ASHER ASIF QAZI*
I. INTRODUCTION
Many authors label the preceding century as the age of human rights. The number of human rights seems to be increasing, and with the far-reaching effects of globalization the audience of these rights also seems to be increasing. For many this age of human rights is a blessing, during which universal norms of justice, equity and fairness have spread throughout the world. Others, however, remain skeptical of this ‘newly’ found blessing. These critics project human rights as another form of imperialism which, they claim, is nothing more than a neo-colonial attempt to universalize a dominant ideology all over the world. It is this critique of human rights which will be analyzed in this paper.
Section II will engage this inability of the human rights project to imagine a rights discourse beyond the western tradition; in particular, this paper will use the example of the ‘Islamist’ state to disprove the notion that human rights are universal or are conceived as such. Section III will attempt to demonstrate the dangers which the current human rights discourse poses, and has historically posed, by claiming to be universal, “good” and the only valid form of “rights” as such. The last section of this essay will focus on a rethinking of human rights in terms of the highlighted problems in the previous sections. In short, this paper proposes a ‘rethinking’ of human rights, and the development of a discourse which accounts for the various alternate histories and conceptions of human rights.
II. THE EXISTENCE OF AN ISLAMIC STATE WITHIN THE CURRENT HUMAN RIGHTS DISCOURSE
Freedom of religion is perhaps one of the oldest and most cherished human rights available to people living today. The international community has ensured the protection of this right by recognizing it in nearly every declaration on civil and political liberties . Article 18 of the Universal Declaration of Human Rights (UDHR), for instance, provides that, “Everyone has the right to freedom of thought, conscience and religion...” Recent events, however, beg to question the protection which this right affords. The secular states of the 21st century, while in theory are to be independent of religion, are increasingly regulating religious practice (Mahmood 327). This trend of making religious practice subject to the dictates of secular law, especially human rights, is making this freedom more distant from reality. And this is especially true if we consider the religious practices of nearly 900 million people all over the world – the Muslims.
For many Muslims, “Islamists” in particular, the full realization of Islamic values requires the establishment of an Islamic state (Bavikatte). The state apparatus is an important tool for the realization of Islamic practices, as it provides for the enforcement of Islamic law, and in turn the establishment of Islamic courts. Would such an Islamic state be compatible with human rights? This is the primary question which this section addresses.
Prima facie, this question returns with a negative answer. The idea of an Islamic state would be incompatible with human rights as it is simply inconsistent with the secular “western” ideals of this discourse. An Islamic state would naturally demand the enforcement of laws based on scripture (the Qur’an) and tradition (Sunnah), rather than reason and science, and this in itself is a major deviation from the ‘universal’ tradition of human rights which prides itself in being based on human rationality (Freeman 111). Nevertheless, assuming that the dominant western discourse allows for such a deviation , the real question is whether the laws promulgated under such an Islamic state would violate the tenets of human rights. Before this paper proceeds to such an examination, it is pertinent to note the basic inconsistencies between the concept of rights in the dominant human rights tradition and in Islamist philosophy.
The conception of rights in Islam is far different from the western conception of human rights. Firstly, rights under Islamic law are not universal. All human beings are not guaranteed rights under Islam, and as the following paragraphs will explore, there are sharp differences between the rights of Muslims and non-Muslims, women and men, so on and so forth . Secondly, rights under Islamic law are conditional. This is clear from a bare reading of Section 24 of the Cairo declaration, which makes all rights “subject to the Islamic Shari’ah” . Making rights subject to the Shari‘ah would be extremely problematic for any human rights regime; as this rule would make absolute human rights conditional on the changing circumstances of the Islamic state.
Furthermore, individual rights, according to this discourse, would also be subject to the communal rights; many situations may thus be envisaged where individual rights are sacrificed for protecting community interests (Moosa 10). The preceding point also highlights another difference between Islamic rights and human rights: whereas the human rights discourse is centered on the individual , Islamic rights are centered on the community.
Another important ideological difference is the conception of rights itself. ‘Haqq’, which is the literal translation of rights in Islam, also implies a duty (Ibid. 5). In Islam, therefore, rights are also to be conceived as duties/obligations- for every right, there is a corresponding duty, and only when one fulfills one’s duties is s/he eligible for rights (Ibid. 6). Recognizing this strong emphasis on duties in Islam, many scholars ironically refer to the Universal Islamic Declaration on Human Rights, as the Universal Islamic Declaration of Human Duties (Ibid. 9).
As this paper proceeds to examine the actual inconsistencies between human rights and laws promulgated by an Islamist state, this paper would like to make the following note. There are many Islamic Scholars who maintain that Islamic laws are perfectly consistent with human rights , and their ideology must be considered to form a more informed approach to Islamic law . This paper is, however, just focusing on what Na’im calls the “dominant discourse” (Na’im 14) in Islamic legal thought (which represents the ideology of the ‘Islamist’ which was dealt with above). Therefore, this essay must not be considered to be a commentary on Islamic law, but should rather be understood as an attempt to demonstrate how the religious practices of a community (no matter what its size) may violate the tenets of the current discourse on human rights, thereby losing all protections under it. The ‘Islamist’ discourse thus proves to be convenient choice for this author, both because of the controversial nature of its content, and the recent attention it has received because of the ‘War on Terror’.
There are many supposed contradictions between the substance of Islamist laws and human rights. Firstly, as mentioned above, in an Islamic state – Dār-ul-Islam (land where Islam is sovereign) – non-Muslims would be treated differently than Muslims (Freeman 103). In such a state Muslims would have full-citizenship rights, whereas non-Muslims will not enjoy such protection. For a non-Muslim, the security of their life, liberty, and property would only be guaranteed by the State when they pay a special tax (jizyah) (Na’im 24). In addition to this, non-Muslims would not be allowed to keep high public office positions (Moosa 13). Furthermore, Muslims would be permitted to marry non-Muslim women, but non-Muslims would not be allowed to do the same. The treatment of non-Muslims in this way would be a clear violation of the equal protection right enshrined in the UDHR .
Islamist laws would also restrict the freedom of religion. Apostasy is strictly punishable under these laws, and if a Muslim changes his/her religion, provided that the relevant evidentiary requirements are complete, he/she is liable to the death penalty (Moosa 12). The Islamic law against apostasy has also, over the years, been given a wider interpretation to include derogatory statements against the Prophet Muhammad (PBUH), or against the basic tenets of Islam. This has accordingly also violated the freedom of expression right enshrined in the UDHR, and ICCPR . The Salman Rushdie affair is a good example of this wide interpretation. Salman Rushdie published a book titled “The Satanic Verses” - this book had material which was a cause of disrespect to Muslims around the world. Consequently, the book was banned by many Muslim governments; the ban was followed by various ‘fatwās’ (Religious Declarations), which denounced the book, and ordered for Rushdie’s execution. Imam Khomeini of Iran, for instance, sentenced Rushdie to death in absentia without a charge or trial. Therefore, the western conception of freedom of expression and religion is not compatible within this Islamist framework. This contradiction is, however, extremely ironic. While these Islamic laws violate the freedom of religion enshrined in the UDHR, the prohibition on Islamic countries to enact such laws is also a violation of the same right under the UDHR- nevertheless, it is not surprising to see that only one of these violations is talked about.
