and political rights; social and economic rights; and cultural rights. The US vigorously rejects the last two sections.” The social and economic rights “were described by Ronald Reagan’s Secretary of State as a letter to Santa Claus that means nothing”, and by Paula Dobriansky, when she was the assistant Secretary of State for human rights and human affairs, as “a myth that is polluting human rights discourse”.
Apart from the rejection of the social and economic rights and the cultural rights (sometimes called second and third generation human rights), Chomsky also points out that even though the US and Britain pay lip service to the idea of political and civil human rights, or first generation human rights, they do not uphold them in practice. According to him: “The rich and powerful countries more or less accept political and civil rights when it is in their interests to do so.”
The view from the Middle East
Bahey El Din Hassan, the Director of the Cairo Institute for Human Rights Studies, has said that “many Arabs perceive internationally recognised human rights as a western import and thus unsuitable for our societies”. However, he argues that one of the main reasons that Arabs are averse to the human rights framework is because “western governments use its rhetoric” when defending policies such as starvation of the Iraqi people through the strictest economic blockade in history, and the impunity given to aggressive acts by Israel.
Hanny Megally, Director of the Middle East and North Africa Program at the International Centre for Transitional Justice recognises this argument and concedes that “human rights have become a political ball”. He said: “If you go to Egypt and you raise human rights violations there, the first response will be, ‘What about Israel and what is happening in Iraq?’”
Undue force against citizens: Against detained children in northern Brazil."They have a type of bomb that explodes. They got me here with something that hits and explodes," Hamilton A., 17, said of injuries from tear gas and rubber bullets fired by state military police who entered the Centro de Internação Espaço Recomeço, Anani.
Credit: © 2003, Michael Bochenek/Human Rights Watch
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However, he sees a potentially positive aspect to the politicisation. “If governments have taken up the human rights terminology that means it is also possible to hold those governments to those standards. Whereas the debate 30 years ago was based on the idea that ‘human rights’ was a foreign concept and was perhaps seen as the west trying to impose its own standards. Now they cannot say that. If Middle Eastern governments are using the language of human rights to criticise what is happening in Iraq or the Occupied Territories, they themselves have to comply with human rights standards.”
Revolutionary and recent rights
The question remains though, if the development of human rights is understood to stem from western philosophy, whether this is relevant to the debate on the applicability of human rights to all. In other words, does the provenance of human rights dictate the applicability?
Dr An-Na’Im, Charles Howard Candler Professor of Law at Emory University, Atlanta, rejects the basis of the discussion on the grounds that the development of human rights is not exclusively western. He believes that is “an over-simplification of an enlightened, pluralistic west, versus a despotic and authoritarian east”. He sees “the human rights paradigm” as “the child of the UN Univeral Declaration on Human Rights” established in 1948, and as such as “revolutionary and recent”.
An-Na’Im argues that the American Bill of Rights and the French Constitution “were concerned with the citizens of those countries, not with the rights to be accorded to all human beings”, and that it was this classification that allowed the European Enlightenment to legitimise colonisation, which valued the life of the citizens above those of other human beings. He believes this was responsible for countless human rights abuses, and displayed considerable cynicism and hypocrisy: the basic rights to life and self-determination were denied to many, while the Europeans congratulated themselves on their internal, national development of social ideas, individual rights and philanthropic enterprises.
On the question of whether human rights can coexist with Shari’a law, An-Na’I asserts that “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”. He does allow that much of Shari’a law, as currently interpreted, can be hostile to fundamental human rights, most particularly those of women.
“If international law is the child of imperialism it is not only…. a dutiful child but also…… a child with oedipal inclinations”
Peter Fitzpatrick
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This basic opposition between Shari’a law and human rights was most clearly demonstrated by Saudi Arabia’s agreement to adopt the Universal Declaration on Human Rights in 1948 only to the extent that it did not conflict with Shari’a law. However, he draws a distinction: “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… 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.”
He states that: “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,” and that there is a growing body of Muslims who do not view Shari’a and human rights as incompatible. The modernisation of society has allowed people to have greater access to education and to assess the words of the Sunna - the words, sayings and deeds of the Prophet Mohammed and the Qur’an. He argues that this means that 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.”
The Qur’an is obviously immutable, but a more modern Ijtihad, or application of human reason in the interpretation of Shari`a, a reading which emphasises the rights and obligations of the individual, could, in his opinion, reconcile perceived differences. He goes so far as to say: “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.” This alleged Reformation can seem a long way off in a time when mere cartoons of the Prophet Mohmammed can cause riots and bloodshed across the world, and when fatwas are issued against those perceived to be at odds with the message of Islam.
