Tuesday, January 12, 2010

January 2010: Minaret Ban and Human Rights

Annotation of

“My Compatriots' Vote to Ban Minarets is Fuelled by Fear” by Tariq Ramadan. The Guardian. November 29, 2009.

~ The Editors

The recent vote in Switzerland (November 2009) to ban construction of minarets—the prayer towers for mosques—has raised many questions and concerns about its discriminatory nature, its violation of the right to freedom of religion, and its worrisome anti-Muslim sentiment. Tariq Ramadan describes how, “For the first time since 1893 an initiative that singles out one community, with a clear discriminatory essence, has been approved in Switzerland. One can hope that the ban will be rejected at the European level, but that makes the result no less alarming.”

The referendum marks a clear victory of the Rightist Swiss People’s Party, which proposed inserting a sentence into the Swiss constitution banning the construction of these towers. The ban is likely to face legal challenges not only in Switzerland but also from the European Court of Human Rights. Internationally, the UN High Commissioner for Human Rights has already condemned the vote as discriminatory and a violation of the right of religion. This month’s contributors discuss the political, human rights and legal aspects of this referendum.

Ramadan argues that, apart from the legal and human rights aspects of this vote, banning minaret construction represents a larger problem in twenty-first century Europe: an identity crisis. As he puts it, “It is important…to understand what is really happening in Europe in general and in Switzerland in particular: while European countries and citizens are going through a real and deep identity crisis, the new visibility of Muslims is problematic – and it is scary.” These fears fueled the strong rhetoric against Muslims during the campaign, which he describes in the following terms: “Its media strategy was simple but effective. Provoke controversy wherever it can be inflamed. Spread a sense of victimhood among the Swiss people: we are under siege, the Muslims are silently colonising us and we are losing our very roots and culture. This strategy worked. The Swiss majority are sending a clear message to their Muslim fellow citizens: we do not trust you and the best Muslim for us is the Muslim we cannot see.”

Who is to be blamed? Ramadan points first to the “invisibility” of the Muslim communities living in Western societies and to the seeming incapacity of those communities to be more proactive in terms of protecting their rights as citizens; second, he notes the lack of courage on the part of Swiss political parties that are unwilling to stop populist initiatives. Ramadan claims, “We cannot blame the populists alone – it is a wider failure, a lack of courage, a terrible and narrow-minded lack of trust in their new Muslim citizens.”

Our panelists take this analysis further by examining the efficacy of the democratic system to respond to these challenges, the link between banning the construction of minarets and human rights, the critical role of political leadership in promoting of tolerance and diversity, and how to generate better instruments to protect minorities and vulnerable groups.

These issues and others are considered in this month’s Roundtable.


Democracy and Flame-Fanning Populists: An Undesirable Yet Inevitable Combination

by Richard Burchill, University of Hull

“My personal view is that the referendum is regrettable, but it is also the popular choice of the Swiss people today. Like all populist movements today that are based on outright discrimination and hate, this decision will fade away once the Swiss people realize how silly it all is. But we must remember it is not the system of democracy that is to be blamed but those that are using it.”

Tariq Ramadan views the recent referendum in Switzerland inserting a ban against the building of minarets into the Swiss Constitution, as a vote against Muslims not only in Switzerland, but across Europe. Those of a more tolerant sensibility will of course agree with Ramadan on this issue and will easily criticize the Swiss for “getting it wrong” by voting in favor of this constitutional amendment. There is no question that a constitutional vote on what is essentially an issue of local planning permission is, as Ramadan describes it, a silly initiative. However, this is also the nature of democracy as a system where society, including the flame-fanning populists, has the opportunity to express their views and desires, even if they are undesirable. We must also keep in mind that just because a democratic system has been used to arrive at a decision, not every decision taken through the democratic process will be acceptable.