A third contradiction, one which is most often cited, is the treatment of women in Islam. The subject of women in Islam is the centre of constant introspection by Islamic scholars. This section will, however, as mentioned above, just examine the dominant discourse on women rights in Islam. According to the dominant discourse, men are considered superior to women, as they are considered their “guardians” (this is the concept of ‘Qawama’ in Islam) (Na’im 37). This concept, by making women subject to the dictates of man, clearly violates the traditional concept of gender equality elucidated in the UDHR. Furthermore, this dominant discourse makes the public sphere the exclusive domain of men. Women are not allowed to leave their private sphere, subject to permission by their male guardians, nor are they allowed to keep public office (Ibid. 43). Moreover, even in the private sphere women are not afforded equal rights. Women, for instance, are not entitled to same amount of inheritance as men are (Moosa 14). The testimony of women is also not considered to be equal to that of men- the evidence of one man being equal to that of two women (Ibid.). In family relations too women are seemingly weaker to men. Men may take up to four wives, whereas women cannot enter into more than one marriage. The laws of divorce also make this differentiation. While men may unilaterally divorce their wives, women may only obtain a divorce through a judicial pronouncement (Ibid.). The issue of the veil (Hijāb) has also repeatedly surfaced in international human rights debates. According to the dominant discourse Muslim women are supposed to cover their bodies leaving only their hands and their faces uncovered. Human rights advocates, however, claim that by compelling women to wear the head scarf, the Islamists severely restrict women to the private sphere. The preceding view has been articulated by the European Court of Human Rights in Sahin v. Turkey, where the court held that the State of Turkey was acting in conformity with human rights when it banned the head scarf in public schools and colleges (Steiner, Alston 625). In light of these differences, it is thus not surprising to see that most Muslim states are not signatories to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (Freeman 112).
Slavery is another subject which provokes the attention of human rights advocates. Though slavery, as an institution, is no longer practiced in most Muslim states, it is not illegal under the provisions of the Islamists doctrine (Na’im 23). Another obvious inconsistency lies in the forms of punishment imposed under Islamic law. Under Islamic law, the more serious offences like fornication, apostasy, theft, and so on, call for a punishment which may be considered cruel and inhumane under the current human rights framework. Fornication, for instance, provided the relevant evidentiary requirement is met, is punished with flogging. Article 5 of the UDHR provides that no one shall be subjected to cruel, inhuman, and degrading punishment- so clearly flogging would be impermissible under this provision.
Therefore, in lieu of above mentioned contradictions between the dominant discourse on Islamic law and the western conception of human rights, it may be safely said that the current human rights framework is likely to fail in imagining the existence of an Islamic state which promotes such laws. This conclusion should lead us to safely assume that the human rights discourse is not universal, as it claims to be; this is not to say that this paper is advocating the incorporation of the above stated laws within the human rights discourse, but rather simply that the human rights discourse should not be treated as the only tradition of rights. The dangers of doing so will be evident from the following section.
III. THE IMPERIALIST HISTORY AND USE OF HUMAN RIGHTS
As the preceding section illustrates that the establishment of an Islamic state within the current human rights discourse is impossible; ironically, as mentioned above, this incompatibility (of Islamic rights and human rights) also violates the human rights of all the ‘Islamists’ who seek to establish such an Islamic state. Why are certain human rights more important than other rights? Are human rights indeed universal? Or more particularly should human rights be universal? The universality of human rights and its true mission has been questioned repeatedly. Some authors term human rights as the “Trojan Horse of Re-Colonization” (Esteva 110); for them, human rights represent nothing more than another imperialistic formula aimed at supplanting the western liberal tradition all over the world. Baxi, for instance, labels human rights as nothing more than an “empty signifier” that is filled by the dominant ideology, which in today’s world emanates from the west (166). Accordingly, human rights are the new tools of western imperialism- the third world being the subject of this imperialism. It is perhaps for this reason, as Rajagopal points out, that human rights violations are unheard of in the first world (171). Violations of human rights in the first world are simply coined as civil rights violations.
Therefore, the phrase “human rights violation” immediately forces the listener to imagine the third world (Rajagopal 171). Why this difference? This section will seek to examine the preceding questions. It is expected that the answers provided in this section clarify the reasons why an Islamic state cannot be imagined within the current human rights framework.
The imperialistic nature of human rights can be understood on two different levels. The first level deals with the neo-colonial nature of the human rights discourse- this level primarily considers the use of human rights as an imperialist device employed by the west. The history of human rights is extremely important in this regard; the west, presented as the sole author of human rights, has maintained itself as the sole enforcer of human rights, many a times enforcing them at its whim and desire. The second level of human rights imperialism shifts its focus from the west to the nation-state. The history of human rights with its state-centric approach removes the ordinary person as the audience of human rights; the state, responsible for the imposition of human rights, is given the authority to confine the audience of human rights. Human rights, at this level, seem to revolve around the dominant ideology of the state- which in turn mirrors the hegemonic western ideology.
The first level of human rights imperialism (i.e. the use of human rights as an instrument of repression by the west) needs to be understood in the context of the dominant narrative of human rights. Human rights, according to the dominant narrative, originated in the west, and consequently they can only be enforced by the west- this dominant narrative has been classified as the “impossibility thesis”. This “impossibility thesis”, in the words of Baxi, forms the basis of human rights dialogue in the west (37). The history of human rights is traced to the Greeks, the Stoics, Christianity, and so forth; however, this history never incorporates writers or social movements beyond the parameters of western philosophy (Douzinas 26; Asad 174). This discourse fails to realize, for instance, the anti-colonial movements in the south (like Gandhi’s Swraj), which centered on the basic human right of freedom for the colonized people (Baxi 41).
Interestingly enough this thesis also ignores centuries old human rights enunciations in other regions like the Islamic world. The “impossibility thesis” is perhaps the biggest tool of repression used by the west. The west, claiming to be the sole enunciator of human rights, took it onto itself to “civilize” the world with human rights. Colonization was cloaked in the ingenious design of “civilizing” the “savage”. The “savage”, brutal in his nature, knew nothing of rights, and what we now call the “third world” needed to be rescued from him. The west became this “savior”, in the words of Mutua, and so began the process of colonization (207).
