Right to Peace or Human Rights per Se in Islamic States

By Govern, Kevin Hugh | Ave Maria Law Review, Fall 2012 | Go to article overview

Right to Peace or Human Rights per Se in Islamic States


Govern, Kevin Hugh, Ave Maria Law Review


Islamic law (Shari'a) permeates every aspect of a devout Muslim's existence, and a Muslim nation's practices. (1) Islamic attitudes vary toward the legitimacy of international law and international agreements according clerical and secular, official and unofficial, state-actor and non-state actor laws, policies, and practices. In Islam, laws are generally to be obeyed and agreements kept--with few exceptions--the most notable being those aspects that are contrary to Islam. Shari'a law promotes respect for human rights and history is replete with instances where this Islamic doctrine has been demonstrated by the commitment of states with a Shari'a influence in favor of peace: the Pact of the League of Arab States (2); the Arab Charter of Human Rights (3); the Charter of the Organization of the Islamic Conference (4); and the Shari'a-compliant Cairo Declaration of Human Rights in Islam (CDHR) charter, (5) to name just a few conventions.

The challenge of promoting peace and human rights under Shari'a and international law will lie in three main realms. First, there is no single "Islamic attitude" towards the legitimacy of international law and international agreements among the fifty-six nations that have adopted Islam as their official state religion, adopted Shari'a as their legal system, or those that have Muslims as the majority or sizeable minority of their populations. (6) Second, as identified by the many nations who were signatories to the Cairo Declaration on Human Rights in Islam (CDHR), (7) the United Nation's Universal Declaration of Human Rights (UDHR) (8) is perceived by some in Islamic nations as failing to take into account the cultural and religious context of non-Western, Islamic nations. Finally, where there is apparent or perceived differences in approaches to advancing peace and human rights, there is a fundamental requirement to understand what practices and policies in Shari'a are of tribal or ethnic origin and culturally significant but not Islamic, what is Islam and incapable of change, and which practices or policies are theoretical or aspirational but not enforced or enforceable.

This Article will survey the symbiosis of faith and law, clerical and secular, official and unofficial, state-actor and non-state actor in Islamic nations from the perspective of advancing (or impeding) peace and human rights--both from a Western and non-Western perspective. This appreciation is vital to maintaining and advancing peace as well as waging war, and the preservation and promotion of the integrity and dignity of all human beings accounting for and regardless of their race, color, language, belief, sex, religion, political affiliation, social status, or other considerations.

I. Introduction And Heritage Of Islam: The Path Between War And Peace

The so-called "Global War on Terror(ism)," or GWOT, now restyled as "Overseas Contingency Operations," or OCOs, predominantly focused on the clash between Western democracy and al-Qa'eda terrorist network, without necessarily creating or fostering the conditions for peace, stability, or promotion of human rights.

Dozens of countries have passed new counterterrorism legislation or strengthened pre-existing laws that provide their law enforcement and judicial authorities with new tools to bring terrorists to justice, with the United States expanding coalition efforts with allies and foreign partners around the world. (9) Such coalitional efforts still operate with inherent challenges of understanding the religion of Islam and the cultural expressions and institutions that may be influenced by Islam, but not controlled or even prescribed by that faith. (10) It is important to note that not all individual acts of terrorism can be associated with fanatical political or religious ideologues, (11) nor should terrorism or even Islamic extremism be imputed to the vast majority of those in the world who peaceably practice the religion of Islam. …

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