The Prospects and Problems of the Marrakesh Declaration on the Rights of Religious Minorities in Muslim Majority Communities

Abstract

The aim of the Marrakesh Declaration is to tackle discriminatory practices against religious minorities living under Muslim majority rule through the promotion of religious pluralism. Nevertheless, the realization of this aim continues to generate debate among scholars. This paper raises and analyzes the following questions. Who are the religious minorities in Muslim majority states? What is the cause of their persecution? What theories explain the problem? How unique is this approach to human right norms, and how different is the Marrakesh Declaration compared to similar initiatives like the Cairo Declaration on Human Rights 1990? The paper finds that the Marrakesh Declaration focuses on one aspect of religious pluralism to the exclusion of others. The paper argues that human rights norms viewed through the framework of Islam and presented as tools for negotiation instead of norms that are universal, and by extension higher than sharia norms, in Muslim majority societies are more appropriate than the Medina Charter as framework for the achievement of the objectives of the Marrakesh Declaration.

Keywords:

• Marrakesh Declaration
• Islam
• freedom of religion
• pluralism
• diversity

Muslim majority countries, particularly in the Middle East, are grappling with the problem of intra-Muslim religious conflicts that have claimed thousands of innocent lives, traumatized millions, caused massive destruction of property and strained the trust and peaceful coexistence of people in the countries (Wehrey et al. 2010; Terrill 2011). For example, in Syria and Iraq in particular, the notorious Sunni-inclined Islamist group by the name of Islamic State in Iraq and the Levant (ISIL) unleashed terror on Muslims and non-Muslims alike because of differences in religious beliefs (UN Commission of Inquiry 2014).¹ They killed Shi’a Muslims because of variances in Islamic religious ideology and the Shi’a have retaliated for the same reason (Counter Extremism Project 2016).² They killed non-Shi’a Muslims, including Sunnis, who differ from them in the interpretation of Islamic injunctions. They also killed non-Muslims, such as Yazidis and Christian Arabs, who are citizens of the two countries on the basis of their different religious beliefs. The current fight in Yemen between Shi’a and Sunni groups, with the sides getting support from the governments of Iran and Saudi Arabia, respectively, has rendered thousands of Yemenis, including women and children, ultimately rendering the entire country unfit for human survival.³

In reaction to these violent confrontations, constitutional law scholar Shaikh Abdullah bin Bayyah, under the auspices of Forum for the Promotion of Peace in Muslim Societies based in the United Arab Emirates and the Kingdom of Morocco, jointly organized an International Conference at Marrakesh in Morocco from 25 to 27 January 2017. The title of conference was “The Rights of Religious Minorities in Predominantly Muslim Majority Communities: Legal Framework and a Call to Action,” the aim of which was to address cases of discrimination and persecution of religious minorities living under Islamic Majority rule using the Medina Charter⁴ as a framework (Hayward 2016). The organizers believed that the Medina Charter contains solutions to the quagmire in the Middle East. For example, they claimed that the charter is in harmony with documents such as the United Nations Charter and the Universal Declaration of Human Rights (UDHR) and could therefore serve as a framework for national constitutions in countries with Muslim majority populations (Hayward 2016). They cited provisions on freedom of movement, property ownership, mutual solidarity, justice, and equality before the law to support their claims.

In analyzing these developments, this paper is divided into four parts. The first part addresses the issue of religious pluralism and oppression of religious minorities in Muslim majority societies. The second explores the objectives and problems of the Marrakesh Declaration, including its lack of concern for Muslim religious minorities under Muslim majority rule and the necessity of expanding its reach to include Muslim religious minorities. The third part identifies the problems with using the Medina Charter as a framework to actualize the objectives of the Marrakesh Declaration. The fourth part examines the benefits of using human rights norms understood through the prism of Islamic law to reach the Declaration's objectives, particularly with respect to minority Muslim sects. The paper ends with a conclusion summarizing these findings.