So in very simplistic terms, the west used the discourse of human rights to justify the entire colonial enterprise. Such was the imperialistic design of the western conception of human rights. What’s troubling is that the human rights of the millions of people who were colonized were ignored; to be classified for human rights, one needed to be classified as a human, and the savages simply did not make the cut. According to Baxi, never before was the plight of so many people made invisible to the world (46). Human rights became the perfect tool for imperialism because they legitimized it; furthermore, human rights succeeded in displacing responsibility for the numerous atrocities that colonization caused. Human rights were the perfect law of irresponsibility . The western conception of human rights delimitated responsibility for state action to a very limited sphere- which was also defined by the state. Human rights became defined in opposition to “evil”-the laws of the savage- so anything which was in opposition to human rights was “evil” and needed to be thwarted. More so, this counterintuitive definition made human rights the repository for “good”, and so anything under this doctrine was automatically legitimized. Therefore, the west took no responsibility for any action taken under the banner of human rights, which is why there is still no official state apology for colonization (Baxi 42).
Human rights not only legitimized colonization, but provided for its continued existence. The local laws, religions, traditions were all made subject to the dictates of human rights and the western conceptions of “justice, equity, and fairness” ; therefore, the colonial powers had the legitimacy to enact any law to stay in control of the colonized people and territory. Even after the conception of the UDHR, the human rights discourse stank of neo-colonialism. The UDHR prized state-sovereignty, and so the state was made the enforcer of human rights (Asad 135). This state-centric approach led human rights to be defined in relation to the “citizen” rather than the “human”. As Baxi terms it, the “pseudospeciation” (178) of human rights defined the “human” in terms of the citizen; thus, all those who were not citizens were effectively deprived of their rights. The colonized savage was not a citizen. The helpless refugee was not a citizen. Minorities too were not complete citizens. The rights of non-citizens were no rights, and so any suffering imposed on them by the state was legitimate (Arendt 276). This state-centric approach to human rights, certainly gave a valuable weapon to the state in furthering its imperial interests.
The human rights discourse gave the colonizer another weapon- the declaration of a state of emergency. The ICCPR allows the state to declare an emergency, which effectively results in the suspension of nearly all the rights guaranteed in the document (Rajagopal 177) . Therefore, the state can legitimately declare a state of emergency and violate the so called “fundamental” rights of the citizen. Any suffering imposed on the citizens during this time would thus be “legal” and the state would not be held responsible for it. Interestingly enough, as Rajagopal points out, the provision of emergency in the ICCPR was introduced by Great Britain-the leading colonizer of that time (177). At the inception of the ICCPR, anti-colonial struggles were rampant all over the world. The colonizer, fearing an emancipated populace, strove to maintain order and control through the provision of a state of emergency (Ibid. 181). The imperial interests behind human rights should thus become clearer, when a document which purports to give universal inalienable rights provides for a clause which allows for the derogation from these very rights.
An additional weapon used in the exercise of imperial power was torture. The human right against torture, though recognized as a ‘Jus Cogens’ right, was used to further the interests of the colonial powers. How did the human rights doctrine allow this clear violation? The human rights discourse neatly distinguished between ‘necessary suffering’ and ‘unnecessary suffering’- the latter being classified as torture (Ibid. 183). ‘Necessary suffering’ entailed the pain afflicted by the state on the “savages” for the “necessary development” of the region. All that was necessary for the “development”- necessary for “civilization”- was not considered as torture (Ibid. 186). “Unnecessary suffering” was, however, strictly not allowed. Predictably, the traditions of the local “savages” met this classification and they were outlawed (for instance, Satti was outlawed under this rubric). So the right against torture while legalizing the suffering imposed by the colonizer, simultaneously categorized as illegal many of the indigenous customs and traditions .
The human rights’ doctrine also silently legalizes a contemporary means of western imperial domination- capitalism and the free market. The human rights doctrine with its heavy reliance on liberal values, like the freedom of choice, is oblivious to economic violence; and this invisibility of economic violence allows western nations to freely and legally plunder the economies of the third world (Ibid. 194). The South Asian economic crisis is perhaps a good example of the use of economic violence. Short term speculators retrieved their investments in a rush from South Asian countries, like Thailand, leaving them with a severe economic crisis. Thousands of people perhaps lost their jobs, inflation rates exploded, the growth rates of these countries plunged, but there was not a single human rights violation recorded (Asad 128). Similarly, economic sanctions are not classified as a violation of human rights, and they are used, more often than not, to coerce economically fragile countries into taking policy decisions against their national interest.
What’s alarming is that where such economic sanctions are imposed, like in the case of Iraq in the 90s, there is little recognition of the human rights violations of the people suffering in that state. On the contrary, the human rights doctrine allows for these violations to continue, and even legitimizes them (by not overtly criticizing them).
As the preceding paragraph suggests the human rights doctrine has been used to advance the imperial interests of the west; unfortunately, this nature of human rights has not changed. The third world is still perceived as the “savage” in need for “civilization”, and the west still sees itself as responsible for the “civilizing” mission. It is thus not surprising to see, as Mutua observes, that most NGOs dealing with human rights violations operate in the third world-with their head quarters in the west (217). This is not to say that no human rights violations take place in the west; they just don’t get noticed. With the third world as the “savage” the west must come to “save” it. The “savior” in the 21st century has new tools of imperialism: humanitarian interventions, regime changes, and the recent addition of the “war against terror”. These new forms of imperial invasions once again result in grave violations of human rights, but yet again these violations are legal- even legitimate- under the current human rights framework.
The paragraphs above dealt with the first level of human rights imperialism. The second level of imperialism is at the nation-state plane. The human rights framework, as established above, is highly state-centric. The UDHR, along with other human rights instruments, is directed towards the state. The state is made responsible for the imposition of human rights, making it a powerful actor in the realization and definition of human rights (Asad 135). In doing so the “citizens” of these states are made the audience of human rights. This equation of citizenship with human rights, gives the state the leeway to define who the citizens are, and in turn define who is eligible for rights. This absolute power of the state in defining “citizenship” gives it the power to define it in line with its dominant ideology; in addition to this, the “margin of appreciation” (freeman 104) afforded to states in interpreting “rights” also gives it the power to define the nature and extent of “rights” given to citizens. For the state, then, human rights represent an “empty signifier” (Baxi 166), which can be used to propagate the dominant ideology of the state.
States have often relied upon the human rights discourse to advance its interests. In defining “citizenship” and “rights” states have managed to deny human rights to millions of people around the globe. Since rights are afforded to “citizens” rather than “humans”, states have historically varied the definition of citizenship to exclude groups that they seek to oppress. For instance, the Nazi regime first deprived the Jews of their citizenship rights before shifting them to extermination camps- once the Jews were stateless, no state was responsible for ensuring that they be provided human rights (Arendt 280). The frightening aspect of this episode was that this act of the Nazi’s was indirectly permitted by the human rights discourse and was consequently considered legal; in many ways this discourse encouraged it, and provided the Nazi’s with a legal loophole to follow through with their imperial design. At other instances, one finds states refusing to afford rights to refugees. Since refugees are not citizens of the state, the state has no obligation per se to bear the expense of providing them with rights (Arendt 278). States have also loosely defined the term “citizenship” to sometimes deprive ethnic and religious minorities of their rights. In America, for instance, African Americans were not recognized as “full-citizens”, and because of this they were legitimately deprived of their rights (Asad 142); the dominant ideology of the American state was “White”, and on this basis it defined citizenship.
