Human Rights of Religious Minorities and of Women in the Middle

East
Ghanea-Hercock, Nazila.
Human Rights Quarterly, Volume 26, Number 3, August 2004,
pp. 705-729 (Article)
Published by The Johns Hopkins University Press
DOI: 10.1353/hrq.2004.0035

For additional information about this article

http://muse.jhu.edu/journals/hrq/summary/v026/26.3ghanea-hercock.html

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HUMAN RIGHTS QUARTERLY

Human Rights of Religious Minorities

and of Women in the Middle East
Nazila Ghanea*
ABSTRACT
This article considers the human rights situation of religious minorities
living in the Muslim Middle East. It notes the common thread of human
rights abuses that they face, and analyzes this in the light of Muslim legal
concepts and standards. The article then explores whether or not the
improvement of the human rights situation of religious minorities in the
Middle East could be attempted from within a Muslim religious framework.
Can the emancipatory interpretation of Islamic traditions and laws be used
to eliminate the obstacles to the realization of their rights? This examination is carried out in the light of the literature and activism on the
promotion of the rights of women under Muslim and Middle Eastern rule.

I.

INTRODUCTION

November 2003 witnessed the bombing of two Istanbul synagogues

injuring and killing over 300 victims. October 2001 saw the killing of
eighteen Christians during worship in Bahawalpur, Pakistan. Attackers drew
a connection between the existence of Christians in their midst and the
allied bombings in Afghanistan. The weekend of 31 December 1999

* Nazila Ghanea is the MA Convenor at the University of London, Institute of Commonwealth

Studies. Her research has focused on freedom of religion or belief, religious minorities in the
Middle East, the human rights of women, and the UN human rights machinery. Her
publications have included a monograph Human Rights, the UN and the Bahs in Iran (The
Hague: Kluwer Law, 2003) and an edited collection The Challenge of Religious Discrimination at the Dawn of the New Millennium (Leiden: Martinus Nijhoff, 2003).
Thanks are extended to Professor Tim Shaw, Dr. Katarina Dalacoura, and Tarja Martikainen
for their comments on earlier drafts of this article.

Human Rights Quarterly 26 (2004) 705729 2004 by The Johns Hopkins University Press

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through 2 January 2000 saw the killing of twenty-one Coptic Christians in

the village of Al-Kosheh in Egypt. This was carried out by mobs as security
officials stood by and did nothing to stop the attacks. March 1999 saw the
imprisonment of thirteen Jews in the Iranian city of Shiraz. The thirteen were
accused of espionage for the United States and Israel.1 July 1998 saw the
execution of a Bah in Mashhad.2 This latest execution was allegedly due
to the victim converting a Muslim to the Bah Faith, but thousands of
Bahs in Iran have been executed over the past century and a half accused
of all kinds of religious and political crimes.3 These examples provide just
a glimpse into the numerous range of cases in the Middle East of
governments turning a blind eye towards or being directly involved in
attacks on non-Muslims.
This article is focused on the human rights of religious minorities4 in the
contemporary Muslim Middle East5 and the dilemmas faced by these
religious minorities6 living alongside Muslim majorities. This article begins
analysis in the second part by exploring the basis of the term Muslim
politics and its relationship to the study of the human rights of religious
minorities in the Middle East. The term is utilized to refer to the symbolic

1.

2.
3.
4.

5.

6.

This event was covered widely by the international press. See, e.g., John F. Burns, Arrests
Shake Ancient Roots of Irans Jews, N.Y. TIMES, 17 October 1999, available at www.la.
utexas.edu/chenry/aip/press99/101799iran-jews.html. For an overview of the international response see also Ariel Ahram, Jewish Spies on Trial: A Window on Human
Rights and Minority Treatment in Iran, WASH. INST. NEAR E. POLY, RES. NOTE 7 (Aug. 1999),
available at www.washingtoninstitute.org/junior/note7.htm.
NAZILA GHANEA, HUMAN RIGHTS, THE UN AND THE BAHS IN IRAN 378 (2003). This victims name
was Mr. Ruhollah Rawhani. His execution added to the 20,000 Babs and Bahs killed
in Iran in the 1800s and the more than 200 killed over the 1980s and 1990s.
For a further discussion see id.
MARIO APOSTOLOV, RELIGIOUS MINORITIES, NATION STATES AND SECURITY: FIVE CASES FROM THE BALKANS
AND THE EASTERN MEDITERRANEAN 17 (2001). Despite the distinction, the term religious
minorities is used interchangeably with the term non-Muslim minorities in this article.
The focus is not, therefore, on Muslim minority groups such as the Shia in countries
where the Sunni are in the majority, or vice versa. Apostolov produces different
categorizations for the study of religious minorities, such as classification in terms of,
their origin, existence of an ethnic element in their identity, dominant or non-dominant
position in society, degree of tension or oppression by the regime, and the degree of
communal fragmentation. Focusing on their position in society, religious minorities can
also be distinguished according to those that are, dominant, tolerated, and discriminated. Id.
The focus of this study is only on the Muslim Middle East, as serious consideration of
either Middle Eastern secular states or those with other religious dominance (e.g. Israel
and Judaism) or non-Middle Eastern Muslim states would move this study beyond the
limitations and scope of this article.
The term religious minorities used in this context could also include Muslim
minorities, such as Shii minorities in Sunni majority areas and Sunni minorities in Shii
communities. However, to allow sufficient focus, attention will be on non-Muslim
religious minorities.

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capital and the shared ideas and practices of Muslims that can be mobilized
to impact the human rights of religious minorities. Once the article has
noted the common thread of abuses of the human rights of non-Muslims in
the Middle East, the linkage is explored between this situation and Muslim
legal concepts on the one hand and a number of recent Muslim texts on
human rights on the other.
Having established that Islam continues to be utilized and exploited in
the Middle East as a legitimating factor behind repressive policies against
religious minorities, the third part of this article explores the assertion that
only the removal of religion from the Middle Eastern public sphere can hope
to remedy the situation. This is integral to the main premise of the article,
which is that improvement in the human rights situation of the Middle Easts
religious minorities is not dependent on the attempted obliteration of the
religious framework, due primarily to pragmatic considerations. The article
then shifts to the fourth part, comparing the literature and activism promoting
the rights of women under Muslim and Middle Eastern rule with that of
religious minorities. This comparison points to the utility of the Muslim point
of reference as a leverage towards the emancipation of women. The article
finally concludes that religious minorities may have much to gain from
similar approaches of mobilization within Muslim terminology and frameworks toward their emancipation. Creating such acceptability within the
religious framework of the majority is actually presented as the most
amenable option at present, as the numbers and standing of religious
minorities in the Middle East today do not allow for other alternatives.
This study faces a number of dilemmasthat of not essentializing the
vast divergence in the situation of human rights in Muslim contexts, while
noting the thread of human rights abuse against its religious minorities; that
of examining the human rights of religious minorities in the Middle East
where the term is strongly contested by the states of the region;7 and that of
defining and delimiting what is meant by the term Muslim politics.

7.

Apostolov puts the dilemma in a wider context, arguing that The logic of contemporary
international relations, centred on the national state, hampers the recognition of national
and, even more so, religious minorities as subjects of international law. Some experts
stress the necessity of such recognition in order to give minorities in divided societies a
say in determining their fate. APOSTOLOV, supra note 4, at 174.

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II. MUSLIM POLITICS AND RELIGIOUS MINORITIES

A. The Human Rights of Religious Minorities in the Middle East
The starting point of this analysis is human rights standards as agreed and
enshrined in international human rights texts8 and the resulting UN
machinery that has been set up to monitor compliance. Through these
standards and this machinery, Middle Eastern states have voluntarily
accepted legal obligations9 to uphold the freedom of every individual to
hold, practice, and manifest the religion or beliefs of his choice.10 These
standards have human rights implications for both religious minorities as
communities and for religious minorities as the individual membership
composing them.11
From the reports of the UN Special Rapporteur on Freedom of Religion
or Belief from 1995 to 2003, it can be noted that the human rights dilemmas
facing religious minorities in the contemporary Middle East range from civil

8.