Specifically, this article analyses the following questions: Who are the religious minorities in Muslim majority states? Who is persecuting them and why? How unique is the Marrakesh Declaration approach in tackling the problem, considering that Muslim and Arab countries have made similar attempts in the past through documents such as the Cairo Declaration on Human Rights of 1990? The paper concludes that human rights norms, viewed through the framework of Islam and presented as tools for negotiation instead of norms that are universal and higher than sharia norms are more appropriate than the Medina Charter as framework for the achievement of the objectives of the Marrakesh Declaration in Muslim majority societies. In other words, the goals of the declaration are achievable with human right norms, viewed through the mirror of Islam, and applied as norms that are friendly to Islam. This further means that, the actualization of the objectives of the Marrakesh Declaration may not be achievable if solely hinged on the Medina Charter.

Religious Minorities in Muslim Majority States

The population of Muslims in the world today is about 1.8 billion as of 2015 (Lipka 2017). Sunni Muslims constitute about 80–90% of this population and Shi’a Muslims constituting the remaining 10–20% (Pew Report 2011). A significant Muslim population in the world is located in predominantly Muslim countries, particularly in the Middle East and Northern Africa (Lipka 2017). Intra-Muslim religious conflict going on in the Middle East today is a consequence of an old rivalry between Shi’a and Sunni Muslims, which has led to series of conflicts and persecution of their adherents in places where each is predominant. Therefore, the emergence of division in Islam has continued to today with devastating consequences on the freedom of religion of Muslims and non-Muslims in Muslim majority societies. A brief discussion of the situations in Saudi Arabia and Iran provides a general idea of the situation.

Shi’a Minorities in Saudi Arabia

Saudi Arabia is a theocratic Islamic country with Sunni-Wahabi interpretation as dominant Islamic religious ideology (USCIRF 2018). Its population of 30 million includes 10 million expatriate workers of different religions. Eighty-five to ninety percent of the Saudi Muslim population is Sunni (USCIRF 2018, Saudi Arabia). Shi’a Muslims, including Isma’ilis, Zaydis, and others, are a religious minority in the country and constitute 10% to 15% of the country's population. The Shi’a religious minorities are located in the Eastern Province, especially in the oases of Qatif. Saudi authorities subdued this part of the country at the beginning of the 20th century, and since then they have suffered persecution because of their Shi’a beliefs. Scholars have described Saudi Arabia as the center of doctrinal anti-Shi’a thought in the Muslim world. The government of Saudi Arabia has sidelined the Shi’a Muslims in the country in the spheres of politics and governance. In the formation of the country's Shura Council (the legislature that advises the King), only six of 150 members appointed are Shi’a. In the area of religious practice, it is difficult for Shi’a Muslims to get license to build their mosques. In addition, the government does not fund their clerics in the same way as their Sunni counterparts. In addition, the government forbids them from some of their religious practices, such as the celebration of Maulid Al-Nabi (the Prophet Mohammed's birthday) or Ashura (the Day of Remembrance). In the area of education, the government does not give them any important position, and condemnation of Shi’a religious ideology prevails in classrooms and school textbooks, which describe them as unbelievers, mushrikun (polytheists) and worth desertion.

In November 2017, the government issued new counterterrorism law, which replaced an existing law from 2014. The new law criminalizes any form of challenge, directly or indirectly, to either the religion or justice of the King or Crown Prince. In addition, it criminalizes the promotion of atheistic ideologies in any form, as well as any attempt to cast doubt on the fundamentals of Islam. Further, it criminalizes publications that contradict the provisions of Islamic law and other acts deemed contrary to sharia, including non-Islamic public worship, public display of non-Islamic religious symbols, proselytism by non-Muslims and conversion by Muslims to another religion and (USCIRF 2018, Saudi Arabia). In July 2017, authorities executed four Shia individuals convicted on terrorism-related charges in connection with the 2011–12 Eastern Province violence and protests. In the same month, Supreme Court upheld death sentences of at least 15 individuals from the Eastern Province, presumed to be largely Shia. At year's end, at least 33 individuals, presumed to be largely Shia, were on death row for their roles in protests, in the Qatif area of the Eastern Province in 2011 and 2012 (USCIRF 2018, Iran).