The state also relies on its dominant ideology to define “rights”. In Sahin v. Turkey, for instance, the state defined freedom of religion in extremely secular terms- as secularism was the dominant ideology of the state- and the European Court of Justice upheld this interpretation. The state was therefore successful in propagating its ideology through human rights .
The state also has the tools of “necessary suffering” and the declaration of a state of emergency to ensure the thrust of the dominant ideology on the populace. The colonial history of the human rights has given the modern state the perfect means for subjugating dissidents of public policy. If the state wishes to oppress a movement, all it needs to do is declare a state of emergency. Emergencies are a common phenomenon in politically unstable third world countries, creating a complete vacuum of rights. The “necessary suffering” of the state is now in the form of economic development. The dominant liberal ideology of the state demands that it pursues economic development, and any rights compromised in such pursuit are considered a necessary sacrifice. So, for instance, where the construction of a dam would displace millions of people, it wouldn’t be considered a violation of their human rights, as it’s a “necessary suffering” for economic development (Rajagopal 195). Therefore, the state legitimately, under the human rights discourse, sacrifices civil and political rights for economic development.
One of the myths that the preceding paragraphs should serve to rule out is that the human rights discourse is anything but a check on state power. Apart from the great potential of abuse which the human rights discourse allows, the realization of human rights logically requires the expansion of state power. After all, a right to a fair trial or to equal protection of the law necessarily requires the state to expand and develop the machinery for providing these rights. Therefore, the human rights discourse not only allows for an imperial state- it imagines it.
IV. A RETHINKING OF HUMAN RIGHTS
The preceding section highlighted some of the problems with the current framework of human rights. It is not surprising to see that within this framework an Islamic state cannot be envisaged. The dominant western narrative of human rights is going to resist challenges from other ideologies, especially Islam. With Islam representing the anathema of the dominant tradition of human rights, it is not going to be an easy fight for ‘Islamists’ to protect their right of freedom of religion. The State Department of United States, for instance, along with some countries in Europe, is already coming up with strategies to combat what they call “Islamophobia” (Steiner, Alston 621). This inability of the current discourse to imagine a ‘pluriverse’ of rights is exceedingly problematic. As seen above, the current discourse has great potential for abuse- rights are not guaranteed to all “humans”, and the “rights” guaranteed by this discourse are culturally myopic in their application. How then should the human rights discourse be re-imagined?
A starting point for this re-thinking should be the history of human rights. The dominant narrative, as foretold by the “impossibility thesis”, fails to account for the various human rights mechanisms in regions other than the west; more so, it fails to acknowledge the ability of non-western actors to formulate a coherent “rational” discourse of human rights. This inability to imagine human rights emanating from anywhere outside the west leaves the third world in the daunting image of the “savage”, thus making humanitarian interventions (and wars for “democracy” ) endemic in the third world. The human rights discourse must appreciate the rich tradition of non-western nations with human rights, even if their formulation of human rights is different than the west. For instance, most nations are alien to the idea of individualism in human rights, with their values and rights emanating from the community (Medus 13).
For the least, the contribution of non-western countries must be appreciated in the current formulation of human rights. As Waltz points out, many non-western countries contributed towards the drafting of the UDHR- the principle document of human rights (441) . Furthermore, the west should not be looked as a monolith which created or supports human rights; many countries in the west (like the U.S in the 1950s) were not in support of human rights, and have a history of committing severe human rights violations (Waltz 443). The stereotype of the west as the “savior” and the non-west as the “savage” needs to change, as only this change will stop human rights from being used as a vehicle for western imperialism .
More importantly, human rights need to stop being defined in opposition to “evil”. The circular definition of human rights, as the opposite of “evil”, gives the impression that everything in human rights is “good”, and anything or anyone opposed to human rights must necessarily be “evil”. The jurisdiction of rights has, as mentioned in section III, great potential for abuse. Once something is declared legal under the human rights discourse, it must necessarily be considered as “good”; no one thus questions the legitimacy or the morality of an act committed under the cloak of human rights. Consequently, states are free to manipulate the human rights discourse for their own imperial gains. Why must human rights be defined in opposition to “evil” ? Why must they be defined at all? Answers to these questions are warranted, but they are beyond the scope of this paper- what is certain, however, is that the current definition and jurisdiction of human rights is misplaced.
It may also be mentioned that the current state centric approach to human rights is highly problematic and it must change. States should not be given the authority to define “rights” in relation to the “citizen”. Rights should be available to everyone and not just to the political subject/citizen (bios) (Agamben 127). State power in relation to human rights is closely linked to the definitions of “human” “rights” and “universality”. As long as these empty signifiers remain, states will have the power to define them according to their dominant ideology. Rights will not be afforded to those not in power - the weakest group in society (the “Zoë” or bare life in the terms of Agamben) - and this questions the usefulness of having human rights in the first place. It is for this reason that this author proposes the “de creation” of human rights (Baxi 2). The current discourse on human rights does not afford intelligible rights to everyone; also, it fails to provide a suitable avenue of redress to those whose rights have been violated. More so, the concepts of “universality” and the “human ” itself are so problematic that no singular definition is possible. Therefore, a world without human rights (in their current form) might be better placed to deal with human rights violations on the basis of their cultural traditions and basic morality.
Skeptics might argue that a world without “universal” human rights would imply a world without order- a world with grueling human rights violations and anarchy. Their cynicism is nothing more than what the Marxists term as the, “legal fetishism of the law”. A world without law might not be a world without order. Societies have their self-regulating traditions and norms which have governed their conduct for centuries before the conception of the contemporary human rights discourse. Proponents of human rights might argue that contemporary human rights were a response to some of the most gruesome human rights violations, like the Holocaust, and human rights have succeeded in preventing the repetition of such acts. However, has the human rights discourse really succeeded in preventing mass scale atrocities? A preliminary look at the last 15 years alone is enough to realize that human rights have done no such thing. Rwanda and Bosnia are testaments to the failure of human rights. Human rights clearly failed to prevent the gross neglect of human life in these two regions, and this failure questions the efficacy of human rights. Therefore, human rights must be “de created” in order to manage many of problems they currently face. This time, however, any attempt to create human rights must be approached with caution and care- in Baxi’s words “we must all approach human rights as strangers”(5).
