Approaches to advancing the relationship between International Human Rights and Islamic Law
“In order to ultimately prevail, the human rights movement must be moored in the cultures of all peoples.” – Makau Matua, Human Rights: A Political and Cultural Critique.
Introduction:
The relationship between Islamic Law and International Human Rights legislation can be advanced from the adversarial perspective, which considers Islamic law and human rights to be fundamentally incompatible, and the harmonistic perspective, which views them as complementary – and reconcilable. This essay considers both approaches, using the right to freedom of expression (Article 19 ICCPR) and the prohibition of torture and cruel, inhuman, or degrading treatment (Article 7 ICCPR) as case studies, touching on the rights of the child.[2]The analysis draws on Fiqh, along with the practices of Muslim-majority states including Iraq, and the Organisation of Islamic Cooperation (OIC) in promoting human rights across the Muslim world. It offers a critical interpretation of emerging perspectives and contemporary scholarship on the compatibility of Islamic Law with human rights. Ultimately, it agrees with Mashood Baderin, that there is far more common ground than that which divides Human Rights and Islamic Law – concluding with a call for a harmonistic perspective, and use of the ‘margin of appreciation’ doctrine.[3]
Human Rights and Islamic Jurisprudence:
How should we approach ‘Human Rights’? For Andrew Clapham, they are a ‘special category’ of rights.[4]The writing of John Locke, Jean-Jaques Rousseau, Mary Wollstonecraft, Jeremy Bentham, and Karl Marx, to name but a few, have forged our western conception of rights and dignity.[5] International Islamic Law (“al-siyar”) owes much to the classical Islamic Jurist Muhammad al-Shaybani, who wrote a thousand years before western thinkers.[6] The 1948 Universal Declaration of Human Rights and 1966 International Covenant on Civil and Political Rights (ICCPR), entering into force in 1976, have contributed to our modern view of ‘International Human Rights’.[7]
Concepts inherent in Islamic law (“Sharī’ah”) such as maslaha (“public interest”) and maqasid al-shari‘a (“objectives of Islamic law”) provide mechanisms for legal adaptation – and flexibility. Contemporary Muslim scholars, therefore, advocate for the reinterpretation of classical rulings to ensure compliance with international human rights standards. The constitutions of Muslim-majority states, such as Iraq, explicitly recognise Islam as the state’s official religion and as a source of legislation (Article 2), alongside other substantial rights, such as legal equality (Article 14).[8]
For Abdullahi Ahmed An-Na’im, “an intelligent strategy to protect and promote human rights must address the underlying causes of violations of these rights”.[9] Na'im's life’s work, seeking to somehow reconcile both a ‘Universal’ and ‘Culturally Relative’ approach to the Human Rights of Islamic Law through a “Cross-cultural approach” is admirable and urgent as a changing construct. Surmising Na'im's philosophy, Baderin counters the argument that cross-cultural universality equates to cultural relativism.[10] But An-Na’im writes mostly in English, and Reza Afshari finds a paradox in the promotion of human rights through Islamic discourse; seeking to “maneuver human rights through the pathways of cultural habitat, itself under siege by highly politicized intellectuals and strewn with cultural field mines.”[11]
An Adversarial versus Harmonistic Perspective:
The adversarial perspective posits that human rights, as enshrined in international law, fundamentally conflict with Islamic Law – an interpretation, perversely, that can also be supported by those who would argue that human rights are a Western construct imposing secular or “liberal” values on religious Muslim societies. Advocates of this perspective tend to cite the conflict between ‘Universalism’ and ‘Religious Particularism.’ Frameworks such as the ICCPR operate on the assumption that rights are universal and apply equally to all individuals regardless of cultural or religious background. In contrast, classical Islamic law, as derived from the Qur’an, Hadith, and juristic interpretations, is embedded within a religious framework that applies different legal principles to Muslims and non-Muslims, men and women, and believers and apostates.[12] Equally, the concept of sovereignty in Islamic law (“hakimiyyah”) dictates that divine law is superior to human-made laws, leading others to reject international human rights norms as externally imposed.[13]
Donnelly’s interpretation, that the universalisation of Human Rights risks its weakening, and there are vast and significant differences between “Western and non-Western approaches to human dignity,” is misguided – but it sets out the debate well.[14] For Baderin, an adversarial approach is “hostile”; a harmonistic approach is “receptive”.[15] The argument follows, that the strength of Islamic Law lies in its ability to blend “the moral and ethical into the legal.”[16] The ‘Universalism versus Relativism’ debate has been improved by Baderin’s distinction between the Universality of Human Rights, widely accepted by states (and OIC!) – evidenced through the general lack of unwillingness to acknowledge that they are human rights violators (and, indeed, the willingness to condemn other states, particularly if they have a poor relationship).[17] The relationship between human rights and religion is evidently complex, but not one state in the world has not agreed to abide by at least one human rights treaty.[18] Comprehensive studies on the use of the Universal Periodic Review (UPR) procedures show how human rights are also anything but uncomplex and non-political.[19] A harmonistic perspective finding that Islamic law and human rights are not inherently contradictory, and reconcilable through interpretation and contextual application, rests on understanding the adaptability of Islamic law and potential for ijtihad to align with modern human rights norms.[20]