Sunni Minorities in Iran

The Islamic Republic of Iran is a theocratic republic with Shi’a Islam as state religion.⁵ Shi’a Muslims constitute eighty-nine to ninety-four percent of the Muslim population, with five to nine percent Sunnis (USDOS, 28 July 2014, section 1), and other religions, fewer than one percent (AMAR, August 2012, p. 26, USDOS, 28 July 2014; section 1 and Pew Research 2009). Although the 1989 revision of the Constitution of the Republic of Iran contains some liberal and democratic elements, such as freedom of expression and separation of powers, but these are only marginally safeguarded in practice. Article 12 of the Iranian Constitution recognizes some religions, but not all.⁶ The official religion of the country is proclaimed to be Islam, with the Twelver Ja’afari School as indisputable in the country. However, the same provision states that other Islamic schools such as the Maliki, Shafi’i, Hanafi, and Hanbali are conferred full respect, and their followers are free to act in accordance with their own jurisprudence in performing their religious rites. The provision gives their schools authority in matters relating to religious education, affairs of personal status and so on.⁷

Religious minorities in the country have experienced various forms of persecution and discrimination, ranging from unlawful imprisonment, harassment and intimidation, unjust executions, politically motivated abductions by security forces, torture, arbitrary arrests and detention based on their religious beliefs. For example, Sunni Muslims are the largest religious minority group in the country. Nevertheless, Iranian authorities blocked their effort to building a mosque in Tehran despite long agitation to build (HRC, 12 March 2015, 14). In 2017, in an unprecedented manner, the Iranian spiritual leader, Ayatollah Khamenei, reacted positively to a letter from Molavi Abdol Hamid, the leader of the Sunnis in Iran, who complained of discrimination and maltreatment of the Sunni population in Iran.⁸ Khamenei had not reacted to several letters written to him by the Sunni leader before.⁹ In his reaction, he stated that based on the Iranian Constitution “the pillars of the Islamic Republic are duty bound” and therefore the state must refrain from discrimination against the Sunnis and other religious minorities.¹⁰ The substance of the complaint was that Sunnis were not getting high-level government jobs, and were subject to travel restrictions and barring Sunni leaders from visiting their stronghold of Zahedan.¹¹ Included were also cases of underrepresentation of Sunnis in government-appointed positions in provinces where they form a majority, such as Kurdistan and Khuzestan, as well as their inability to obtain senior government positions.¹²

In the area of political representation, Sunnis have not reserved seats but are permitted to serve in the body. There have, however, been cases of detentions and persecution of Sunnis clerics and congregants. Furthermore, there were continuous raids on Sunni prayer sites, several cases of violations of due process against Sunnis, and bans on Sunni religious literature and teachings in public schools, even in predominantly Sunni areas. Sunnis residing in provinces with large Sunni populations also complain of suppression by the judiciary and security services, discrimination, lack of basic government services, and inadequate funding for infrastructure projects (USDOS, 28 July 2014, section 2).

Another contentious issue apostasy. The July 2014 Iran Human Rights Documentation Center (IHRDC) report on apostasy in Iran indicates that there is “considerable ambiguity as to how apostasy laws affect Sunni Muslims” (ACCORD, September 2015, 25–50). This is because Sunni beliefs, including beliefs regarding apostasy, differ from those of Shi’a Muslims. Therefore, it is not clear whether Iranian authorities consider Sunni person to be apostates based on Shi’a or Sunni jurisprudence (HRC, 7 April 2014). It is not also clear whether a Shi’a person who becomes a Sunni could be charged with apostasy (IHRDC, 30 July 2014, 39–40). Nevertheless, a 2015 Amnesty International report showed that converts from Shi’a to Sunni Islam faced increased persecution (AI 2015). The Amnesty report built on an August 2014 report of the UN Secretary-General to the UN General Assembly (UN General Assembly 27 August 2014), which provides information about the conviction and sentencing of 15 Arab Sunnis who converted to Sunni from Shi’a in Ahvaz (AI 25 February 2015). The court convicted them for alleged propaganda against the system.