9.

10.

11.

Internationally agreed human rights standards regarding religious minorities are primarily
encapsulated in the Universal Declaration of Human Rights, adopted 10 Dec. 1948,
G.A. Res. 217A (III), U.N. GAOR, 3d Sess., (Resolutions, pt. 1), at 71, U.N. Doc. A/810
(1948) art. 18, reprinted in 43 AM. J. INTL L. Supp. 127 (1949); International Covenant on
Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st
Sess., Supp. No. 16, art. 18, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into
force 23 Mar. 1976); Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, adopted 25 Nov. 1981, G.A. Res. 36/55,
U.N. GAOR, 36th Sess., Supp. No. 51, U.N. Doc. A/36/51 (1981), reprinted in RICHARD B.
LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 490.1 (1990).
Though the 1981 Declaration on the Elimination of All Forms of Intolerance and
Discrimination Based on Religion or Belief, supra note 8, arguably sets out the most
thorough and focused text on freedom of religion or belief, its status as a Declaration
means that it is not legally binding.
See William Barbieri, Group Rights and the Muslim Diaspora, 21 HUM. RTS. Q. 907, 926
(1999). It is interesting to compare this list of human rights challenges facing religious
minorities in the Middle East with the rights that are being pursued by Muslims in the
European context. Barbieri notes that a number of prospective group rights are
intimated by the agenda of recognizing the human right to religious freedom of Muslim
minorities in the countries of Western Europe. These include: collective rights, such as
the right to wear head scarves even in self-consciously laicized public schools, the right
to take time off from work to engage in prayer and the celebration of holy days, and the
right to polygamous marriage; and corporate rights, such as the right to institute public
prayer calls, the right to receive public funding for religious instruction on par with other
established religious groups, and the right to carry out the ritual slaughter of animals for
religious purposes. Barbieri distinguishes between collective and corporate rights,
and between nondomination rights and rights of self-determination. Id.
Relevant cases will be put in footnotes 1226 from the reports of the UN Special
Rapporteur on Freedom of Religion or Belief. These cases are by way of illustration and
do not claim to be either exhaustive nor necessarily representative of incidents that
exclusively occur in the Muslim Middle East in relation to religious minorities.

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and political rights, to economic, social and cultural rights. Because there is
insufficient opportunity to explore detailed empirical examples, this article
will rely on the following select, but representative, range from the Special
Rapporteur regarding the categories of human rights challenges facing nonMuslim minorities in the Middle East. The challenges that affect religious
minorities as individuals include: violations of physical integrity and the
right to life;12 denial of citizenship13 and denial of certain civil rights, such as
registration of marriages or births;14 discrimination in the judiciary;15
exclusion from employment in certain government sectors, particularly from
the army, judiciary and senior educational posts;16 prohibition of the

12.

13.
14.

15.

16.

See Report submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with
Commission on Human Rights resolution 1996/23, U.N. ESCOR, Commn on Hum. Rts.,
54th Sess., Agenda Item 18, 60, 66, U.N. Doc. E/CN.4/1998/6 (1998) In Iraq, two
Christians were reportedly killed in response to a fatwa to that effect issued by an imam.
The following reports were also noted: reports of mistreatment in Afghanistan, Iran,
Pakistan, and United Arab Emirates; reports of arrests and detentions in Iran and
Pakistan; reports of murders in Iran, Iraq, and Pakistan; and allegations that security
forces murdered two Assyro-Chaldean suspects without proof for allegedly murdering a
Muslim in Iraq. See also Report submitted by Abdelfattah Amor, Special Rapporteur, in
accordance with Commission on Human Rights resolution 1995/23, U.N. ESCOR,
Commn on Hum. Rts., 52d Sess., Agenda Item 18, addendum, 79, U.N. Doc. E/CN.4/
1996/95/Add.2 (1996). In Iran, 201 Bahs were assassinated and fifteen disappeared
and were presumed dead between 1979 and 1996. Three Protestant pastors were
murdered in 1994, leading to a great sense of trauma in the Protestant community.
See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with
Commission on Human Rights resolution 1996/23, supra note 12, 58, discussing the
denial of citizenship to non-Muslims in Kuwait.
See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur on Freedom of
Religion and Belief, in accordance with Commission on Human Rights resolution 2002/
40, U.N. ESCOR, Commn on Hum. Rts., 59th Sess., Agenda Item 11(e), 53, U.N. Doc.
E/CN.4/2003/66 (2003). In Jordan, a Christian mother was deprived of custody of her
children because her late husband had converted to Islam prior to his death. The
Supreme Court rejected her appeal and authorized the removal of her children to her
brothers custody because he too had converted to Islam. See also Report Submitted by
Mr. Abdelfattah Amor, Special Rapporteur on Freedom of Religion and Belief, in
accordance with Commission on Human Rights resolution 2000/33, U.N. ESCOR,
Commn on Hum. Rts., 58th Sess., Agenda Item 11(e), 71, U.N. Doc. E/CN.4/2002/73
(2002). In Egypt, birth certificates were denied to children born to a Bah couple.
See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with
Commission on Human Rights resolution 1995/23, supra note 12, 45. In Iran, the
court system reportedly often discriminates against non-Muslims and decides in favor of
Muslims, especially in the lower courts.
See id. 44. In Iran, religious minorities do not have professional access to the army and
judiciary, generally lack access to government posts, and are limited in their career
development to the rest of the administration. Non-Muslim owners of grocery shops are
required by the government to indicate their religious affiliation on the front of their
shops. Id. 44. Bahs reported to have no access to posts in the government
administration. Id. 64. Bahs were also severely affected in the private sector. Id.
65.

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marriage of a non-Muslim man with a Muslim woman;17 restrictions on

freedom of movement, particularly regarding leaving the country;18 and
severe restrictions on missionary activities.19 The human rights challenges
that affect non-Muslim religious minorities as communities include: denial
of recognition as a religious community and a resulting denial of any kind of
political representation;20 denial of education;21 difficulties faced in attempting to run separate educational facilities (minority religious schools) or in
having their religion taught in public schools;22 restrictions on freedom of
worship or other religious activities;23 confiscation or threats on religious

17.

18.

19.

20.

21.
22.

23.

See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with
Commission on Human Rights resolution 1996/23, supra note 12, 68. A Christian was
reportedly arrested, imprisoned, and punished by lashes in the United Arab Emirates due
to his marriage to a Muslim woman; his arrest was followed by the forced annulment of
the marriage.
See Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with
Commission on Human Rights resolution 1995/23, supra note 12, 62. In Iran, Bahs
reportedly face major obstacles to obtain passports and exit visas due to the requirement
that religious affiliation be stated in application forms for both, thus restricting their
freedom of movement.
See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with
Commission on Human Rights resolution 1994/18, U.N. ESCOR, Commn on Hum. Rts.,
51st Sess., Agenda Item 22, II, U.N. Doc. E/CN.4/1995/91 (1995). In United Arab
Emirates, there were reports of a ban on the distribution of religious literature,
proselytizing by non-Muslims, and a case of arrest and imprisonment for proselytizing.
See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with
Commission on Human Rights resolution 1996/23, supra note 12, 56, 57. In Iran, the
Bahs were denied recognition as a religious minority and were accused of being
political and counter-revolutionary. Id. 56. Furthermore, Bahs were denied any kind
of political representation. Id. 61.
Id. 59. In Iran, Bahs have been denied the right to enter any university from 1979 to
the present day.
See Report on Civil and Political Rights, Including Intolerance, Submitted by Mr.
Abdelfattah Amor, Special Rapporteur, in Accordance with Commission on Human
Rights Resolution 2000/33, U.N. ESCOR, Commn on Hum. Rts., 57th Sess., Agenda
Item 11(e), 160, U.N. Doc. E/CN.4/2001/63 (2001). In Turkey, there were reports of
the banning of religious seminaries. Id. In Iran, the directors of religious minority schools
had to be Muslims. Report submitted by Abdelfattah Amor, Special Rapporteur, in
accordance with Commission on Human Rights Resolution 1995/23, supra note 12,
42.
See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in Accordance with
Commission on Human Rights Resolution 1996/23, supra note 12. In Kuwait, Mauritania,
Oman, Qatar, and Yemen, restrictions were placed on religious matters for non-Muslims.
Id. 58(d). In Kuwait and Qatar, the practice of religion by non-Muslims has to be
restricted to the confines of the homes of members. Id. 63(f); In Iran, restrictions were
placed on the religious activities of Protestants; churches were ordered closed and the
number of services held was limited. Report submitted by Abdelfattah Amor, Special
Rapporteur, in accordance with Commission on Human Rights resolution 1995/23,
supra note 12, 73. There were also reports of pressure and close surveillance of
Muslim converts to Protestantism, in attempts to coerce such converts to abandon their
religious practices. Id. 74.