The Swiss version of democracy is seen as unique due to the high degree of self-determination that is possible through direct democracy initiatives. In a system such as this it is inevitable that undesirable decisions will be arrived at. But let’s keep in mind that the Swiss are not alone in coming to, in the view of outsiders and those in the minority, the wrong decision. In 1999, 27 percent of the Austrian population got it wrong by voting for the Freedom Party. In 2002 the French did not know what they were doing when Jean-Marie Le Pen came in second in the first round of presidential voting. And in 2004 the US came to the wrong decision in re-electing George W. Bush as president. How do we know these are the “wrong” decisions? Because they involve large sections of a population exercising their free choice in a question before them, but to the rational and reasonable outsiders and minorities, who somehow know better, the wrong choice has been made.

What the Swiss situation shows is that our belief in democracy as the most legitimate way, or least as the most preferred manner, for coming to decisions means that unpopular decisions may result. Democracy is a process in which widespread and active participation is necessary and the Swiss system provides for this level of efficacy. What seems to be forgotten is that the democratic process does not necessarily ensure desired outcomes, which is why widespread and active participation has often been viewed as a major shortcoming of democracy. Commonly democracy is understood as government or rule by the people or the demos. But demos has also been interpreted as the masses or the mob; essentially those who cannot be relied upon to make appropriate decisions for the common good as understood by those who apparently know better. This is democracy’s dilemma—we all want to have our say but we also want to make sure those whose ideas are undesirable do not have a say.

Ramadan calls the process leading to the vote as "shocking” and he is right. It is shocking that a constitutional system can be used for a "silly initiative" like this. The result is the expression of negative views against Muslims but political debate and discussion often leads to views being expressed that some or many view as undesirable. However, the Swiss vote is not a major inroad into religious freedom as it involves a building issue rather than an explicit denial of human rights. The various legal challenges to the result will clarify this issue further. The referendum did not result in a ban on the building of mosques or other religious buildings. It is important to recognize the practical limits to this initiative because the democratic process is not absolute or unbridled in the sense that whatever it comes up with must be accepted. There could be no constitutional initiative banning all Muslims and expressions of the Muslim faith from Switzerland because democracy is not just about voting, it is also about substantive values that apply to society as a whole and there are legal mechanisms in place to keep a check on this.

Tariq Ramadan feels we need to look beyond the vote itself and understand what is really happening. There is substantial evidence of hostile views being expressed towards Muslims, but this is not unique in Europe or anywhere else—democracy will always allow for the targeting of the "other" that is feared or undesired. The supporters of the Swiss initiative argued that if a minaret were to be built in Switzerland, the country would become Islamic. This is flame-fanning populism at its best (worst?) but once it is recognized how silly the entire matter is then it will be forgotten or overturned—remember the Swiss system allows for the ban to be thrown out through the same democratic process. Various legal challenges to the initiative are being lodged and are likely to succeed because it has resulted in acts contrary to the Swiss constitution, such as upholding the values expressed in the preamble regarding diversity and freedom. An essential element of democracy is having the freedom to live a life of one’s choice provided one respects the choices of others.

The Swiss Constitution recognizes this freedom through its inclusion of fundamental rights and clear statements of its compatibility with international human rights law, all of which will prevent any flame-fanning populists from trampling on the basic human rights of others. We must keep in mind that even though the flame-fanning populists are disagreeable to us who somehow know better, democracy means they can express their views and pursue desired objectives.

My personal view is that the referendum is regrettable, but it is also the popular choice of the Swiss people today. Like all populist movements today that are based on outright discrimination and hate, this decision will fade away once the Swiss people realize how silly it all is. But we must remember it is not the system of democracy that is to be blamed but those that are using it. Switzerland has always laid claim to a unique democratic system, they still have it but one that has been exposed as uniquely silly.

Dr. Richard Burchill is the Director of the McCoubrey Centre for International Law, School of Law, University of Hull. His research interests cover the promotion and protection of democracy in international law including human rights protection. He is the author of Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee, 2nd ed. (2009, with Alex Conte) and the editor of Democracy and International Law: Library of Essays in International Law (2006) and has published widely in international journals and edited collections.