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Zizek, Slavoj. “Against Human Rights.” New Left Review. 2005.
I. INTRODUCTION
Many authors label the preceding century as the age of human rights. The number of human rights seems to be increasing, and with the far-reaching effects of globalization the audience of these rights also seems to be increasing. For many this age of human rights is a blessing, during which universal norms of justice, equity and fairness have spread throughout the world. Others, however, remain skeptical of this ‘newly’ found blessing. These critics project human rights as another form of imperialism which, they claim, is nothing more than a neo-colonial attempt to universalize a dominant ideology all over the world. It is this critique of human rights which will be analyzed in this paper.
Section II will engage this inability of the human rights project to imagine a rights discourse beyond the western tradition; in particular, this paper will use the example of the ‘Islamist’ state to disprove the notion that human rights are universal or are conceived as such. Section III will attempt to demonstrate the dangers which the current human rights discourse poses, and has historically posed, by claiming to be universal, “good” and the only valid form of “rights” as such. The last section of this essay will focus on a rethinking of human rights in terms of the highlighted problems in the previous sections. In short, this paper proposes a ‘rethinking’ of human rights, and the development of a discourse which accounts for the various alternate histories and conceptions of human rights.
II. THE EXISTENCE OF AN ISLAMIC STATE WITHIN THE CURRENT HUMAN RIGHTS DISCOURSE
Freedom of religion is perhaps one of the oldest and most cherished human rights available to people living today. The international community has ensured the protection of this right by recognizing it in nearly every declaration on civil and political liberties . Article 18 of the Universal Declaration of Human Rights (UDHR), for instance, provides that, “Everyone has the right to freedom of thought, conscience and religion...” Recent events, however, beg to question the protection which this right affords. The secular states of the 21st century, while in theory are to be independent of religion, are increasingly regulating religious practice (Mahmood 327). This trend of making religious practice subject to the dictates of secular law, especially human rights, is making this freedom more distant from reality. And this is especially true if we consider the religious practices of nearly 900 million people all over the world – the Muslims.
For many Muslims, “Islamists” in particular, the full realization of Islamic values requires the establishment of an Islamic state (Bavikatte). The state apparatus is an important tool for the realization of Islamic practices, as it provides for the enforcement of Islamic law, and in turn the establishment of Islamic courts. Would such an Islamic state be compatible with human rights? This is the primary question which this section addresses.
Prima facie, this question returns with a negative answer. The idea of an Islamic state would be incompatible with human rights as it is simply inconsistent with the secular “western” ideals of this discourse. An Islamic state would naturally demand the enforcement of laws based on scripture (the Qur’an) and tradition (Sunnah), rather than reason and science, and this in itself is a major deviation from the ‘universal’ tradition of human rights which prides itself in being based on human rationality (Freeman 111). Nevertheless, assuming that the dominant western discourse allows for such a deviation , the real question is whether the laws promulgated under such an Islamic state would violate the tenets of human rights. Before this paper proceeds to such an examination, it is pertinent to note the basic inconsistencies between the concept of rights in the dominant human rights tradition and in Islamist philosophy.
The conception of rights in Islam is far different from the western conception of human rights. Firstly, rights under Islamic law are not universal. All human beings are not guaranteed rights under Islam, and as the following paragraphs will explore, there are sharp differences between the rights of Muslims and non-Muslims, women and men, so on and so forth . Secondly, rights under Islamic law are conditional. This is clear from a bare reading of Section 24 of the Cairo declaration, which makes all rights “subject to the Islamic Shari’ah” . Making rights subject to the Shari‘ah would be extremely problematic for any human rights regime; as this rule would make absolute human rights conditional on the changing circumstances of the Islamic state.
Furthermore, individual rights, according to this discourse, would also be subject to the communal rights; many situations may thus be envisaged where individual rights are sacrificed for protecting community interests (Moosa 10). The preceding point also highlights another difference between Islamic rights and human rights: whereas the human rights discourse is centered on the individual , Islamic rights are centered on the community.
Another important ideological difference is the conception of rights itself. ‘Haqq’, which is the literal translation of rights in Islam, also implies a duty (Ibid. 5). In Islam, therefore, rights are also to be conceived as duties/obligations- for every right, there is a corresponding duty, and only when one fulfills one’s duties is s/he eligible for rights (Ibid. 6). Recognizing this strong emphasis on duties in Islam, many scholars ironically refer to the Universal Islamic Declaration on Human Rights, as the Universal Islamic Declaration of Human Duties (Ibid. 9).
As this paper proceeds to examine the actual inconsistencies between human rights and laws promulgated by an Islamist state, this paper would like to make the following note. There are many Islamic Scholars who maintain that Islamic laws are perfectly consistent with human rights , and their ideology must be considered to form a more informed approach to Islamic law . This paper is, however, just focusing on what Na’im calls the “dominant discourse” (Na’im 14) in Islamic legal thought (which represents the ideology of the ‘Islamist’ which was dealt with above). Therefore, this essay must not be considered to be a commentary on Islamic law, but should rather be understood as an attempt to demonstrate how the religious practices of a community (no matter what its size) may violate the tenets of the current discourse on human rights, thereby losing all protections under it. The ‘Islamist’ discourse thus proves to be convenient choice for this author, both because of the controversial nature of its content, and the recent attention it has received because of the ‘War on Terror’.
There are many supposed contradictions between the substance of Islamist laws and human rights. Firstly, as mentioned above, in an Islamic state – Dār-ul-Islam (land where Islam is sovereign) – non-Muslims would be treated differently than Muslims (Freeman 103). In such a state Muslims would have full-citizenship rights, whereas non-Muslims will not enjoy such protection. For a non-Muslim, the security of their life, liberty, and property would only be guaranteed by the State when they pay a special tax (jizyah) (Na’im 24). In addition to this, non-Muslims would not be allowed to keep high public office positions (Moosa 13). Furthermore, Muslims would be permitted to marry non-Muslim women, but non-Muslims would not be allowed to do the same. The treatment of non-Muslims in this way would be a clear violation of the equal protection right enshrined in the UDHR .
Islamist laws would also restrict the freedom of religion. Apostasy is strictly punishable under these laws, and if a Muslim changes his/her religion, provided that the relevant evidentiary requirements are complete, he/she is liable to the death penalty (Moosa 12). The Islamic law against apostasy has also, over the years, been given a wider interpretation to include derogatory statements against the Prophet Muhammad (PBUH), or against the basic tenets of Islam. This has accordingly also violated the freedom of expression right enshrined in the UDHR, and ICCPR . The Salman Rushdie affair is a good example of this wide interpretation. Salman Rushdie published a book titled “The Satanic Verses” - this book had material which was a cause of disrespect to Muslims around the world. Consequently, the book was banned by many Muslim governments; the ban was followed by various ‘fatwās’ (Religious Declarations), which denounced the book, and ordered for Rushdie’s execution. Imam Khomeini of Iran, for instance, sentenced Rushdie to death in absentia without a charge or trial. Therefore, the western conception of freedom of expression and religion is not compatible within this Islamist framework. This contradiction is, however, extremely ironic. While these Islamic laws violate the freedom of religion enshrined in the UDHR, the prohibition on Islamic countries to enact such laws is also a violation of the same right under the UDHR- nevertheless, it is not surprising to see that only one of these violations is talked about.