Freedom of Expression:
Article 19 of the ICCPR guarantees the right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds, subject only to necessary restrictions such as protection of public order and national security.[21] An adversarial approach to this right, would note that in classical Islamic jurisprudence, freedom of expression is not absolute, with Blasphemy laws in some Muslim-majority countries criminalising expressions deemed offensive to Islam (the fact that this right is not absolute in international human rights, either, is ignored). As has been noted, the prohibition of Blasphemy is distinct from apostasy.[22] Approaches to balancing freedom of expression remain contested, and increasingly so in the internet age.[23] In the wake of death threats against Salmon Rushdie (in 1989), Najib Mahfous responded that, freedom of expression “must be considered sacred… thought can only be corrected by counter-thought.”[24] Abdullah Saeed has stressed that there is “no explicit Qur’anic statement or set of statements that affirm or deny freedom of expression,” showing the need for interpretive judgement.[25]
Concerns with blasphemy laws show the legal and moral frameworks between international free speech protections and religiously justified restrictions. Pakistan’s and Saudi Arabia’s blasphemy laws, for example, criminalise speech that is deemed offensive to Islam, often leading to harsh penalties, including death sentences – and leading to Ann Elizabeth Mayer’s conviction that “Islamic human rights schemes rest on shaky foundations,” no doubt bolstered by her analysis of women’s rights and non-Muslim minorities.[26]Mayer has no such qualms in her approach to applying international Human Rights in Islamic societies, calling criticisms ‘misguided,’ but her critiques of An-Na’im’s view of Islamic Criminal Justice provides a strong (and necessary) counter-argument.[27] As Parekh has written on hate speech, “while restricting it at one level, we consolidate and deepen it at another.”[28] Is it any wonder, as Mayer asks, that there has been a ‘Muslim reaction’ to Western constitutionalism?[29] Under Islamic jurisprudence, permissible limits continue to exist for cases of Fitnah – such as the severity of punishment for a false accusation of Zina.
Considering the right to freedom of expression with a harmonistic lens is aided by a consideration of Kamali’s view that freedom of expression equates to freedom of religion in Islam.[30] Q33:57, notes that: “Surely those who speak evil of Allah and His Messenger, Allah has cursed them in this world and the hereafter, and He has prepared for them a disgraceful punishment”. Scholars have argued that freedom of expression is embedded in Islamic traditions, as the Qur’an itself encourages debate and reasoning (“There is no compulsion in religion”), and frequently cited Q6:108.[31]
Freedom of Expression (Article 19) is not absolute in the same manner as Freedom of Thought, Conscience and Religion (Article 18), and requires balance.[32] Freedom of Speech in Islamic Law is similarly limited to exclude false accusations, blasphemy and seditious speech, in cases where this is legislated by the state.[33]Saudi Arabia has faced criticism from human rights bodies for its strict interpretation of Islamic law including blasphemy laws, yet Tunisia recognises Islam as its religion but has secular legal institutions meaning that there is freedom of expression within constitutional limits, rather than Islamic law. Notably, Tunisia has also abolished the death penalty for apostasy. Gehan Gunatilleke‘s analysis of the Human Rights Committee’s general comments and jurisprudence shows that the trend is towards placing a greater burden of proof on states to justify limitations on religious freedoms and beliefs.[34]
Prohibition of Torture:
The Prohibition of Torture is not subject to the limitations that the responsibilities implicit in freedom of expression contain. It is an absolute and non-derogable right under International Human Rights Law. Article 7 of the ICCPR prohibits torture and cruel, inhuman, or degrading treatment or punishment, and the 1998 International Criminal Tribunal for the Former Yugoslavia (ICTY) case of Prosecutor v Furundžjia ruled that the prohibition of torture has acquired the status of a jus cogens norm.[35] Islamic law generally prohibits torture, emphasising human dignity (“karāmah al-insān”), but includes hudud punishments, such as amputation for theft or flogging for adultery, which continue to exist in some Islamic legal frameworks. Adversarial approaches find this particularly difficult to reconcile with the prohibition of torture.