The corpse of an executed prisoner (woman?) lays on the ground after public execution in Jamshid district in Tehran, 1980, sentenced to death by Ayatollah Khalkhali. Beaten, arrested, tortured and executed without any formalities: this was the fate which the regime reserved for its opponents.
Credit: Manoocher/IRIN
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In his essay, “Is personal freedom a western value?”, Thomas Franck - writing in the American Journal of International Law in 1997 - points out: “In the Human Rights Committee, a UN body which has now been replaced by the Human Rights Council, Islamic members have been among the most outspoken in rejecting the notion of incompatibility between Islamic law and the global law of the human rights treaty system”. This suggests that the idea that Islamic law and human rights are fundamentally incompatible is a view held by only a few Islamic countries.
Nevertheless, this is not often discussed in the western media. Instead of analysing the development of human rights from a non-western perspective, there is a perception that before the Universal Declaration the concept of human rights did not exist in such countries. The focus tends to be on the differences in cultures and what some have termed the more ‘barbaric’ aspects of Shari’a law.
When discussing the human rights framework and its universal applicability, debate often dwells on the repression of women in many Arabic societies, and the extreme forms of punishment, such as cutting off the hands of thieves. It is often forgotten that these practices, including stoning people to death, are only advocated by the more extreme factions within the Islamic religion, and that the Qur’an does not prescribe such activities.
“Tribal” differences
That is not to deny that these practices do go on, and frequently. Signing-up to conventions is laudable, but it is only paying lip service to the idea of inalienable human rights, if those rights are not respected. When outrage is not felt across the Muslim world when a woman is stoned to death for adultery, some observers in the west claim this a proof that human rights are denied in these countries and this is a result of cultural incompatibility between human rights and Islamic law.
The fact that reports emerge from certain Islamic countries of women being stoned for adultery, and that echoes of outrage do not seem to ripple across the Islamic world, leads some observers to believe that basic human rights are routinely denied as a result of the cultural incompatability of human rights treaties and Islamic law.
However, there is a difference between advocating against the infringement of human rights in certain parts of the world and presenting human rights as fundamentally foreign to those parts of the world. As Justice Geoffrey Robertson Q.C.points out: “Freedom from torture and genocide, freedom from hunger and persecution, freedom to worship and to express opinions, the right to fairness at trial, and so on, are not western inventions - they are your entitlement as a human being, whether you live in London or Nairobi, Timbuktu or Tuvalu. On this issue there can be no compromise, no excuse of ‘cultural relativism’.”
“There are some backsliders in the human rights movement who think that evils like female genital mutilation can be excused as ‘culturally relative’ because they have happened to a lot of women in Africa, for a long time. That does not justify the practice: it is a form of torture, for which there can be no justification… Tribal or national practices that are, objectively, barbaric and primitive, cannot be countenanced.”
To those who reject the universality and inalienability of human rights, this attitude smacks of cultural imperialism.
Towards universality
“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”
Universal Declaration of Human Rights |
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The concept of human rights has, since 1948 and the Universal Declaration, entered the mainstream. The language of human rights has long been used in the realms of politics and diplomacy, and it is not unusual for political pressure to be brought to bear on countries in order for them to improve their human rights record. Just one example is the efforts that Turkey has been required to make in order for discussions to begin on its possible accession to the European Union.
However, this language has only recently been given force at a legal level. There have been dramatic steps forward in the international arena in the last fifteen years towards making people accountable for the human rights abuses they have committed. This is a remarkable step forward from dialogue to enforcement. The International Criminal Tribunals for the former Yugoslavia and for Rwanda, as well as the setting up of the International Criminal Court, are evidence of commitments to combat the systematic infringement of human rights at an international, legal level.
At last, there is the prospect of power behind the word and concepts.
There is little doubt that despite the grand words in treaties and conventions, the drive to accord all humans with basic rights is a theory not yet practised. There are widespread abuses, sometimes governmental, sometimes stemming from war and sometimes as part of centuries-old practices that communities are loathe to relinquish. It is this last category that proves the thorniest issue in terms of cultural relativism, and potential allegations of imperialism.
Yet, unless the human rights themselves are seen as universally relevant to all humans, such attempts will be open to the accusation that they are a form of cultural imperialism, or even an irrelevance to certain peoples. If human rights are portrayed as culturally relative then they can be denied to certain groups. If the language of human rights is allowed to be politicised, ‘relativised’ or hijacked for other reasons, this fuels distrust for the aims of human rights treaties or organizations, and alienates peoples from a supposedly Universal Declaration on Human Rights.
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