A third contradiction, one which is most often cited, is the treatment of women in Islam. The subject of women in Islam is the centre of constant introspection by Islamic scholars. This section will, however, as mentioned above, just examine the dominant discourse on women rights in Islam. According to the dominant discourse, men are considered superior to women, as they are considered their “guardians” (this is the concept of ‘Qawama’ in Islam) (Na’im 37). This concept, by making women subject to the dictates of man, clearly violates the traditional concept of gender equality elucidated in the UDHR. Furthermore, this dominant discourse makes the public sphere the exclusive domain of men. Women are not allowed to leave their private sphere, subject to permission by their male guardians, nor are they allowed to keep public office (Ibid. 43). Moreover, even in the private sphere women are not afforded equal rights. Women, for instance, are not entitled to same amount of inheritance as men are (Moosa 14). The testimony of women is also not considered to be equal to that of men- the evidence of one man being equal to that of two women (Ibid.). In family relations too women are seemingly weaker to men. Men may take up to four wives, whereas women cannot enter into more than one marriage. The laws of divorce also make this differentiation. While men may unilaterally divorce their wives, women may only obtain a divorce through a judicial pronouncement (Ibid.). The issue of the veil (Hijāb) has also repeatedly surfaced in international human rights debates. According to the dominant discourse Muslim women are supposed to cover their bodies leaving only their hands and their faces uncovered. Human rights advocates, however, claim that by compelling women to wear the head scarf, the Islamists severely restrict women to the private sphere. The preceding view has been articulated by the European Court of Human Rights in Sahin v. Turkey, where the court held that the State of Turkey was acting in conformity with human rights when it banned the head scarf in public schools and colleges (Steiner, Alston 625). In light of these differences, it is thus not surprising to see that most Muslim states are not signatories to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (Freeman 112).
Slavery is another subject which provokes the attention of human rights advocates. Though slavery, as an institution, is no longer practiced in most Muslim states, it is not illegal under the provisions of the Islamists doctrine (Na’im 23). Another obvious inconsistency lies in the forms of punishment imposed under Islamic law. Under Islamic law, the more serious offences like fornication, apostasy, theft, and so on, call for a punishment which may be considered cruel and inhumane under the current human rights framework. Fornication, for instance, provided the relevant evidentiary requirement is met, is punished with flogging. Article 5 of the UDHR provides that no one shall be subjected to cruel, inhuman, and degrading punishment- so clearly flogging would be impermissible under this provision.
Therefore, in lieu of above mentioned contradictions between the dominant discourse on Islamic law and the western conception of human rights, it may be safely said that the current human rights framework is likely to fail in imagining the existence of an Islamic state which promotes such laws. This conclusion should lead us to safely assume that the human rights discourse is not universal, as it claims to be; this is not to say that this paper is advocating the incorporation of the above stated laws within the human rights discourse, but rather simply that the human rights discourse should not be treated as the only tradition of rights. The dangers of doing so will be evident from the following section.
III. THE IMPERIALIST HISTORY AND USE OF HUMAN RIGHTS
As the preceding section illustrates that the establishment of an Islamic state within the current human rights discourse is impossible; ironically, as mentioned above, this incompatibility (of Islamic rights and human rights) also violates the human rights of all the ‘Islamists’ who seek to establish such an Islamic state. Why are certain human rights more important than other rights? Are human rights indeed universal? Or more particularly should human rights be universal? The universality of human rights and its true mission has been questioned repeatedly. Some authors term human rights as the “Trojan Horse of Re-Colonization” (Esteva 110); for them, human rights represent nothing more than another imperialistic formula aimed at supplanting the western liberal tradition all over the world. Baxi, for instance, labels human rights as nothing more than an “empty signifier” that is filled by the dominant ideology, which in today’s world emanates from the west (166). Accordingly, human rights are the new tools of western imperialism- the third world being the subject of this imperialism. It is perhaps for this reason, as Rajagopal points out, that human rights violations are unheard of in the first world (171). Violations of human rights in the first world are simply coined as civil rights violations.
Therefore, the phrase “human rights violation” immediately forces the listener to imagine the third world (Rajagopal 171). Why this difference? This section will seek to examine the preceding questions. It is expected that the answers provided in this section clarify the reasons why an Islamic state cannot be imagined within the current human rights framework.
The imperialistic nature of human rights can be understood on two different levels. The first level deals with the neo-colonial nature of the human rights discourse- this level primarily considers the use of human rights as an imperialist device employed by the west. The history of human rights is extremely important in this regard; the west, presented as the sole author of human rights, has maintained itself as the sole enforcer of human rights, many a times enforcing them at its whim and desire. The second level of human rights imperialism shifts its focus from the west to the nation-state. The history of human rights with its state-centric approach removes the ordinary person as the audience of human rights; the state, responsible for the imposition of human rights, is given the authority to confine the audience of human rights. Human rights, at this level, seem to revolve around the dominant ideology of the state- which in turn mirrors the hegemonic western ideology.
The first level of human rights imperialism (i.e. the use of human rights as an instrument of repression by the west) needs to be understood in the context of the dominant narrative of human rights. Human rights, according to the dominant narrative, originated in the west, and consequently they can only be enforced by the west- this dominant narrative has been classified as the “impossibility thesis”. This “impossibility thesis”, in the words of Baxi, forms the basis of human rights dialogue in the west (37). The history of human rights is traced to the Greeks, the Stoics, Christianity, and so forth; however, this history never incorporates writers or social movements beyond the parameters of western philosophy (Douzinas 26; Asad 174). This discourse fails to realize, for instance, the anti-colonial movements in the south (like Gandhi’s Swraj), which centered on the basic human right of freedom for the colonized people (Baxi 41).
Interestingly enough this thesis also ignores centuries old human rights enunciations in other regions like the Islamic world. The “impossibility thesis” is perhaps the biggest tool of repression used by the west. The west, claiming to be the sole enunciator of human rights, took it onto itself to “civilize” the world with human rights. Colonization was cloaked in the ingenious design of “civilizing” the “savage”. The “savage”, brutal in his nature, knew nothing of rights, and what we now call the “third world” needed to be rescued from him. The west became this “savior”, in the words of Mutua, and so began the process of colonization (207).
