The recent news of The Taliban recapturing the Afghan government has made the international community worried about the human rights situation of the citizens of Afghanistan, especially the rights of women and girls. In the recent press conference, the spokesperson of the Taliban claimed that they would abide by human rights and international law within the Taliban government’s interpretation of Sharia Law. According to the spokesperson, if other countries have different rules, different policies, different viewpoints, different approaches and regulations then why should the Islamic Emirate of the Taliban government be criticized for having policies and rules in accordance with their values and religious philosophy?
The statement made by the Taliban may hold some reasoning, from the persuasive critiques of the concept of the international human rights law. The statement opens the debate between the universality of human rights law and the doctrine of cultural relativism.
Article 1 of the Universal Declaration of Human Rights states that “all human beings are born free and equal in dignity and right.” Certain basic rights like a right to life, as a right to livelihood as well as security are inherent rights of humans by virtue of them being humans of equal worth. Humans exist to benefit from these rights.
If human rights are the rights everyone has simply because one is a human being, then human rights will be universal by definition. Thus, universalism justifies human rights based on the universality of human nature and the natural law. However, this concept of human rights is contested by cultural relativists—a theory that propagates that the notion of rights is culturally determined and is exempted from legitimate criticism by outsiders. Cultural relativists believe that morality is parallel to the norms of one’s culture and it is the sole source of the validity of a person’s rights.
Islamic viewpoints
The Islamic countries’ viewpoint on the Universal Declaration of Human Rights (UDHR) remained opposed from the beginning. Human rights norms of the modern world come into conflict with the requirements of cultures, religions, and philosophies of non-Westerner. There has always been philosophical disagreement over the validity and applicability of international human rights law by the Islamic state into their domestic jurisdiction. For instance, during the time of voting for UDHR, Saudi Arabia abstained from ratifying on the plea that it violated Islamic Law and Islamic moral beliefs. In 1984, the Permanent Representative of Iran to the United Nations went even farther, claiming that the UDHR “does not agree with the Islamic Republic of Iran’s system of values” and that “his nation would not hesitate to violate its prescriptions.”
Islamic values do not derive from the individualistic idea of human rights but rather emphasizes collective duties towards the community and society. Their concept of rights is based on the premise of duty and obligation rather than individual social rights and civil rights. Democratic nations view such ideologies as a violation of democratic values and human rights. But from the Islamic point of view, it is not a violation because rights only exist when the society perceives them as such.
Reservations on treaties
To equally represent all cultural views also means to equally represent both the democratic view of life and the traditional view of life. This puts the core International Treaties on human rights in a compromising position as it is obligated to represent all cultural and moral propositions. So how do we represent two opposing perspectives by respecting the authority of each member state and its legal, political, and cultural values?
Vienna Convention on the Law of Treaties (VCLT) (1969) provides for reservations which give the liberty to the state to have a bespoke derivation of the international treaties tailored for the domestic, constitutional, and religious legal architecture of the state. For an instance, the Convention on the Elimination of All Forms of Discrimination against Women has notably been subject to reservation by the Islamic state wherein priority is given to the laws on personal status derived from Sharia Law or the family code of the country. Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides ‘equal rights for men and women in all matters relating to marriage, both during marriage and at its dissolution’ which is subject to reservation by the member states. According to the member states, Article 16 should not contradict the family code of the country or conflict with ‘Sharia law based on Holy Quran’.
Extreme positions
It is not wrong to be culturally sensitive as traditional and cultural practices have long played an important role in the formation of civilization. However, the problem arises when radical cultural relativism supersedes legitimate traditional practices, threatening human dignity. In the past, when the Taliban ruled Afghanistan between 1996-2001, women and girls were subjected to systematic discrimination that, effectively, confined most females to their homes. Girls were not allowed to attend schools and women were not permitted to go out in public unless they were accompanied by their male counterparts as per the “family code” of the country. Punishment for disobeying these strict rules was severe, ranging from beating to execution. Taliban in the past exercised moral policing as an acceptable form of behavior disregarding individual suffering and individual rights and may continue to exercise it as they have returned to power.
It will be a good initiative from the Taliban to distinguish their extreme cultural particularities from legitimate claims based on religious practices, compatible with international human rights standards.
Recognizing and respecting that different society holds different cultural and moral views does not lead to the logical conclusion that inhumane practices and abuse must be tolerated. Infringement on dignity and right to life of a woman can never be justified by the particulars of the cultural norms. Imagine a situation where a woman is a widow or her husband is missing. She does not have a male member to accompany her or provide for her livelihood. Imagine if she is assaulted and beaten in the middle of the road because she is seen alone in public. She is trying to explain her situation, but they do not listen to her and punish her severely for talking to a stranger and generating public attention. Would you deem this behavior to be acceptable? Maybe beating a woman and imposing moral restrictions even if her children die of hunger is not a bad thing for them and therefore might be justified by their culture. So, should we, by embracing cultural relativism, look over such crimes and accept things as they are? Of course not. Gender-based violence is overlooked and legitimized by reference to cultural particularities in a society.
The Foundation of international human rights law is built upon the notion of human dignity which foremost aims to prohibit torture, inhuman or degrading treatment, or punishment. Such prohibition helps to build public morality that rejects mistreatment and violence towards a human and is independent of cultural or traditional considerations. It will be a good initiative from the Taliban to distinguish their extreme cultural particularities from legitimate claims based on religious practices, compatible with international human rights standards. After all, the Taliban said that they wish to be recognized by the world as the legitimate representative government of the people of Afghanistan.
Niyati Adhikari, a lawyer by profession, holds a Master’s degree in International Criminal Law and International Human Rights Law from Bangor University, UK.
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