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The first article of the United Nations’ declaration of Human Rights says that all human beings are born free and that they can claim the respect of their dignity and inalienable rights. The most elementary ideals and values of human rights are expressed in this article: human dignity, freedom and equality.128 Those values are universal and to be found in all cultural hemispheres.
Human Rights give an answer to the fundamental question of how human beings should go along with each other. Those basic principles are part of any ethnic or religious system. They can be defined as a “Golden Rule”. Nevertheless, they only found their way into the constitutions with the Enlightenment in the end of the 18th century. It was the American Independence and the French Revolution that helped to map out a universal acceptance and recognition of certain inalienable rights. But it took another century and a half to establish those rights on a world level. This took place with the United Nations’ Declaration of Human Rights in 1948. Although the 1948 Declaration cannot be defined as a law-making treaty, it is nevertheless considered an integral part of international legal standards and commonly accepted practice.
In the aftermath of 1948, several additional efforts were made in order to translate the Declaration into political action and to fill the rather abstract declaration with concrete illustration. In fact, it was the Declaration that led to regulate many international crime conventions under the United Nations’ authority. The 1951 convention to prevent homicide was followed by the international convention to outlaw racial discrimination (1969), the 1975 Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and efforts to end the discrimination of women (1981) and children (1990), to name but a few. Generally speaking, most principles of the system of international human rights have the effect of customary rules of international law. Therefore, they find their application in all national and international relations of individuals, groups, governments or states.129
Regarding criminal proceeding, Article 10 of the Declaration provides a basic guideline. It demands that everybody is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.130
However, the United Nations Declaration and the various resolutions can only provide for a broad definition, leaving the exact margins of interpretation and its enforcement to the single states.131 As a matter of fact, there is no general theory or even one definition of human rights as the views and attitudes of the Islamic world as opposed to opinions of the West on this issue show.
The popular image of Islamic law in the Western world is usually characterized by lashes, cutting hands and capital punishment. In the eyes of many, those elements represent the cruellest hardship possible, give way to a return to the medievalism and therefore contradict the implementation of modern human rights into the Muslim world. The principles of those rights seem to be completely absent in Muslim countries from a superficial Western stand point. However, much depends on the definition of Human Rights and its implementation because there is no general theory of Human Rights.132
The most significant difference between modern westernized attitudes towards human rights and their implementation and an Islamic perspective is the function of religion in general and the position of God in particular. Whereas God hardly finds his place anymore in Western lay societies, he is the seat of justice in the Muslim world. Islam sees God as the ultimate source of justice, which includes the Human Rights. The main goal of God's message to human kind is the attainment of Justice. At this point there is a strong connection between Justice and Islam. But however different the starting point may be, the general outcome is, at least in principle, the same. The advocated key principles emphasise at equality, liberty and justice and brotherhood.133
Furthermore, Islam has encouraged two other ideas for the promotion of human rights and human dignity: The principles of compassion and mercy. It is on their basis that the Islamic law presents a universal approach to human rights which is much broader than the list of enumerated modern human rights’ standards. Therefore, for Muslims human rights issues are fundamental to the quality of their lives.
Returning to Islam one has to state that according to the Holy Koran, the true Islamic faith cannot be achieved unless Human Rights are secured for every individual and group in a Muslim state. The Koran itself includes more than 20 basic Human Rights such as the right of life, dignity and freedom of human beings, protection against harassment or social security.134 In the Western world, those principles were only legally recognized in the aftermath of the French Revolution whereas there have been part of Muslim thought for more than a millennium. This is why the Islamic law is not necessarily a positive law arising from international human rights conventions which is essentially based upon acceptance, adherence and ratification by single nations. However, this does not mean that Islamic human rights and the system of international human rights contradict each other or can be seen as inferior or superior to one another. The Islamic standard is based on moral-legal autonomy whereas the second one is grounded on conventional ratification. In practice, the human rights principles should be fulfilled by all states that have long been affected by Islamic human rights provisions.135
As a matter of fact, no fundamental law stands in between the application of modern Human Rights and the religious practice of Islam. Islam is a complementary Human Rights system, as P. Antes points out.136 Members of Muslim societies have to stand firm against any abuse of rules that are part of the Koran and their religion and therefore they also have to accept and implement Human Rights. On the whole, the core principles of those instruments that deal with the principles of criminal justification “have integrated the principles of Islamic Law into the protection of humans according to the principles of brotherhood, equality and justice.137
Nevertheless, one has to admit that the weakest point concerning this interpretation is the fact that duties towards the community rank first in the Muslim faith. On the contrary, individual rights in the sense of legal claims rank only second. In order to establish human rights as individual rights within the Muslim community, it is necessary to reverse this set of priorities and to place the concept of individual rights first.138
The examples for punishment given above are widely regarded as cruel examples of Islam criminal law and seem to contradict a modern Human Rights practice. Nevertheless, one should not over-simplify at this point. The application of those practices varies from country to country. Legal authorities can change the means of punishment and avoid cruelty if circumstances justify such exceptions. However, orthodox hardliners oppose such a practice and call for the one-to-one implementation of the ultimate means of punishment as it is suggested (but not prescribed) by the Sharia. Within this context there have been many challenges from Islamic scholars who have rejected the very notion of western human rights which provokes much concern surrounding tensions between the Islamic interpretations of human rights and the West’s stand point.139
To add to the complexity of the situation one needs to acknowledge that there is no general rule as a comparison of different Moslem countries easily proves. Furthermore, Western countries also do not always agree on common standards concerning human rights, as the dispute over the death penalty between most European countries and the United States shows. Therefore, the Western view is at least partly biased and does not always fully understand legal practice in the Moslem world.
Much has already been written about the question of the influence of Human Rights regarding Islamic criminal law. As a matter of fact, Islamic law does not necessarily stand in a stark contrast to basic human rights as it is sometimes claimed. Often, it refers to the same principles but does result in a different interpretation. In other cases, advocating certain rights automatically implies the acceptance of obligations referring to those rights. A good example illustrating this point is the free expression of speech.
128 Article 1 of the Universal Declaration of Human Rights, 1948.
129 Malikain, Farhad, The Concept of Islamic International Criminal Law. A comparative study, London 1994, 160ff.
130 Article 10 of the Universal Declaration of Human Rights.
131 Douzinas, C., The End of Human Rights, London 2000, 4ff.
132 Douzinas, The End of Human Rights, London 2000, 4ff.
133 Haleem, Muhammad Abdel, Human Rights in Islam and the United Nations Instruments, in: Eugene Cotrane and others , Democracy, the Rule of Law and Islam, The Hague, London, Boston 1999.
134 Reichelt, A., Islam und Recht, Online: www.arei.purespace.de/recht/rechtsschulen.htm (05.03.2002).
135 Mayer, Ann Elisabeth, Islam and Human Rights: Tradition and Politics, London 1991, 56ff.
136 Antes, Peter, Der Islam als politischer Faktor, Hannover 1997, 81ff.
137 Malekian, The Concept of Islamic International Criminal Law. A comparative study, London 1994, 161ff.
138 Bassam Tibi, Fundamentalismus im Islam – Eine Gefahr für den Weltfrieden?, Darmstadt 2000, 80ff.
139 Bielefeld, H., Muslim voices in the human rights debate, Human Rights Quarterly 17 (4), 1995, 587 – 617.
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