However, for An-Na’im, the meaning of what is ‘Cruel, Inhuman or Degrading Treatment or Punishment ‘is crucial – and can only be found within its culture.[36] “Agreeing on a universal standard may not be as simple as we may think or wish it to be,” he suggests, but an acknowledgment of the “impossibility of the total abolition” of certain Qur’anic punishments would be a good place to begin from.[37]
Some Muslim-majority states, such as Iran and Saudi Arabia, do indeed implement corporal punishments based on their interpretations of Islamic law, raising questions about the compatibility of these practices with the absolute prohibition of torture under international human rights law. However for Alfitri, an adversarial approach is anathema to ever hoping to reconcile the criminal punishments of Islamic Law with International Human Rights law.[38] Through an analysis of case studies from Saudia Arabia, Nigeria and Sudan, it seems clear that torture is not an ‘Islamic Law’ issue, but rather one of government and the judiciary. One only need consider the US administration’s illegal and shameful post 9/11 response.[39] The use of “enhanced interrogation techniques” and human rights abuses at Abu Ghraib and Guantanamo are the result of adversarial legal arguments made to justify inhumane treatment.[40]
In 2002, Robert Postawko wrote of how hundreds “faced the firing squad in Iraq for murder, desertion, treason, sabotage, and economic corruption”.[41] The following year, hundreds of thousands would be killed as a direct result of the US-led invasion. Having counted 299 warnings within the Qur’an against persecution, Bassiouni demonstrates the “ample guidance to enlightened legal policy for the purposes of establishing a just and humane society.” Where this is not the case – in both Muslim and non-Muslim societies – the explanation is indeed extraneous to Islam.[42] Some Muslim-majority states, such as Malaysia and Morocco, have sought to harmonise Islamic principles with human rights by reforming their criminal justice systems. Judicial discretion (“tazir”) has replaced corporal punishment with alternative sentences; discretionary punishmentallows judges to issue alternative, non-violent sentences in cases where hudud punishments may seem disproportionate. Human rights scholars within the Muslim world clearly argue that the Qur’an prioritises mercy and proportionality, making room for penal reform.
Prohibition of torture might still be achieved in states with Islamic Law – not by the abolishment called for in CAT and the ICCPR, but rather through greater engagement with the legal system itself, promoting the replacement – or deployment – of Ta’zir punishments, rather than Hudud.[43] Alfitri has argued that Islamic Law can be reconciled with the ICCPR (and CAT) through “strictly adhering to the procedural and evidential requirements prescribed by the Koran which is then theorized by classical Islamic jurists”.[44] The cases of Safiyatu Hussaini and Amina Lawal in Nigeria clearly show the importance of interpretations of Islamic Law, and there is much to learn from the perspective of former Pakistan Supreme Court Chief Justice Afzal Zullah,and the ‘harmonistic’ perspective that adequate legal protection and representation would go a long way to protecting the human rights of all involved.[45]
According to Reza, it is the development of Islamic Law – and power wielded by jurists – that has shaped such contested views, rather than the origin of Islam itself.[46] Both the justification for investigative torture and the prohibition of torture can be found in the fiqh or siyasa, and such competing legal authority is rather the point. Islamic Law, “ultimately means what Muslims decide it means.”[47] As Reza notes, one of Prophet Muhammad’s teachings warns that, "God will torture [in the Hereafter] those who torture people in this world.”[48] The clear trend towards Muslim-majority states signing up to the 1984 Convention Against Torture (CAT) and, to a lesser extent, its Optional Protocol, shows progress. Iraq signed the ICCPR in February 1969, for example (ratifying it in January 1971); on 7 July 2011, Iraq ratified CAT. The United Arab Emirates ratified CAT with reservations, allowing for “lawful sanctions applicable under national law, in 2012.” That same year, similar reservations by Qatar – from its ratification of CAT in 2000 – were withdrawn. The trend is positive, but it will be continued to be critiqued by those favouring a universal approach.[49]
Rights of the Child – and international engagement:
Article 24 of the ICCPR and 1989 CRC recognise children's rights and their need for ‘special protection’. Similarly, Islamic law stresses the welfare of children, as seen in the OIC Cairo Declaration on Human Rights (1990), the OIC Covenant on the Rights of the Child in Islam (2004), and the Rabat Declaration on Child’s Issues (2005). Areas of clear convergence include the protection of children’s rights, prohibition of child labour, and the emphasis on family responsibility. Areas of divergence, such as child marriage and inheritance rights, demonstrate the need for further harmonisation between Islamic law and international norms – not inevitable incompatibility.