On Visibly Dangerous Silliness

by Anthony Chase, Occidental College

"If I am right that what is really at stake here is freedom of expression, then this connects quite logically to Ramadan’s call for a response that involves greater visibility for Muslims. In human rights terms he is arguing that, rather than shrinking away from “provoking” attacks, freedom of thought, conscience, and religion is only protected if it is paired with freedom of opinion and expression—including the right to visibly express an identity via symbols such as a minaret."

“Silly” is what Ramadan calls the Swiss minaret referendum. He urges, in response to its passage, that Swiss Muslims be more rather than less visible. Each point is worth reflection. How and why does silliness transform itself into danger? And how and why is visibility the correct response to such danger—even if it leads in directions Ramadan may not suspect?

So…silly? Indeed it is. Banning Switzerland’s minarets is about as commonsensical as banning french fries in favor of “freedom fries” in the US Congress cafeteria. Each is an irrelevant response to an invented enemy. The Swiss case, in particular, reminds us of the human need for scapegoats—usually some disempowered group —that is behind so many human rights violations. Apparudai calls this a “fear of small numbers,” i.e., the anxiety felt by dominant groups when faced with assertions of difference in the public sphere. This often leads to explosions of violence targeting ethnic minorities, women, or others who move out of the private realm to stake out a public presence. Puncturing the myth of a pure, patriarchal national whole by merely existing—by publicly showing a face or speaking a language or erecting a symbol of religious belief—is dangerous business. Its signal that identities are multiple and political societies are inescapably pluralistic rebukes claims to monopolize power based on representing a singular identity. Hence the anxietyand hence the danger.

What is the precise danger in this “silly” referendum? It is most easily read as an attack on freedom of religion—combined in the Universal Declaration of Human Rights’ Article 18, intriguingly, as “freedom of thought, conscience and religion.” Article 18 may usefully be considered in terms of how it is followed by Article 19’s rights to freedom of opinion and expression. What is being attacked in Switzerland is not religion per se—a minaret is an expression of Islam, but is irrelevant to its practice. What is being attacked is the right to publicly express an identity, something that falls under Article 19’s orbit. Or, to be more explicit, Article 18’s freedom of thought, conscience, and religion leads to expressions that are protected by Article 19. The two are inextricably linked.

And here is where things get interesting. If I am right that what is really at stake here is freedom of expression, then this connects quite logically to Ramadan’s call for a response that involves greatervisibility for Muslims. In human rights terms he is arguing that, rather than shrinking away from “provoking” attacks, freedom of thought, conscience, and religion is only protected if it is paired with freedom of opinion and expression—including the right to visibly express an identity via symbols such as a minaret.

This has analogies in other controversies in the transnational Muslim world. Scholars such as Nasr abu Zeid, novelists such as Salman Rushdie, and Iranian dissidents such as Eshkevari, Soroush, and Kadivar have been attacked for being “provocative”—i.e., for expressing their freedom of thought in ways that roiled dominant notions of a singular, monolithic identity. What made them dangerous to authorities had little to do with their having been provocatively insulting, any more than a minaret is insulting. Attacks in each case were led by nationalist elites who used the guise of “provocation” as a basis to attack critical speech by dissenters against the political-cultural status quo. Protecting such putative provocation—be it in dry treatises, post-modern novels, or minarets—is essential. Their repression not only limits free expression, but also enables political societies to avoid coming face-to-face with their inherent pluralism. Those are important stakes and why, however silly the reaction, the proper response is more visibility.

Let me end by noting Ramadan’s oblique reference that “every European country has its specific symbols or topics through which European Muslims are targeted…[it is] homosexuality in the Netherlands.” Perhaps I am wrong, but Ramadan seems to equate the right of Muslims to object to homosexuality in Holland to their right to erect minarets in Switzerland. This odd conflation leads me to reiterate Ramadan’s point regarding visibility, but to extend it to sexual minorities. There have been controversies regarding sexuality in many parts of the transnational Muslim world, including areas where Muslims are minorities (as in Holland) and majorities (as in Iran’s death penalty for homosexuality or Egypt’s famous Queen Boat case). Some have argued that those with a “gay” identity should refrain from “provocatively” claiming public space.