So in very simplistic terms, the west used the discourse of human rights to justify the entire colonial enterprise. Such was the imperialistic design of the western conception of human rights. What’s troubling is that the human rights of the millions of people who were colonized were ignored; to be classified for human rights, one needed to be classified as a human, and the savages simply did not make the cut. According to Baxi, never before was the plight of so many people made invisible to the world (46). Human rights became the perfect tool for imperialism because they legitimized it; furthermore, human rights succeeded in displacing responsibility for the numerous atrocities that colonization caused. Human rights were the perfect law of irresponsibility . The western conception of human rights delimitated responsibility for state action to a very limited sphere- which was also defined by the state. Human rights became defined in opposition to “evil”-the laws of the savage- so anything which was in opposition to human rights was “evil” and needed to be thwarted. More so, this counterintuitive definition made human rights the repository for “good”, and so anything under this doctrine was automatically legitimized. Therefore, the west took no responsibility for any action taken under the banner of human rights, which is why there is still no official state apology for colonization (Baxi 42).
Human rights not only legitimized colonization, but provided for its continued existence. The local laws, religions, traditions were all made subject to the dictates of human rights and the western conceptions of “justice, equity, and fairness” ; therefore, the colonial powers had the legitimacy to enact any law to stay in control of the colonized people and territory. Even after the conception of the UDHR, the human rights discourse stank of neo-colonialism. The UDHR prized state-sovereignty, and so the state was made the enforcer of human rights (Asad 135). This state-centric approach led human rights to be defined in relation to the “citizen” rather than the “human”. As Baxi terms it, the “pseudospeciation” (178) of human rights defined the “human” in terms of the citizen; thus, all those who were not citizens were effectively deprived of their rights. The colonized savage was not a citizen. The helpless refugee was not a citizen. Minorities too were not complete citizens. The rights of non-citizens were no rights, and so any suffering imposed on them by the state was legitimate (Arendt 276). This state-centric approach to human rights, certainly gave a valuable weapon to the state in furthering its imperial interests.
The human rights discourse gave the colonizer another weapon- the declaration of a state of emergency. The ICCPR allows the state to declare an emergency, which effectively results in the suspension of nearly all the rights guaranteed in the document (Rajagopal 177) . Therefore, the state can legitimately declare a state of emergency and violate the so called “fundamental” rights of the citizen. Any suffering imposed on the citizens during this time would thus be “legal” and the state would not be held responsible for it. Interestingly enough, as Rajagopal points out, the provision of emergency in the ICCPR was introduced by Great Britain-the leading colonizer of that time (177). At the inception of the ICCPR, anti-colonial struggles were rampant all over the world. The colonizer, fearing an emancipated populace, strove to maintain order and control through the provision of a state of emergency (Ibid. 181). The imperial interests behind human rights should thus become clearer, when a document which purports to give universal inalienable rights provides for a clause which allows for the derogation from these very rights.
An additional weapon used in the exercise of imperial power was torture. The human right against torture, though recognized as a ‘Jus Cogens’ right, was used to further the interests of the colonial powers. How did the human rights doctrine allow this clear violation? The human rights discourse neatly distinguished between ‘necessary suffering’ and ‘unnecessary suffering’- the latter being classified as torture (Ibid. 183). ‘Necessary suffering’ entailed the pain afflicted by the state on the “savages” for the “necessary development” of the region. All that was necessary for the “development”- necessary for “civilization”- was not considered as torture (Ibid. 186). “Unnecessary suffering” was, however, strictly not allowed. Predictably, the traditions of the local “savages” met this classification and they were outlawed (for instance, Satti was outlawed under this rubric). So the right against torture while legalizing the suffering imposed by the colonizer, simultaneously categorized as illegal many of the indigenous customs and traditions .
The human rights’ doctrine also silently legalizes a contemporary means of western imperial domination- capitalism and the free market. The human rights doctrine with its heavy reliance on liberal values, like the freedom of choice, is oblivious to economic violence; and this invisibility of economic violence allows western nations to freely and legally plunder the economies of the third world (Ibid. 194). The South Asian economic crisis is perhaps a good example of the use of economic violence. Short term speculators retrieved their investments in a rush from South Asian countries, like Thailand, leaving them with a severe economic crisis. Thousands of people perhaps lost their jobs, inflation rates exploded, the growth rates of these countries plunged, but there was not a single human rights violation recorded (Asad 128). Similarly, economic sanctions are not classified as a violation of human rights, and they are used, more often than not, to coerce economically fragile countries into taking policy decisions against their national interest.
What’s alarming is that where such economic sanctions are imposed, like in the case of Iraq in the 90s, there is little recognition of the human rights violations of the people suffering in that state. On the contrary, the human rights doctrine allows for these violations to continue, and even legitimizes them (by not overtly criticizing them).
As the preceding paragraph suggests the human rights doctrine has been used to advance the imperial interests of the west; unfortunately, this nature of human rights has not changed. The third world is still perceived as the “savage” in need for “civilization”, and the west still sees itself as responsible for the “civilizing” mission. It is thus not surprising to see, as Mutua observes, that most NGOs dealing with human rights violations operate in the third world-with their head quarters in the west (217). This is not to say that no human rights violations take place in the west; they just don’t get noticed. With the third world as the “savage” the west must come to “save” it. The “savior” in the 21st century has new tools of imperialism: humanitarian interventions, regime changes, and the recent addition of the “war against terror”. These new forms of imperial invasions once again result in grave violations of human rights, but yet again these violations are legal- even legitimate- under the current human rights framework.
The paragraphs above dealt with the first level of human rights imperialism. The second level of imperialism is at the nation-state plane. The human rights framework, as established above, is highly state-centric. The UDHR, along with other human rights instruments, is directed towards the state. The state is made responsible for the imposition of human rights, making it a powerful actor in the realization and definition of human rights (Asad 135). In doing so the “citizens” of these states are made the audience of human rights. This equation of citizenship with human rights, gives the state the leeway to define who the citizens are, and in turn define who is eligible for rights. This absolute power of the state in defining “citizenship” gives it the power to define it in line with its dominant ideology; in addition to this, the “margin of appreciation” (freeman 104) afforded to states in interpreting “rights” also gives it the power to define the nature and extent of “rights” given to citizens. For the state, then, human rights represent an “empty signifier” (Baxi 166), which can be used to propagate the dominant ideology of the state.
States have often relied upon the human rights discourse to advance its interests. In defining “citizenship” and “rights” states have managed to deny human rights to millions of people around the globe. Since rights are afforded to “citizens” rather than “humans”, states have historically varied the definition of citizenship to exclude groups that they seek to oppress. For instance, the Nazi regime first deprived the Jews of their citizenship rights before shifting them to extermination camps- once the Jews were stateless, no state was responsible for ensuring that they be provided human rights (Arendt 280). The frightening aspect of this episode was that this act of the Nazi’s was indirectly permitted by the human rights discourse and was consequently considered legal; in many ways this discourse encouraged it, and provided the Nazi’s with a legal loophole to follow through with their imperial design. At other instances, one finds states refusing to afford rights to refugees. Since refugees are not citizens of the state, the state has no obligation per se to bear the expense of providing them with rights (Arendt 278). States have also loosely defined the term “citizenship” to sometimes deprive ethnic and religious minorities of their rights. In America, for instance, African Americans were not recognized as “full-citizens”, and because of this they were legitimately deprived of their rights (Asad 142); the dominant ideology of the American state was “White”, and on this basis it defined citizenship.