Today, Muslim-majority states engage with international human rights mechanisms (the sole exception being Afghanistan – although this is also debatable), and an overwhelming support of human rights is demonstrated through OIC Resolutions, for example a 1998 resolution on member state coordination on human rights, which defined the “universality and comprehensive nature of Islamic values with respect to human rights”.[50] An OIC ‘Follow Up Resolution’ asserted again that, ‘human rights are universal in nature,’ calling for “the non-use of the universality of human rights as a pretext to interfere in the states’ internal affairs and diminish their national sovereignty.”[51] It is certainly not inconsistent with Islamic law for Muslim nations to engage with the modern international order.[52]
Conclusion:
While the adversarial perspective to the relationship between Islamic law and human rights highlights areas of legal and doctrinal conflict, Islamic law has the capacity for reinterpretation to align and coexist with contemporary human rights standards. The diversity of approaches in Muslim-majority states, demonstrating that legal practice varies widely, suggests that human rights and Islamic law are not necessarily incompatible but rather require ongoing dialogue and legal evolution. Ultimately, this critical debate underscores the importance of ongoing dialogue between Islamic legal traditions, international human rights law, and humanitarian law to foster greater compatibility and understanding. Indeed, Iraq’s ongoing personal status debate demonstrates more than ever the need to engage with Islamic legal theory – and classical jurisprudential processes such as Shura (consultation), Ijtihad, and Qiyas (analogical reasoning).
The adversarial and harmonistic perspectives offer just two competing narratives on the relationship between Islamic law and human rights. While the adversarial perspective highlights areas of irreconcilable conflict, many scholars argue that Islamic law has the capacity for reinterpretation to align with human rights norms. The experiences of different Muslim-majority states demonstrate that legal practice varies widely. Ultimately, the debate underscores the importance of ongoing dialogue between Islamic legal traditions, international human rights law, and IHL to foster greater compatibility and understanding. As Charles Tripp has so convincingly shown, the impact of global capitalism has also shaken Islamic norms – with a striking variety of responses in the “Muslim world,” which may also have a lot to teach the West about reducing future financial crises.[53] And as with so many new ways of imagining the world, lie huge opportunities.[54]
Makau Matua, whose words began this essay, considers that the human rights movement “does not deeply resonate in the cultural fabrics of non-Western states, except among hypocritical elites steeped in Western ideas”.[55] Perhaps this is the point. The “West” ought to note the log in its own eyes before judging too harshly the splinters in others, starting with its atrocious response to human rights and dignity in the wake of 9/11. An adversarial approach to the relationship between Islamic Law and Human Rights is too often dangerously ignorant; “Anglo-American representations” of Islamic law deserve re-evaluation.[56] Baderin’s scholarship proves how much more in common there is.[57] But just choosing a side is not enough. The harmonisation approach needs the support of constructive interpretations, and the use of the ‘margin of appreciation’ doctrine in interpreting human rights treaties.
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[1] Makau Matua, Human Rights: A Political and Cultural Critique (PUP 2002) 14.
[2] International Covenant on Civil and Political Rights (ICCPR) 999 UNTS 171; Convention on the Rights of the Child (CRC) 1577 (20 November 1989).
[3] Mashood A. Baderin, International Human Rights and Islamic Law (OUP 2003) 231.
[4] Andrew Clapham, Human Rights: A Very Short Introduction (OUP 2015) 5.
[5] Baderin, ‘Human Rights and Islamic Law: The Myth of Discord’ European Human Rights Law Review (2) (2005) 167.
[6] Baderin, Islamic Law: A Very Short Introduction (OUP 2021) 115; Majid Khadduri, The Islamic Law of Nations: Shaybani’s Siyar (John Hopkins Press 1966).
[7] Universal Declaration of Human Rights (10 December 1948); ICCPR.
[8] Baderin (2021) 120-21; Constitution of Iraq (2005) Arts 2 and 14.
[9] Abdullahi Ahmed An-Na’im, Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (University of Pennsylvania Press 1995) 19.
[10] Baderin, ‘Engaging with Abdullahi An-Na'im's Philosophy on Islam and Human Rights’, Emory International Law Review 36 (2022) 610, 635.
[11] Reza Afshari, ‘An Essay on Islamic Cultural Relativism in the Discourse of Human Rights’ Human Rights Quarterly 16(2) (1994) 236.