Nothing could be more dangerous. For the same reason that Ramadan rightly urges Muslims to maintain their visibility, it is imperative that other vulnerable minorities inform the public sphere with their presence. If not, that public sphere is left monopolized by the sort of xenophobes who recently won a referendum in Switzerland, and who stand against the inescapable pluralism of human societies.

Anthony Tirado Chase is Associate Professor of Diplomacy & World Affairs at Occidental College. Chase is currently completing Human Rights Debates in the Transnational Muslim World: Politics, Economics, and Society. Drawing on Professor Chase's training in international law, Islamic law, and international relations theory, this book explores when, how, and why the international human rights regime has mattered to some of the transnational Muslim world's most important debates - including those over free expression, economic development, and the treatment of sexual minorities. Other forthcoming works include "Mutual Renewal: On the Relationship of Human Rights to the Muslim World" and "On Justifications for Human Rights in Difficult Circumstances: Why 'Pushing the Envelope' is Essential to Human Rights Continued Global Resonance," each scheduled to be published as chapters in edited volumes. Previous works include Human Rights in the Arab World: Independent Voices (University of Pennsylvania Press), a range of peer reviewed articles, and guest editorship of a Muslim World Journal of Human Rights special volume on The Transnational Muslim World, Human Rights, and the Rights of Women and Sexual Minorities.


Of Minarets, Headscarves, and Cartoons

by Kurt Mills, University of Glasgow

"Ramadan puts minarets, head scarves, and Danish cartoons all into one anti-Muslim basket. I would argue that, looking beyond the apparent symbolism, we need to recognize that each situation is different and, while the sentiments behind some of the apparent anti-Muslim actions appear identical, they demand different understandings and responses."

It is difficult not to agree with Tariq Ramadan. The fear of and discrimination against Muslims in Western societies since 9/11 is clear and worrying. The anti-Muslim populism he cites is real, although it may also be part of a broader anti-immigrant populism. The posters he describes are extremely disturbing, and reminiscent of World War II propaganda. They are an artifact of fear of the misunderstood “other.”

We—society—create and, indeed, seem to need enemies—an Other. The Other is usually portrayed either as a monster or a shadow, particularly in wartime propaganda. And usually in highly militaristic terms. The minarets as missiles surely represent the perceived militarism of Islam. If anybody doubts this dynamic, I would direct them to the excellent documentary, filmed during the 1980s Cold War, entitled Faces of the Enemy. It appears that the organizers of the anti-minaret campaign watched the documentary and decided to mimic the propaganda techniques portrayed, so cartoonish are their stereotypes—a shadowy other, infiltrating society and intent on subverting it from within. This caricature is seen as reasonable given that we are in a war, indeed the most insidious, shadowy war possible to imagine—the “war on terror.” And who knows what evils might be hidden in those minarets or under those burqas?

The decision to ban the building of minarets in Switzerland was discrimination of the highest order, and hopefully the European Court of Human Rights will overturn it. Indeed, the fear will have spread much deeper than I would have imagined if it does not.

Ramadan also cites a number of different symbolic debates which all seem part and parcel of anti-Muslim sentiment in Western societies—including debates over headscarves in France and elsewhere, and the Danish anti-Islam cartoons—but which, in fact, all require more nuanced understanding.

The issue of headscarves has become a controversial issue in the UK. However, one must also look at the broader context. In the UK, we have had students expelled from school for wearing other— Christian—religious symbols. This is the outcome of an extreme form of the so-called “nanny state”—the attempt by authorities to protect us from all harm and all difference—even as state officials, rather ironically, preach multiculturalism. If everybody acts the same, dresses the same, and, indeed, thinks the same, then there will be no disagreement—and, therefore, no threat to our harmonious, never-changing society. This kind of society is also easier to police and keep orderly. Indeed, while there may be some anti-Muslim/anti-immigrant sentiments at the root of such situations—and hearing government ministers claim the wearing of a headscarf is an issue of societal order is cringe inducing—I would argue that it has as much to do with making it easier to control children in schools. Any variations in clothing or hints of individuality call this control into question. This itself, raises human rights issues, but is in fact broader than a single anti-Muslim agenda.