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property, land, and places of worship;24 interference with the election of

leaders and representatives;25 and denial of freedom of expression.26
Having noted the commonality of a broad thread of shared human
rights challenges facing religious minorities in the Middle East, both in the
individual and collective aspects, the question still remains of what this may
have to do with the fact that such religious minorities happen to live in a
part of the world where the majority are Muslims, and where the leadership
may be justified by reference to Islam? Do the minority groups human
rights dilemmas have anything at all to do with Muslim politics? This
question of the possible linkage between the human rights situation of
religious minorities in the Middle East and Muslim politics is crucial to
examining the context and framework of analysis of this study.

24.

25.

26.

See Report on the Elimination of All Forms of Religious Intolerance, Prepared by

Abdelfattah Amor, Special Rapporteur of the Commission on Human Rights on Freedom
of Religion or Belief, U.N. GAOR, Hum. Rts. Commn., 57th Sess., Agenda Item 111(b),
29, U.N. Doc. A/57/274 (2002). In Egypt, eleven Copts were injured and fifteen homes
were burned due to the ringing of Church bells. Id. In Turkey, religious property was
confiscated. Report on Civil and Political Rights, Including Intolerance, Submitted by Mr.
Abdelfattah Amor, Special Rapporteur, in Accordance with Commission on Human
Rights Resolution 2000/33, supra note 22, 160. Restrictions on religious minorities
were also reported in Kuwait and Pakistan. Report Submitted by Mr. Abdelfattah Amor,
Special Rapporteur, in accordance with Commission on Human Rights Resolution 1996/
23, supra note 12, 64. In Iran, Bah properties were confiscated and Bah holy
places were desecrated and destroyed by the authorities. Report submitted by Abdelfattah
Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution
1995/23, supra note 12, 59, 61, 62. Also in Iran, property belonging to Iranian
Protestants was confiscated and their bank accounts were frozen. Id. 76.
See Report on Civil and Political Rights, Including Intolerance, Submitted by Mr.
Abdelfattah Amor, Special Rapporteur, in Accordance with Commission on Human
Rights Resolution 2000/33, supra note 22, 160. In Turkey, there were reports of
interference with procedures for electing religious dignitaries. Id. In Turkey, non-Muslims
reportedly live under the threat of losing their places of worship. Report Submitted by Mr.
Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human
Rights Resolution 1994/18, supra note 19. In Iran, the Bahs have experienced the
denial of the practice of their Faith and the prohibition of Bah organizations since
1983, resulting in the denial of the right to elect and operate administrative institutions.
Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1995/23, supra note 12, 59.
See Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in Accordance with
Commission on Human Rights Resolution 1996/23, supra note 12, 63(d). In Kuwait,
Oman, and Yemen, the local publication of non-Muslim religious materials is prohibited.
In Iran, bibles were confiscated, a prohibition was placed on the sale of bibles, and
restrictions were placed on all religious publications. Report submitted by Abdelfattah
Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution
1995/23, supra note 12, 73.

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B. Is There Such a Thing as Muslim Politics?

The term Muslim politics is itself problematic on a number of grounds. To
begin, it is criticized for implying a monolithic portrayal of not only the vast
diversity of Muslim peoples across time and space, but also the variety of
political contexts that have emerged across this spectrum. A number of
thinkers have, quite rightly, criticized studies that rely on such essentializing
assumptions. However, it is also true that the understanding of the critique
of Orientalism has become so pervasive that:
no criticism, be it of despotic regimes ruling the Middle East, of fundamentalism, or of the Islamic pre-modern view of the world, can go unscathed without
being disputed to be an expression of Orientalism . . . Middle Easterners and
Muslims also condemn critical comparisons and believe to see in them sinister
political objectives.27

Nevertheless, numerous Muslim believers, leaders, and communities

are buttressed by this same essentializing supposition, that their ways are
authentically and exclusively Muslim and that others are not. Such
presumptions are precisely where the Muslim majority draws its ideological
support and confidence from, so to dismiss them entirely would neglect the
vibrancy of the claim of Muslim law or politics as a unifying factor.
Eickelman and Piscatori define this reading of Muslim politics as relying
on its intimate connection with the process of symbolic production.28
Within this context, the competition is over the right to manipulate the
symbolic capital of Islam.29
This article accepts the duality in the implications of Muslim politics.
The term should not be taken to justify collapsing all Muslims and their
politics into one inevitable path. However, dismissing it entirely would also
be foolishas the clarion call of Muslim politics does indeed provide a
platform for various leaders to mobilize Muslims across numerous political
and ethnic divides. Tibi explains this duality as follows:
[A] subtlety in the study of the Islamic culture needs to be honored. The
assumption that there exists a monolithic Islamic cultural standard is utterly
wrong. In cultural terms, Islam can be found in a diversity of local cultures,
however, a sweeping generalization of this observation leads to overlooking the
basic elements of Islamic civilization. . . . Scholars who exclusively stress the
diversity of Islam often ignore that Muslims, be they in the Middle East, South
Asia, or sub-Saharan Africa, share a virtually consistent common world view.

27.
28.
29.

Bassam Tibi, Islamic Law/Sharia, Human Rights, Universal Morality and International
Relations, 16 HUM. RTS. Q. 277, 294 (1994).
DALE F. EICKELMAN & JAMES PISCATORI, MUSLIM POLITICS 28 (1996).
Id. at 153.

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Without taking this world view into consideration, one may fail to understand
properly the obstacles of establishing the universal concept of human rights in
the non-Western societies described as Islamic.30

While this quotation may have actually overstated the case, the
argument remains that one may perceive the common trace of positive
reaction to the couching of political goals in religious terminology across
various Muslim societies. Eickelman and Piscatori argue that [A] constant
across the Muslim world is the invocation of ideas and symbols, which
Muslims in different contexts identify as Islamic, in support of their
organized claims and counterclaims.31 One such unfortunate invocation
has been the recurring infringement on the rights of religious minorities.
Perhaps in the mobilization of the symbolic capital of what constitutes
Islam is the concurrent underlying search for what Islam is not hence
the utility of non-Muslims as a necessary counterbalance to the generation
of Muslim politics.
In this article, while the essentializing presumptions behind Muslim
politics are rejected, the benefit of the notion of Muslim politics as a
symbol containing a powerful platform for mobilization is not. It is this same
symbolic capital of Islam that can be utilized to impact the rights of religious
minorities. Though thus far this capital has been manipulated to the
detriment of religious minorities, it can be recast in order to encourage
respect for their rights.
Reference is therefore intentionally made in this article to Muslim
rather than Islam when referring to the body of widely shared, although
not doctrinally defined, tradition of ideas and practice32 emerging from the
believers of Islam. This is in order to distinguish such practices and ideas
from Islam as a religion, and to avoid linkage between such practices and
the theology of Islam.33 The only thing that is Muslim about such practices
is the language employed to sustain them and the claim of their association
to that religion.34 It is not the role of this author to judge the authenticity or
theological merit of such assertions about proposed linkages to Islam as a

30.
31.
32.
33.
34.