[12] An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse University Press 1990) 167.
[13] Ibid 170.
[14] Jack Donnelly, ‘Human Rights and Human Dignity’ American Political Science Review (1982) 315.
[15] Baderin, ‘Islam and the Realization of Human Rights in the Muslim World’ Muslim World Journal of Human Rights 4(1) (2007) 10.
[16] Baderin (2021) 21.
[17] Baderin (2003) 23.
[18] Baderin, ‘Religion and Human Rights: Towards a Better Understanding’ TAFHIM: IKIM Journal of Islam and the Contemporary World 3 (2010) 77; Clapham (2015) 14.
[19] Rochelle Terman and Joshua Byun, ‘Punishment and Politicization in the International Human Rights Regime’ American Political Science Review (2022) 385.
[20] An-Na’im (1990) 187.
[21] ICCPR, Article 19.
[22] Baderin (2003) 128.
[23] Clapham (2015) 110.
[24] Najib Mahfous, Al-Ahram (2 March 1989).
[25] Abdullah Saeed, Human Rights and Islam (Edward Elgar Publishing Limited 2018) 179.
[26] Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (2012) 65, 85-97.
[27] Mayer (2012) 5; Mayer, ‘A Critique of An-Na’im’s Assessment of Islamic Criminal Justice’, T. Lindholm and K. Vogt (eds.) Islamic Law Reform and Human Rights (1993).
[28] Bhikhu Parekh, ‘Hate Speech: Is there a Case for Banning’ Public Policy Research (2006) 223.
[29] Mayer (2012) 47.
[30] Mohammad Hashim Kamali, Freedom of Expression in Islam (Cambridge 1997) 88.
[31] Qur’an, English Meanings and Notes (Saheeh International 2012).
[32] Baderin (2003) 125.
[33] Ibid 118-258.
[34] Gehan Gunatilleke, ‘Criteria and Constraints: the Human Rights Committee’s Test on Limiting the Freedom of Religion or Belief’ Religion and Human Rights 15 (2020) 20.
[35] ICCPR, Article 7; Prosecutor v Furundžjia (IT-95-17/1) Trial Chamber (10 December 1998) 53.
[36] An-Na’im (1995) 30.
[37] Ibid 38-9.
[38] Alfitri Alfitri, ‘Can the Requirements of Shariah Law Regarding Criminal Punishments be Interpreted in a Way that is Compatible with the ICCPT and CAT?’ Indonesian Journal of International Law 7(1) (2021) 103.
[39] John C. Yoo, and Robert J. Delahunty, Memorandum for William Haynes II (9 January 2002); Senate Select Committee on Intelligence (3 December 2014); Rasul et al. v Bush 124 S.Ct 2686 (2004).
[40] Philippe Sands, Torture Team (Palgrave Macmillan 2008).
[41] Robert Postawko, ‘Towards an Islamic Critique of Capital Punishment’ UCLA Journal of Islamic and Near Eastern Law (2002) 270.
[42] M. Cherif Bassiouni, ‘Death as a Penalty in the Shari'a’ (1999) 84.
[43] Baderin (2003) 85.
[44] Alfitri (2021) 135.
[45] Philip Ostein, Sharia Implementation in Northern Nigeria 1999-2006 (2007); Rudolph Peters, ‘The Re-Islamization of Criminal Law in Northern Nigeria and the Judiciary: The Safiyyatu Husseini Case’ in Masud, Peters and Powers (eds.) Dispensing Justice in Islam: Qadis and their Judgements (2012).
[46] Sadiq Reza, ‘Torture and Islamic Law’ Chicago Journal of International Law 8(1) (2007) 25.
[47] Ibid 38.
[48] Ibid 41.
[49] Lutz Oette, The Transformation of the Prohibition of Torture in International Law (OUP 2024).
[50] OIC Resolution No. 51/25 On Human Rights Coordination of Member States (1998).
[51] OIC Resolution No. 1/38 Follow Up and Coordination of Human Right Work (2011).
[52] Baderin, ‘The Evolution of Islamic Law of Nations and the Modern International Order’ The American Journal of Islamic Social Sciences 17(2) (2000) 57.
[53] Charles Tripp, Islam and the Moral Economy (CUP 2006) 11; Baderin (2021) 101.
[54] Ibid 194.
[55] Matua (2002) 14.
[56] Edward Said, Covering Islam (Vintage 1997).
[57] Baderin, ‘Establishing Areas of Common Ground between Islamic Law and International Human Rights’ International Journal of Human Rights (2001) 105.