Further, it is not only in Western societies that the headscarf is an issue. Turkey, in its attempt to become a secular, Western, modern society, restricts the wearing of headscarves in certain situations—including in parliament (although it recently lifted a ban on headscarves in universities). Headscarves and other religious expressions are perceived as the thin edge of Islamism. And fear of Islamism is found in other Muslim societies too, such as Egypt. They are worried that political Islam will become a base for revolution against the (Western-supported) corrupt regimes of the moderate Muslim world. Thus, while the bigotry and stupidity symbolized by the minaret decision, among others, must be recognized and condemned, the multifarious fear of Islamism in the Islamic world also needs to be recognized. This is not to condone such actions. Rather, it is to recognize that uncertainty over Islamism goes far beyond the West.

Or, take the issue of cartoons. The Danish cartoons were condemned as insulting to Muslims. However, it is not necessarily a human right not to have your feelings hurt. Invariably, on those rare occasions I am subjected to Fox News in the US, I am outraged and offended by the drivel that spouts from the mouths of the “fair and impartial” reporters and commentators. The same would apply to the offensive opinions which appear in too many of the daily newspapers in the UK. Yet, libel and slander laws notwithstanding, I would defend their right to say stupid things. Or, as with the periodic outbursts from the Catholic Church whenever a new film deemed blasphemous comes out, we argue that it is an issue of free speech and do not—or at least we should not—give in to those who would censor unpopular opinions (one need only remember Galileo to imagine the possible effects when any religious organization decides it should have a veto over thought and speech). I would prefer just to ignore what they say. And this is what should have happened with the cartoons. What we saw was certain sectors of Muslim society—not all, by any means—and their liberal supporters decry them as outrages and demand censorship. We should not forget that this is exactly the kind of action one would find in Saudi Arabia and Iran. Indeed the countries behind the attempts at the United Nations to create international norms against offensive speech are the same ones that would like to reign in anti-government speech domestically. Some of these countries are also the same ones where one can find blatantly anti-Semitic, anti-Christian, and outrageous anti-Western conspiracy theories. Yet voices calling for their censorship certainly are not prominent.

Recently a man was convicted in the UK of the “honor killing” of his 15 year old daughter. These are the kind of retrograde practices—albeit still very rare—that we should be worried about not the sincere and unthreatening religious and cultural expression of a minaret. If we ban minarets, it is rather hard to argue that other societies—whether in the Muslim world or, indeed, China—should allow the free expression of Christianity or other “Western” religions or systems of belief and thought.

Ramadan puts minarets, head scarves, and Danish cartoons all into one anti-Muslim basket. I would argue that, looking beyond the apparent symbolism, we need to recognize that each situation is different and, while the sentiments behind some of the apparent anti-Muslim actions appear identical, they demand different understandings and responses.

Kurt Mills is a Senior Lecturer in International Human Rights at the University of Glasgow. He previously taught at The American University in Cairo, Mt. Holyoke College, James Madison University, and Gettysburg College, and served as the Assistant Director of the Five College Program in Peace and World Security Studies at Hampshire College. Publications include Human Rights in the Emerging Global Order: A New Sovereignty?, and numerous articles on human rights and humanitarian issues in, among other journals, Civil Wars, Global Governance, Global Responsibility to Protect, Global Society, Journal of Human Rights, International Politics, Netherlands Quarterly of Human Rights, and Peace Review. He is currently working on a book examining international responses to mass atrocities in Africa. He is the founder of the Human Rights Section of the International Studies Association, and founder and co-editor of the H-Human-Rights listserv. His web page is: http://web.mac.com/vicfalls/


Minarets Vote Compromises Human Rights for Everyone

by Anna Talbot, Amnesty International

“This referendum ultimately points to a failure of leadership. It is up to national and social leaders to help the population to understand why a referendum to ban the manifestation of one religion is dangerous. The structure of human rights law we have at the moment, while by no means perfect, provides a strong framework with which to ensure respect and security for all."