Tibi, supra note 27, at 295.

EICKELMAN & PISCATORI, supra note 28, at 4.
Id.
However, the term Islam is maintained where the original source being quoted has
used this term, or when reference is being made to original religious texts or to those who
are alleging a linkage between their practice and the religion of Islam.
In the context of womens rights under Islam, for example, emphasis is also placed on the
use of religion as national or communal cement and the control over women in the
name of religion. Marie-Aimee Helie-Lucas, Strategies of Women and Womens
Movements in the Muslim World vis--vis Fundamentalisms: From Entryism to Internationalism, in THE RIGHTS OF SUBORDINATED PEOPLES 251, 266 (Oliver Mendelsohn & Upendra
Baxi eds., 1994).

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religion, but solely to examine the consequences of such assertions for nonMuslim religious minorities.

C. Muslim Practice and the Treatment of Religious Minorities

Within this understanding of Muslim politics we are able to examine the
Muslim record on the treatment of religious minorities, widely held
assumptions about the questionable ultimate loyalties of non-Muslims, and
the asserted justifiability of the unequal citizenship of non-Muslims in many
Muslim states, resulting in their problematic de jure or de facto status. This
underlying inequality and vulnerability primarily comes into focus at times
of economic and political flux, when the underlying unease with the
presence of non-Muslims within Muslim states is brought to the fore most
vividly.35 This indicates either a fundamental discomfort with the nonMuslim presence or their propensity for being exploited in order to provide
distraction in times of trouble. This exploitation may involve a range of
actors, depending on the particularities of the case at hand. From the five
cases given at the outset of this article it can be seen that the first and second
examples resulted from individual action and not governments, the third
related to mob action and the clear lack of response by governmental
officials, and the fourth and fifth exclusively involved governmental action.36 These examples occurred at times of severe social disruption,
heightened political tension, and periods involving serious societal disjuncture between liberals and conservatives.
The gravity of the situation, as well as a historical pattern of discrimination against religious minorities, has led writers like Arzt to argue that such
minorities in Muslim lands deserve more support from international human
rights movements.37 Esposito has concluded that the rights of non-Muslim
minorities in an Islamic state remains an unresolved issue.38 Further An-

35.

36.

37.
38.

For example, see the work of Michael Fischer describing this phenomenon in Iran. He
addresses the periodic attacks on Irans religious minorities as a religiously phrased
protest or political protest in Islamic idiom. M.J. FISCHER, IRAN: FROM RELIGIOUS DISPUTE TO
REVOLUTION 18486 (1980).
For the case of the thirteen Jews of Shiraz see Burns, supra note 1. Government
culpability in the case of Ruhallah Rawhani is clear from the fact that he was executed
in prison in Mashhad. For details see, Voice of America, Voice of Americas Editorial on
the Execution of Bah in Iran (27 July 1998), transcript available at www.uga.edu/
bahai/News/PRVOA1.html.
Donna E. Arzt, The Treatment of Religious Dissidents under Classical and Contemporary
Islamic law, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: RELIGIOUS PERSPECTIVES 387, 452
(John Witte Jr. & Johan D. van der Vyver eds., 1996).
JOHN L. ESPOSITO, ISLAM AND POLITICS 291 (3d ed. 1991).

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Naim has argued that it is imperative that the precise implications of

religious liberty and the rights of religious minorities be authoritatively
discussed and settled within the Islamic tradition.39 This is not to argue that
there is just one universal Muslim position that is inherently against respect
for the human rights of religious minorities, but that resort to any religious
ammunition in the repression of others needs to be resisted. In this case it
seems to be particularly preponderant and entrenched.

D. Debates Regarding Human Rights and Muslim Practice

Ali delineates three main types of arguments in the discourse of human
rights in the Islamic tradition:
There are those (usually) Muslim scholars who engage in the dialogue as
apologists for the Islamic tradition, and are unwilling to take on board the
diversity within that legal tradition and will only use in their arguments,
traditional, conservative opinions. Then there are writers who, though conceding some reference to human rights in Islam, argue that there is no worthwhile
discourse to engage in. Such writers primarily use as examples the literal,
traditional, simplistic approach of Muslim writers on the subject citing legal
documents of countries such as Saudi Arabia and the Sudan which are not
representative of the true spirit of Islam, being, in this writers opinion,
unrepresentative authoritarian regimes. The category of scholars who write in a
true comparative spirit willing to explore the diversity of Islamic jurisprudence
and attempting to comprehend the concept of human rights in the Islamic
tradition is a very small minority when compared to the total number of Islamic
jurists.40

Ali accurately highlights the dearth of scholars writing in this true

comparative spirit regarding human rights and Islam in general. Literature
on non-Muslims under Muslim rule can be compared with literature on the
human rights of women under Islam, because both bodies of literature can
be classified into Alis three types: apologetic, rejectionist or, true comparative spirit.41 The literature focusing on the human rights of women under
Muslim rule is increasing in depth, volume, and complexity, and has led to
activism, scholarly debate, and efforts to remedy the patterns of abuse
women suffer. In contrast, however, there is no comparable debate on

39.
40.
41.

Abdullahi A. An-Naim, Religious Minorities Under Islamic Law and the Limits of
Cultural Relativism, 9 HUM. RTS. Q. 1, 14 (1987).
SHAHEEN SARDAR ALI, GENDER AND HUMAN RIGHTS IN ISLAM AND INTERNATIONAL LAW, EQUAL BEFORE
ALLAH, UNEQUAL BEFORE MAN? 40 (2000).
Id.

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religious minorities under Muslim rule.42 Such scholarly debate would be

particularly timely because of the increasingly rigid challenge crystallizing
against religious minorities, as will be examined below, as well as the
invisibility of the pattern of abuse against them.

E. Human Rights of Non-Muslims Under Muslim Rule:

Standards and Distinctions
Having highlighted a thread of common abuses of the rights of non-Muslims
in the Middle East, clarified the reasons for reference to Muslim politics, and
discussed the dearth of serious debate on this issue, we turn to the question
of what, if any, are the underlying factors for distinctions between Muslims
and non-Muslims? Consideration of legal analysis and text in Islamic law
reveals that the theoretical distinctions pertaining to the human rights
situation of non-Muslims43 rest on two key questions: whether the nonMuslims are People of the Book (Ahl-al Kitb)44 or not, and the even more
fundamental distinction of whether the non-Muslim is considered an
apostateone who has converted from being a Muslim into another
religion.45 Though the human rights of People of the Book also suffer
infringement in the Middle East, reference to them in the Quran means
their status can at least be theoretically established as protected people.46
The status of others is much more problematic. One writer holds that
according to Sharia, pantheists, pagans, and nonbelievers have no rights.
In short, they have the options of conversion or death.47 The legal

42.

43.
44.
45.

46.
47.