The state also relies on its dominant ideology to define “rights”. In Sahin v. Turkey, for instance, the state defined freedom of religion in extremely secular terms- as secularism was the dominant ideology of the state- and the European Court of Justice upheld this interpretation. The state was therefore successful in propagating its ideology through human rights .
The state also has the tools of “necessary suffering” and the declaration of a state of emergency to ensure the thrust of the dominant ideology on the populace. The colonial history of the human rights has given the modern state the perfect means for subjugating dissidents of public policy. If the state wishes to oppress a movement, all it needs to do is declare a state of emergency. Emergencies are a common phenomenon in politically unstable third world countries, creating a complete vacuum of rights. The “necessary suffering” of the state is now in the form of economic development. The dominant liberal ideology of the state demands that it pursues economic development, and any rights compromised in such pursuit are considered a necessary sacrifice. So, for instance, where the construction of a dam would displace millions of people, it wouldn’t be considered a violation of their human rights, as it’s a “necessary suffering” for economic development (Rajagopal 195). Therefore, the state legitimately, under the human rights discourse, sacrifices civil and political rights for economic development.
One of the myths that the preceding paragraphs should serve to rule out is that the human rights discourse is anything but a check on state power. Apart from the great potential of abuse which the human rights discourse allows, the realization of human rights logically requires the expansion of state power. After all, a right to a fair trial or to equal protection of the law necessarily requires the state to expand and develop the machinery for providing these rights. Therefore, the human rights discourse not only allows for an imperial state- it imagines it.
IV. A RETHINKING OF HUMAN RIGHTS
The preceding section highlighted some of the problems with the current framework of human rights. It is not surprising to see that within this framework an Islamic state cannot be envisaged. The dominant western narrative of human rights is going to resist challenges from other ideologies, especially Islam. With Islam representing the anathema of the dominant tradition of human rights, it is not going to be an easy fight for ‘Islamists’ to protect their right of freedom of religion. The State Department of United States, for instance, along with some countries in Europe, is already coming up with strategies to combat what they call “Islamophobia” (Steiner, Alston 621). This inability of the current discourse to imagine a ‘pluriverse’ of rights is exceedingly problematic. As seen above, the current discourse has great potential for abuse- rights are not guaranteed to all “humans”, and the “rights” guaranteed by this discourse are culturally myopic in their application. How then should the human rights discourse be re-imagined?
A starting point for this re-thinking should be the history of human rights. The dominant narrative, as foretold by the “impossibility thesis”, fails to account for the various human rights mechanisms in regions other than the west; more so, it fails to acknowledge the ability of non-western actors to formulate a coherent “rational” discourse of human rights. This inability to imagine human rights emanating from anywhere outside the west leaves the third world in the daunting image of the “savage”, thus making humanitarian interventions (and wars for “democracy” ) endemic in the third world. The human rights discourse must appreciate the rich tradition of non-western nations with human rights, even if their formulation of human rights is different than the west. For instance, most nations are alien to the idea of individualism in human rights, with their values and rights emanating from the community (Medus 13).
For the least, the contribution of non-western countries must be appreciated in the current formulation of human rights. As Waltz points out, many non-western countries contributed towards the drafting of the UDHR- the principle document of human rights (441) . Furthermore, the west should not be looked as a monolith which created or supports human rights; many countries in the west (like the U.S in the 1950s) were not in support of human rights, and have a history of committing severe human rights violations (Waltz 443). The stereotype of the west as the “savior” and the non-west as the “savage” needs to change, as only this change will stop human rights from being used as a vehicle for western imperialism .
More importantly, human rights need to stop being defined in opposition to “evil”. The circular definition of human rights, as the opposite of “evil”, gives the impression that everything in human rights is “good”, and anything or anyone opposed to human rights must necessarily be “evil”. The jurisdiction of rights has, as mentioned in section III, great potential for abuse. Once something is declared legal under the human rights discourse, it must necessarily be considered as “good”; no one thus questions the legitimacy or the morality of an act committed under the cloak of human rights. Consequently, states are free to manipulate the human rights discourse for their own imperial gains. Why must human rights be defined in opposition to “evil” ? Why must they be defined at all? Answers to these questions are warranted, but they are beyond the scope of this paper- what is certain, however, is that the current definition and jurisdiction of human rights is misplaced.
It may also be mentioned that the current state centric approach to human rights is highly problematic and it must change. States should not be given the authority to define “rights” in relation to the “citizen”. Rights should be available to everyone and not just to the political subject/citizen (bios) (Agamben 127). State power in relation to human rights is closely linked to the definitions of “human” “rights” and “universality”. As long as these empty signifiers remain, states will have the power to define them according to their dominant ideology. Rights will not be afforded to those not in power - the weakest group in society (the “Zoë” or bare life in the terms of Agamben) - and this questions the usefulness of having human rights in the first place. It is for this reason that this author proposes the “de creation” of human rights (Baxi 2). The current discourse on human rights does not afford intelligible rights to everyone; also, it fails to provide a suitable avenue of redress to those whose rights have been violated. More so, the concepts of “universality” and the “human ” itself are so problematic that no singular definition is possible. Therefore, a world without human rights (in their current form) might be better placed to deal with human rights violations on the basis of their cultural traditions and basic morality.
Skeptics might argue that a world without “universal” human rights would imply a world without order- a world with grueling human rights violations and anarchy. Their cynicism is nothing more than what the Marxists term as the, “legal fetishism of the law”. A world without law might not be a world without order. Societies have their self-regulating traditions and norms which have governed their conduct for centuries before the conception of the contemporary human rights discourse. Proponents of human rights might argue that contemporary human rights were a response to some of the most gruesome human rights violations, like the Holocaust, and human rights have succeeded in preventing the repetition of such acts. However, has the human rights discourse really succeeded in preventing mass scale atrocities? A preliminary look at the last 15 years alone is enough to realize that human rights have done no such thing. Rwanda and Bosnia are testaments to the failure of human rights. Human rights clearly failed to prevent the gross neglect of human life in these two regions, and this failure questions the efficacy of human rights. Therefore, human rights must be “de created” in order to manage many of problems they currently face. This time, however, any attempt to create human rights must be approached with caution and care- in Baxi’s words “we must all approach human rights as strangers”(5).
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