Minarets, like church steeples, are a physical manifestation of religion. There is little doubt, then, that their recent banning in Switzerland following a referendum constitutes a breach of the right to freedom of religion, with respect to the right to manifest ones religion. This right is protected under a number of instruments, including the Universal Declaration of Human Rights (Article 18), the International Covenant on Civil and Political Rights (ICCPR) (Article 18), and the European Convention on Human Rights (Article 9). Under these instruments, the right to manifest ones religion can only be limited if such a limitation is necessary to protect public safety, order, health, morals, or the fundamental rights and freedoms of others (ICCPR Article 18.3, for example). Minarets do not threaten any of these.

The Human Rights Committee and the Special Rapporteur on freedom of religion and belief have further clarified the principle of freedom of religion and permitted restrictions. In its General Comment 22, the Human Rights Committee, which monitors the implementation of the ICCPR, made it clear that the permissible limitation to the freedom of religion must be interpreted strictly, and must be directly related and proportionate to the need identified. The Special Rapporteur on the freedom of religion and belief, in her report from her visit to Turkey in 1999, recommended that the right to establish and maintain a place of worship and to build such facilities should be in conformity with international jurisprudence. She referred to the Human Rights Committee General Comment specifically in this recommendation. Both the Special Rapporteur and the Human Rights Committee responded to the news of the outcome of the Swiss referendum by expressing concerns that this ban amounts to an undue restriction of the right to manifest one’s religion in breach of Switzerland’s international human rights obligations.

This breach of international law, however, points to a troubling trend. At the Human Rights Council, there is a clear split between progressive states and those who are more conservative. This split played out in the March 2009 session of the Council, with the passing of another resolution on the defamation of religion. The only religion explicitly mentioned in the resolution is Islam, in relation to (among other things) the targeting of Muslims that has occurred since September 2001. This resolution refers repeatedly to the use of the media to stereotype or incite intolerance against certain religions. It also emphasizes the fact that the right to freedom of expression carries with it special duties and responsibilities. At the time of its passing, this resolution was quite controversial. Germany made a statement to the Council on behalf of the European Union (EU) arguing that the concept of the defamation of religion was not valid in human rights discourse, and that the issues raised in the resolution would benefit from a more rights based approach. With the Swiss referendum, however, we see an EU member state expressing in very clear terms a popular intolerance of Islam. In such circumstances, it is easy to see why there is a lack of faith in the effectiveness of the current international framework.

This referendum ultimately points to a failure of leadership. It is up to national and social leaders to help the population to understand why a referendum to ban the manifestation of one religion is dangerous. The structure of human rights law we have at the moment, while by no means perfect, provides a strong framework with which to ensure respect and security for all. It is when this structure is undermined, and when particular groups feel threatened, that developments with the potential to undermine existing human rights (as has happened with the recent Human Rights Council resolution) can occur. It is not good enough to argue against developments such as the resolution on defamation of religion without backing this argument up with action. Such action would include positive leadership regarding acceptance of religious diversity, and the resultant manifestations. In Switzerland, we have seen the opposite—that religious groups can be marginalized by popular will, as reflected by this referendum.

*The views expressed in this article do not necessarily reflect the views of Amnesty International

Anna Talbot has worked in the legal department of Amnesty International since January 2008. Before that she graduated with honors in Law and History from the Australian National University and qualified as a barrister and solicitor of the Supreme Court of Victoria (Australia) in 2007. She has also completed the Advance Course on the International Protection of Human Rights through the Institute for Human Rights at Åbo Akademi University in 2009.