Human rights studies on the Middle East often raise the human rights of women as well
as religious minorities in their analysis. However, there are numerous studies focusing
solely on the human rights of women, but none focusing solely on the human rights of
religious minorities.
For a more traditional categorization of non-Muslims, see ABDUR RAHMAN I. DOI, SHARIAH:
THE ISLAMIC LAW 42627 (1984).
Also known as dhimmis.
Space does not allow this article to engage in a thorough discussion of Islamic law and
the understandings about ranking systems between believer and nonbeliever that may be
deduced from Islamic Law. For more information, reference can be made to Arzt, supra
note 37, at 40016; An-Naim, supra note 39, at 1113; ANN ELIZABETH MAYER, ISLAM AND
HUMAN RIGHTS: TRADITION AND POLITICS 12629 (2d ed. 1995). For an analysis of apostasy and
freedom of religion or belief, see Nazila Ghanea, Apostacy and Freedom to Change
Religion or Belief, in FACILITATING FREEDOM OF RELIGION AND BELIEF: PERSPECTIVES, IMPULSES AND
RECOMMENDATIONS FROM THE OSLO COALITION (W. Cole Durham et al. eds., forthcoming).
However, this protected status has been criticized for being embedded within a
framework of inequality. Arzt, for example, refers to this as a second-class status and
outlines the restrictions that remained on them. Arzt, supra note 37, at 41415.
DANIEL E. PRICE, ISLAMIC POLITICAL CULTURE, DEMOCRACY, AND HUMAN RIGHTS, A COMPARATIVE STUDY
16162 (1999). He goes on to contribute a puzzling definition of non believers, stating

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Human Rights of Religious Minorities

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consequences of apostasy often extend to civil death, being unable to

inherit from either a Muslim or a non-Muslim individual, dissolution of
marriage,48 the continued application of Muslim laws to the apostate, and
the possible threat of the death penalty.49
It is not only theoretical distinctions in original texts that are at issue.
Non-Muslims are also conspicuous in their absence from recent Islamic
texts on human rights generated from modern day Muslim states. In fact, it
can be noted that the spirit of the Quranic verse on no compulsion in
religion50 finds little or no reflection in such texts. The three documents that
will be examined here are the Universal Islamic Declaration of Human
Rights from 1981, the Cairo Declaration on Human Rights in Islam from
1990, and the Arab Charter on Human Rights from 1994.51
The Universal Islamic Declaration of Human Rights omits reference to
discrimination on the basis of religion or belief in its preambular paragraph
6(g)(i), which refers to establishing an Islamic order in which all human
beings are equal and should suffer no disadvantage or discrimination by
reason of race, colour, sex, origin or language. Furthermore, it contains no
enforcement procedures for any of its provisions. The Declaration refers to
equality before the law and to equal protection before the law in Article III(a),
and Article XII(e) forbids inciting public hostility on the ground of religious
belief, stating that respect for the religious feelings of others is obligatory on
all Muslims. Its reference to the Right to Freedom, Article II(b), states, Every
individual and every people has the inalienable right to freedom in all its
formsphysical, cultural, economic and politicaland shall be entitled to
struggle by all available means against any infringement or abrogation of this
right. Article X refers to the Rights of Minorities, and asserts that:

48.
49.

50.
51.

that This concern regarding the treatment of nonbelievers is supported by the

persecution of the Bahai in Iran and guest workers in Saudi Arabia. It is not clear why
monotheist Bahs and particularly guest workersmany of whom are Christianare
categorized as non-believers. See id. at 162.
For a discussion about apostasy, the marriage contract, and maintenance for the wife, see
JAMAL J. NASIR, THE STATUS OF WOMEN UNDER ISLAMIC LAW AND UNDER MODERN ISLAMIC LEGISLATION 69
(2d ed. 1994).
For the examination of a number of Egyptian State Council rulings on apostasy, see
Ahmed Seif Al-Islam Hamad, Legal Plurality and Legitimation of Human Rights Abuses,
A Case Study of State Council Rulings Concerning the Rights of Apostates, in LEGAL
PLURALISM IN THE ARAB WORLD 219, 22128 (Baudouin Dupret et al. eds., 1999).
See Quran 2:256.
UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS, 19 Sept. 1981, available at www.alhewar.com/
ISLAMDECL.html; CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM, ORGANIZATION OF THE ISLAMIC
CONFERENCE, 5 Aug. 1990, available at www.humanrights.harvard.edu/documents/
regionaldocs/cairo_dec.htm; ARAB CHARTER ON HUMAN RIGHTS, COUNCIL OF THE LEAGUE OF ARAB
STATES, CAIRO, adopted on 15 Sept. 1994, available at www.humanrights.harvard.edu/
documents/regionaldocs/arab_charter.htm.

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(a) The Quranic principle [t]here is no compulsion in religion shall govern

the religious rights of non-Muslim minorities.
(b) In a Muslim country religious minorities shall have the choice to be
governed in respect of their civil and personal matters by Islamic Law, or by
their own laws.

Both of these provisions, however, would seem to be contingent on prior

recognition by the state of a community as constituting a recognized nonMuslim minority. Article XIII on the Right to Freedom of Religion is very
vague, and states that [e]very person has the right to freedom of conscience
and worship in accordance with his religious beliefs. Some potential
problems are highlighted in Article XXIII, which is insufficient with regard to
the Right to Freedom of Movement and Residence of non-Muslims. Article
XXIII(a) states, every Muslim shall have the right to freely move in and out
of any Muslim country. Section (b) continues, No one shall be forced to
leave the country of his residence, or be arbitrarily deported therefrom,
without recourse to due process of Law. This absence of any direct
reference to non-Muslims may well be considered ominous, though the
provisions of Article X(a) may go some way towards filling this void. The
writings of Ann Elizabeth Mayer highlight the significance of the fact that the
Arabic text of this Declaration is considered the original.52 The significant
divergences between the English and the Arabic versions of this Declaration
are considered intentional by Mayer,53 but merely as suggesting likelihood
that the drafters of the Declaration held divergent views, by Rehman.54
There is no mention of the rights of non-Muslims in the Cairo
Declaration on Human Rights in Islam, adopted by the Organisation of
Islamic Conference. This Declaration was adopted in 1990 and presented to
the Preparatory Committee of the UN World Conference on Human Rights
in 1993 as a contribution to the Vienna World Conference.55 Article 1 is
general in its claim that [a]ll men are equal in terms of basic human dignity
and basic obligations and responsibilities, without any discrimination on
grounds of race, colour, language, sex, religious belief. However, this
52.
53.

54.
55.

As noted in the Explanatory notes of the Declaration in the English version. See MAYER,
supra note 45, at 7374.
She also notes that the provisions of the Universal Islamic Declaration of Human Rights
are deliberately obscure and that many of the rights contained in it are qualified. MAYER,
supra note 45, at 102. For a thorough discussion, see id. at 108. For a note on the
differences in the implications of the Arabic original and English translations, see id. at
132, 14951.
Javaid Rehman, Accommodating Religious Identities in an Islamic State: International
Law, Freedom of Religion and the Rights of Religious Minorities, 7 INTL J. MINORITY &
GROUP RTS. 139, 154 (2000).
Contribution of the Organisation of the Islamic Conference, World Conference on
Human Rights, Preparatory Committee, 4th Sess., U.N. Doc. A/CONF.157/PC/62/
Add.18 (1993).

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Human Rights of Religious Minorities

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equality is arguably conditional because it is followed by the words, True

faith is the guarantee for enhancing such dignity along the path to human
perfection. Article 18(a) may implicitly cover religious minorities: Everyone shall have the right to live in security for himself, his religion.
However, other statements may well cause concern among non-Muslims,
such as Article 2s claim that life can only be taken away for a Shariah
prescribed reason56 and Article 10s claim that Islam is the religion of
unspoiled nature. It is prohibited to exercise any form of compulsion on
man or to exploit his poverty or ignorance in order to convert him to
another religion or to atheism.
The Arab Charter on Human Rights was adopted in September 1994 but
has not yet entered into force.57 Article 2 provides that State Parties should
ensure the enjoyment of all the rights within the Charter without any
distinction on a number of grounds, including religion, to all individuals
within their territory. Article 9 reiterates the equality of all persons before the
law and their right to a legal remedy. Article 26 states that [e]veryone has
a guaranteed right to freedom of belief, thought and opinion. Article 27 is
the most expansive in relation to the human rights of religious minorities. It
states that [a]dherents of every religion have the right to practice their
religious observances and to manifest their views through expression,
practice or teaching, without prejudice to the rights of others. No restrictions shall be imposed on the exercise of freedom of belief, thought and
opinion except as provided by law. This final clause, except as provided
by law, renders the whole provision vulnerable to this loophole without
any limitation or restriction. Furthermore, Rishmawi has noted that the
absence of any mention in the Charter of the right to change ones religion
is one of the most glaring omissions.58 She further comments that the
Charter minimises the scope of many of the rights it recognises.59 This
analysis is certainly highly relevant to the reduction of Article 27s mandate
of religious freedom to a flexible standard left to the whim of national
legislators.
The above discussion demonstrates how recent decades have generated
what Arjomand has termed an official Islamic alternative60 that clearly

56.
57.
58.
59.
60.

See UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS, supra note 51. The concern here being
the possibility that this includes apostasy.
ARAB CHARTER ON HUMAN RIGHTS, supra note 51, art. 42(b) (according to this article, the
Charter will enter into force two months after the seventh ratification has been registered
with the League of Arab States).
Mona Rishmawi, The Arab Charter on Human Rights: A Comment, 10 INTERIGHTS BULL. 8,
810 (1996).
Id.
This term is used by Arjomand to describe how a transnational Islamic resurgence
rejected the universality of human rights and embodied such rejection in particular texts

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charts a deterioration of international human rights standards regarding

freedom of religion or belief. It is of particular concern that this weakening
is increasingly and consistently established in legal and political Islamic
documents that either do not mention or do not adequately cater to the
human rights of non-Muslims.61 This has led to the largely invisible
condition of systemic discrimination against non-Muslims. Such systemic
discrimination and inequality of condition has been described as the most
damaging form of discrimination62an apt description of the condition of
non-Muslims in the Middle East.

III. THE VIABILITY OF SECULARISMS SOLUTION

A. Secularism as the Framework of Guarantee for the
Human Rights of Non-Muslims in the Middle East
It is observances such as those above that have led many to the conclusion
that only the implementation of a secular framework, through removing
religion from the Middle Eastern public sphere as a whole, can hopefully
drain religion of its potential to serve as the basis of human rights abuse. In
the Middle East context, is secularism the solution to the dilemma of the
human rights of religious minorities in the region? Would the human rights
record of Middle Eastern governments improve if they were based on
secularism, or does this neglect some of the complexity of the relationship
between Islam and human rights?
This author concurs with the argument that human rights as a value
can be incorporated within a religious framework (including an Islamic
framework),63 and that [i]t is more fruitful in thinking about human rights
to draw the dividing line elsewhere: not between a secular and non-secular
world-view.64 This article does not rest on the assumption that human rights

61.

62.
63.
64.

such as the Cairo Declaration on Human Rights in Islam. See Said Amir Arjomand,
Religious Human Rights and the Principle of Legal Pluralism in the Middle East, in
RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECTIVES 331, 34546 (Johan D. van
der Vyver & John Witte, Jr. eds., 1996).
For a discussion of how more recent Islamic texts, such as the CAIRO DECLARATION ON HUMAN
RIGHTS IN ISLAM, supra note 51, and the UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS, supra
note 51, are inadequate in protecting the rights of non-Muslims, see MAYER, supra note
45, at 8485, 131.
Rebecca J. Cook, Womens International Human Rights Law: The Way Forward, in
HUMAN RIGHTS OF WOMEN, NATIONAL AND INTERNATIONAL PERSPECTIVES 3, 9 (Rebecca J. Cook ed.,
1994).
KATERINA DALACOURA, ISLAM, LIBERALISM AND HUMAN RIGHTS 203 (1998).
Id. at 39.

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Human Rights of Religious Minorities

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standards necessarily need to be secularized in order for them to be

rendered effective.65 This may, however, gloss over the complexity of the
issue of what is meant by secularization in this context. If the claim is for
the independence of the judiciary and respect for human rights regardless of
religious affiliation, then clearly this author would support such manifestations of secularization. However, the outright rejection of the possibility of
garnering support for human rights from within a religious framework is not
supported.
It has been asserted that:
[T]he issue of secularism lies at the heart both of the justification of human
rights and democracy, and of the difficulties that Islamic societies face in
formulating and implementing policies in this regard. . . . The central issue is
not . . . one of finding some more liberal, or compatible, interpretation of
Islamic thinking, but of removing the discussion of rights from the claims of
religion itself.66

Price disputes this position with one compelling argument, that [s]ecular
authoritarian regimes in Muslim countries have also not been generous in
granting civil liberties to citizens. It is likely that the spread of democracy,
not the secularization of politics, will sharply reduce these practices.67 The
examples of widespread human rights abuses in Syria and Algeria go some
way to supporting this point.68

B. Secularisms Quick Fix Solution

This article does not, therefore, promote secularism as a quick fix solution
to human rights challenges in the region, primarily due to the pragmatic
reasons that will now be addressed. This article instead emphasizes the

65.

66.
67.
68.

OLIVIER ROY, THE FAILURE OF POLITICAL ISLAM 199 (1999). Roy adds an interesting twist to those
who starkly contrast Islam with secularism in arguing that Islamism is actually an
agent in the secularization of Muslim societies because it brings the religious space into
the political arena: although it claims to do so to the benefit of the former, its refusal to
take the true functioning of politics and society into consideration causes it instead to
follow the unwritten rules of the traditional exercise of power and social segmentation.
The autonomous functioning of the political and social arenas wins out, but only after the
religious sphere has been emptied of its value as a place of transcendence, refuge, and
protest, since it is now identified with the new power. Id.
FRED HALLIDAY, ISLAM AND THE MYTH OF CONFRONTATION, RELIGION AND POLITICS IN THE MIDDLE EAST
157 (1995).
PRICE, supra note 47, at 174.
For details see, for example, the Human Rights Watch Annual Reports, the latest one
being HUMAN RIGHTS WATCH, HUMAN RIGHTS WATCH WORLD REPORT 2003 40596, available at
www.hrw.org/wr2k3/mideast.html (includes links to country sections providing more
details).

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possibilities of a struggle for human rights fomulated within a Muslim

framework.
The imposition of some kind of absolute secularism as the prerequisite
to any progress would axe the dialogue between Islam and human rights
to an early death. If one looks at the situation of women in Saudi Arabia, for
example, it is clear that the Islamic framework is the only option at the
moment, and that the belief that more equitable recognition of their rights
can be founded on Islamic credentials is fueling a new generation of women
in the Kingdom.69 In the case of the human rights of women, Ali argues that
the emancipatory writings of scholars can amount to a political lever and
as a point of reference, when attempting to articulate specific demands by
women in Muslim societies.70 Ali calls on strategic and theoretical
arguments for an emancipatory struggle from within a Muslim framework.
She argues that a struggle based entirely within a secular framework would
not only be extremely unlikely to succeed, but could alienate and exclude
women, and even unleash extremist reaction.71 Could this methodology
also hold promise for the human rights of religious minorities?

IV. COMPARISON BETWEEN THE HUMAN RIGHTS OF THE

MIDDLE EASTS WOMEN AND ITS RELIGIOUS MINORITIES
A. What Next? Responses for Rights in the Middle East
Parallels can be drawn between the attempt to promote the rights of
religious minorities and other campaigns for human rights in the Middle
East. All such campaigns struggle against common challenges. These
challenges include the abuse of the frameworks of religion and culture and
of states courting popular sentiment by taking a conservative stance against
demands for human rights. The concerted campaigns for the rights of
women in the Middle East in recent years offer a very useful model for
analysis in light of efforts to promote the rights of religious minorities in the
Middle East.

69.
70.
71.

See Mai Yamani, Muslim Women and Human Rights in Saudi Arabia, Aspirations of a
New Generation, in THE RULE OF LAW IN THE MIDDLE EAST AND THE ISLAMIC WORLD, HUMAN RIGHTS
AND THE JUDICIAL PROCESS (Eugene Cotran & Mai Yamani eds., 2000).
ALI, supra note 40, at 284.
Id. at 28384.

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B. Levels of Engagement
While women participate, albeit to a limited extent, in the contest over
[Islamic] authority,72 religious minorities have largely been either nearly
excluded or only allowed to participate in closely scrutinized and managed
processes of limited cooption.73 Unless the politics of silence itself is
considered as a form of engagement, then the space permitted religious
minorities in Muslim countries for participation in the political life of the
communityeven its cultural lifehas been severely limited in most
Middle Eastern countries.
Each country may be able to point to the token member of a religious
minority community in a position of prominencethe Christian Foreign
Minister, the Ahmadiyya UN representative, the Coptic diplomat, decades
ago. However, tokenism is not a signifier of the equal engagement and
acceptance of communities into the mainstream. In fact, tokenism is precise
proof of the minority communitys absence form the mainstream. This is not
to suggest that there is absolute exclusion of religious minorities, as no
community can live decades, centuries, or millennia amongst a majority
community without at least some tacit understandings and bargaining being
established between them.74 However, bargaining in such a context is not
based on full respect for human rights and equal dignity with the rest of the
community. Basically, religious minorities often lack agency. That is,
religious minorities in the Middle East are largely denied the opportunity of
intervening, or choosing freely not to intervene, in events. They are unable
to make noticeable and sustained contributions to the outcome of events
and structures that influence them, whether in the legal, political, or cultural
sphere.

72.
73.
74.

EICKELMAN & PISCATORI, supra note 28, at 76.

See ELIZ SANASARIAN, RELIGIOUS MINORITIES IN IRAN 71 (2000).
An interesting example of the creative interactions that are established between nonMuslim religious minorities living in the Muslim world comes from the detailed study of
the applications of a Jewish family to Muslim courts in Yemen spanning four decades in
the early 1900s, despite the existence of Jewish courts. As Hollander argues,
Litigants would apply to a Muslim court when opponents refused to appear in the Jewish court or
when unsuccessful there. Indeed, individuals by-passed Jewish courts altogether and initiated
proceedings in Muslim courts when the law applied there was advantageous to them.

Isaac Hollander, Halakha, Sharia and Custom: A Legal Saga from Highland Yemen,
19001940, in ISLAMIC LAW, THEORY AND PRACTICE 157, 157 (Robert Gleave & Eugenia
Kermeli eds., 1997).

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C. From Mobilizing Women to Emancipating Religious Minorities

What has been the record of those campaigning for the status of women in
these same countries, and who have campaigned for their rights through
such internal religious discourse? What are the lessons for religious
minorities from this experience? One vivid realization that has emerged
from an engagement of the issue of women under Islam and other feminist
analysis has been an emphasis on the positive duty of states. Such reasoning
calls for the accountability of states for the actual treatment that is meted out
to women in practice, not just the theoretical chimera of their legal equality.
In the case of the battery or murder of women in the context of religious
laws, for example, a states failure to act in these types of abuse cases
makes the state complicite . . . because the state has failed to provide an
effective remedy for the systematic violation of human rights.75 Howland
argues that the affirmative duty of states in such circumstances stretches to
outlawing practices that systematically violate liberty and equal rights,
providing legal remedies for such violations, and ensuring womens access
to and knowledge of these remedies.76 Similarly, the excuses that states have
put forward, such as that their laws offer full equality regardless of religious
affiliation, or that they repress religious minorities in order to protect them
from the majority, are not acceptable in light of international human rights
standards. The states responsibility stretches to the need to provide legal
remedies and to outlaw practices that violate minorities rights. When the
state does not fulfill these responsibilities it is complicitous in all continuing
violations.
Another strategy feminists have used is that of highlighting differences
in Muslim cultural practices for their own advantage.77 By establishing
international links and exposing the diversity of the treatment of women in
various Muslim countries, a telling disjuncture is created between mere
cultural practice and cultural elements that are presented as authentic
Muslim religious practices. The myth of one homogeneous Muslim world
explodes, and the differences appear.78 In the case of religious minorities,

75.

Courtney W. Howland, Women and Religious Fundamentalism, in WOMEN AND INTERNAHUMAN RIGHTS LAW 533, 615 (Kelly D. Askin & Dorean Mo Koenig eds., 1999).
Id. at 61516.
A particularly interesting response in this context has been the setting up of the network
Women Living Under Muslim Laws (WLUML). This network notes in its mission
statement that laws formally considered Muslim vary, sometimes radically, from one
cultural context to another. These laws, in combination with customary laws and
practices, are recognized as vitally important to women, particularly in family and
personal life. WLUML notes that [t]hese affect women disproportionately and usually in
a manner that undermines their rights and autonomy. See WOMEN LIVING UNDER MUSLIM
LAWS, ABOUT WLUML, available at www.wluml.org/english/about.shtml.
Helie-Lucas, supra note 34, at 273.
TIONAL

76.
77.

78.

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Human Rights of Religious Minorities

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the goal would not only be to demonstrate this diversity internally to the
discriminated group (in this case, religious minorities), but also to demonstrate the diversity to the community at large. Further consequences of such
networks for women have been the strengthening of resistance, the
establishment of solidarity, and the provision of empowerment from the
sense of unity.
Religious minorities, too, could strongly benefit from such solidarity.
The pattern of minorities internalizing the inferior status imposed on them
over time, and thus being coopted, is a well-established phenomenon. This
can act as a self-imposed limitation, impoverishing the rights of religious
minorities in the Middle East yet further. The need for solidarity networks
across borders and engagement in discourses that can liberate creative but
peaceful patterns of resistance are therefore highly necessary. The risk,
however, is that like many women under Muslim rule religious minorities in
the Middle East no longer have the energy or audacity for peaceful
resistance. This may be described as the emergence of a state of false
consciousness and internalized oppression by victims. In his study, Cohen
discusses how denial can be a habitual coping strategy. He examines how
intolerable facts and images shift from being disturbing to becoming normal
and tolerable. While his excellent study of the denial and normalization
and routinization of the intolerable is focused on perpetrators of or
bystanders in atrocities, it raises issues that are all the more pertinent to
victims themselves.79 The easier option of adapting to the existing circumstances, however constrained, or of escaping the repression through
immigration, has proven tempting for many over the decades. Resistance
towards an unsubstantiated goal may prove too risky to such communities
in the final analysis. Adapting to the circumstances, unfortunately, can
prove vastly preferable to taking a stance.

D. Strategies and Frameworks Adopted

Womens rights campaigners who have adopted Muslim frameworks have
strongly rested on the creative potential of efforts at revising and reforming
Islamic law towards liberal interpretations. However, Anwar has reservations about this methodology of articulating human rights from within an
Islamic perspective. Her main criticisms are that such reformers fail to
articulate a theological basis for a secular state, that they are too committed
to the authority of the Quran and hadith, that they seriously hamper the

79.

See STAN COHEN, STATES OF DENIAL, KNOWING ABOUT ATROCITIES AND SUFFERING 54 (2001); Nazila
Ghanea, Repressing Minorities and Getting Away With It? A Consideration of Economic,
Social and Cultural Rights (unpublished manuscript, on file with author).

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capacity of Muslims to critique their own norms by idealizing early Islamic

history, and that they are selective in drawing from the past for traditions
and practices that support their goals. She argues that this puts reformists in
line with fundamentalists in a number of crucial ways and, in the long-term,
this model hinders the possibility of a true, stable and equitable model of
Islam.80 However, she also concedes that choosing to opt out of the religious
framework also carries its own costs, as this option may lack the capacity
to speak to the hearts of the lay masses, including the unlettered ruralists,
the urban working class, and Western-educated Muslims seeking to reconnect to their spiritual roots.81 Afshar supports the choice of the religious
framework while acknowledging the compromises it entails. Her stance is
that the analysis of Muslim women thinkers seeking a return to a purer
original Quran will facilitate discarding the traditions which have hardened into a profoundly anti-female ideology.82
There is a methodological contradiction here. Why refer to Islam as the
basis of rights if practice across the Muslim world shows contradictory
diversity?83 This leads us to the distinction highlighted by Helie-Lucas, that
feminists who feel the need to refer to the Quran to justify their stands
belong to two important currents: the believers, for whom Islam must
constitute its own theology of liberation, and the unbelievers who operate at
the level of strategic alliances.84 Clearly, religious minorities would choose
the option of discourse within the Muslim framework for the latter strategic
reason. Their current perilous status lends force to the utility of such an
approach. Any other secular and political activism would only serve to
reinforce the allegations of disloyalty that are already routinely targeted
toward minorities. Furthermore, religious minorities do not have the
numbers or the wider support to compete on these grounds. Creating the
space for their acceptability within the religious framework and traditions of
the majority therefore provides a far more amenable option, at least at the
present time.

80.
81.
82.
83.
84.

Ghazala Anwar, Reclaiming the Religious Center from a Muslim Perspective: Theological Alternatives to Religious Fundamentalism, in RELIGIOUS FUNDAMENTALISMS AND THE HUMAN
RIGHTS OF WOMEN 303, 30405 (Courtney W. Howland ed., 1999).
Id. at 305.
Haleh Afshar, Fundamentalism and Women in Iran, in THE RIGHTS OF SUBORDINATED PEOPLES,
supra note 34, at 276, 277.
Helie-Lucas, supra note 34, at 274.
Id. at 267.

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E. Where the Comparison Ends

Having delineated the variety of challenges and lessons to be extrapolated
from efforts to enhance the rights and status of women under Muslim rule,
we should remain cognizant of the limitation of such an analogy. The most
pertinent differential is that of population. Whereas women compose half or
more of the population of all the Middle Eastern countries under discussion,
the population of non-Muslim religious minorities stretches from about
10 percent in Egypt to about 1 percent in the Islamic Republic of Iran.
Womens larger numbers allow broader and stronger coalitions in favor of
the cause of the human rights of women. This makes their case more
compelling, but perhaps also more challenging and intrusive, than that of
religious minorities in the Middle East. A second self-evident differential is
that Muslim women are obviously believers, and this leads to very different
potentialities with regard to their textual and social accommodation within
the wider Muslim community.
However, analogizing the efforts towards the advancement of womens
human rights to the struggle for the rights of religious minorities continues to
highlight pertinent lessons. Both groups have historical and textual ambiguities weighted against them by conservative religious interpretations of
Islamic texts and traditions. This offers the possibility of emancipatory
interpretations in favor of both. In both cases exposing the diversity of
practice within different parts of the Muslim world and in different periods
of history offers a potent way of challenging ingrained assumptions. The
majority has distored social structures in order to oppress both women and
religious minorities. This structure is understood as patriarchy when
discussing the oppression of women. The hierarchical social structures
ingrained against religious minorities can be seen as analogous to patriarchy. More simply, the two groups are faced with very similar disadvantages
and discrimination in terms of their value as a legal witness, their
inheritance rights, and their ability, or rather their inability, to climb the
social ladder towards various public and leadership roles rather than
accepting merely to exist in the private realm. Hassans call to the challenge
of resisting abuse of the human rights of women is equally applicable to that
of religious minorities. Muslim culture has reduced many, if not most,
women to the position of puppets on a string, to slave-like creatures. . . .
Despite everything that has gone wrong with the lives of countless Muslim
women through the ages due to patriarchal Muslim culture, I believe
strongly that there is hope for the future.85

85.

Riffat Hassan, Rights of Women Within Islamic Communities, in RELIGIOUS HUMAN RIGHTS IN
GLOBAL PERSPECTIVE, supra note 37, at 361, 386.

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F. Towards a Synthesis of the Two Campaigns

Treading the human rights path within the framework of Islam does not
provide a smooth and unproblematic option. In fact, it has been described as
tortuous.86 However, the strides made by academics and activists in
challenging the rights of women, indicates a promising path for religious
minorities under Muslim rule. Both share the challenge of withdrawing the
monopoly of interpretation from the political or religious leadership and
providing the space for the exploration of alternative interpretations beyond
traditional and authoritarian perspectives. Both religious minorities and
women under Muslim rule share many similar human rights infringements
the denial of leadership, inequality in legal standing, and levels of exclusion
from public life. Both face the challenge of capturing the limelight towards
rational, egalitarian and justice-oriented ideals,87 resting on the premise
that there is no great division between an authentic Islamic view and respect
for their human rights. It is therefore particularly regrettable when those
active in countering repressive measures against women in Muslim states are
indifferent, even hostile, to extending this insight to the situation of religious
minorities. One example comes from an academic who stridently defends
the justifiability of the persecution of a religious minority community while
rejecting the subjugation of women in the name of Islam.88 While in the
long-term other less constrained options may emerge for religious minorities
in the Middle East, this article suggests engagement with the discourse of
reform within the framework of Muslim legal resources to provide the most
promising first step along the path of their emancipation and towards
enjoyment of their full and equal human rights.

V. CONCLUSION
This article calls for a more attentive study of the human rights situation of
religious minorities in the Middle East. It also calls for an emancipatory
interpretation of Islamic traditions and laws with regard to religious

86.
87.
88.

Arzt refers to the modern relationship between Islamic law and international law as
tortuous. Arzt, supra note 37, at 423.
JAMILA HUSSAIN, ISLAMIC LAW AND SOCIETY, AN INTRODUCTION 58 (1999).
This comes from Azar Nafisis chapter, in which she champions the rights of women in
Iran through using the example of a religious figure from Bab-Bah history, but
simultaneously argues that the persecution and destruction of Babs and Bahs was and
is justified! See Azar Nafisi, Tales of Subversion: Women Challenging Fundamentalism
in the Islamic Republic of Iran, in RELIGIOUS FUNDAMENTALISMS AND THE HUMAN RIGHTS OF
WOMEN, supra note 80, at 257, 259.

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minorities, analogous to the emerging literature and activism in the field of

human rights of women under Islam. While there have been some
references to the situation of religious minorities under Muslim rule, this
coverage has been insufficient in light of the complexities and range of
factors facing them. Many of the academic considerations of religious
minorities in the Middle East have rested on apologetic, polarized, or largely
empirical perspectives. A more comprehensive, thorough methodology, and
more attention from both scholars and activists is long overdue in this field.
This article has analyzed the dual possibilities and the double-edged
sword of mobilizing Muslim resources towards both the repression and
accommodation of religious minorities in the Middle East. While the former
has unfortunately become a well-established phenomenon, the latter is
being proposed as a route comparable to existing struggles towards
womens human rights in the Middle East. The role of Muslim politics
towards social mobilization is offered as a useful platform and antidote to
repressive interpretations of Islam, but can such an opposition be mobilized
in defense of non-Muslim communities living under Muslim rule?
Many Middle East experts may be reticent to suggest a liberation
movement for the benefit of religious minorities living within Muslim
countries through engaging in the competition over Islamic symbols and
their interpretation. This is due to the irony that for so long religious
minorities have suffered under the guise of those self-same Islamic
symbols and language. Religious minorities may have long concluded that
Islam does not possess the willingness or capacity to uphold their rights. In
doing so, minorities have perpetuated the reification of essential differences and fed into the hands of those who are politically manipulating
religious difference to reinforce their own popularity. Such a conclusion
contributes to entrenching the gap between Muslim and non-Muslim. The
religious minorities have become locked in a situation of being outsiders to
the religious symbolism and interpretation under which they are presently
being repressed, but which also holds the most potent key to guaranteeing
their rights and status.
The extent to which religious minorities can be taken into consideration
or become participants within the project of encouraging the reexamination
of Muslim resources about tolerance between communities remains a
challenging question. Can religious minorities adopt Muslim frames of
reference strategically in order to play a more mainstream role, or are they
to remain pawns and bystanders to the processes of nation building,
democratization, and fostering a culture of human rights within their
countries? The aim is not to push religious minorities to dominate Islamic
discursive frameworks, but rather to examine whether they can be participants in this process alongside their compatriots. If successful, the benefactors of such a process would be both Muslims and non-Muslims alike.