Other religious minorities also suffer in Iran. For example, the Iranian Constitution gives special status to Zoroastrian, Jewish, and Christian Iranians and calls them “recognized religious minorities.” Article 13 provides that:

Zoroastrians, Jewish, and Christian Iranians are the only recognized religious minorities, who, within the limits of the law, are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education.¹³

Despite this provision, the government discriminates against these recognized religious minorities. Furthermore; the Iranian authorities have placed restrictions on the rights of these religious minorities to practice their religions according to their understanding.

In addition, the government curtailed their proselytizing activities in the country. The government also discriminates against them in the area of employment and treats them as second-class citizens in the country. The most discriminated religious minority in Iran are the Baha’is, who do not enjoy any of these rights. Firstly, they are not officially recognized. Secondly, the Iranian authorities classified them as “unprotected infidels.” Thirdly, they are not free to practice their religion and the government has increasingly subjected them to one form of discrimination and the other because of their religious belief.

Furthermore, there are penal code provisions that discriminate against religious minorities in the country, particularly non-Muslims (Human Rights Watch 2012). For example, the punishment for adultery differs between Muslim couples and non-Muslims. A Muslim who commits adultery with a Muslim woman gets a hundred lashes as punishment. In contrast, the law subjects a non-Muslim man who commits adultery with a Muslim woman to the death penalty.¹⁴ In addition, the law does not prescribe any punishment for a Muslim man who commits adultery with a non-Muslim woman. Homosexuality between two Muslim men without consummation attracts a hundred lashes. Nevertheless, if the active party is a non-Muslim and the other a Muslim, the non-Muslim is subject to the death penalty.¹⁵ There are concerns also that the provisions of the Penal Code on premeditated murder do not make provision for the case of non-Muslims. No provision of the Penal Code envisages the murder of a non-Muslim by a Muslim. The implication is judges will exercise their discretion in cases of punishment of non-Muslims.¹⁶

The above exploration demonstrates the longstanding nature of the misunderstanding between Sunni and Shi’a Muslims in the world. The two countries are engaged in competition for leadership of Islam in the Middle East and the world at large. Iran triggered the competition after its revolution in 1979 by designing a foreign policy that focuses on aggressive export of its brand of Islam around the world. Saudi Arabia responded by making it part of its foreign policy to export its own Sunni (Salafi) interpretation of Islam across the whole world in order to protect itself from possible Iranian hegemony in the Middle East and the world at large (Moniquet 2013, 5–20; Perchoc 2017, 25). This competition has been responsible for the current mayhem in Syria, Iraq, Lebanon, Bahrain and Yemen and is gradually shaping the future of the region and global politics at large.

Theoretical Explanation of Religious Minority Oppression in Muslim-Majority Societies

The history of Islam shows that the Prophet of Islam (SAW) designed different means to create social stability and peace between and among Muslims and with non-Muslims living majority Muslim communities. Hadith traditions indicate several covenants, which the prophet entered with non-Muslims, including the Medina Charter under discussion in order to create social stability and harmony between Muslims and non-Muslims. In his final sermon, the Prophet said:

All humankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab. In addition, a white has no superiority over black nor does a black have any superiority over a white except by piety and good action. You should know that every Muslim is a brother to every Muslim and that the Muslims constitute one brotherhood. Nothing shall be legitimate to a Muslim, which belongs to a fellow Muslim unless it was given freely and willingly. Do not therefore do injustice to yourselves.¹⁷

This is an indication that Muslims have a history of toleration and, by extension, a culture of religious pluralism. Professor Khaled Abou El-Fadl, an expert in Islamic law states, “Islamic epistemology tolerated and even celebrated divergent opinions and schools of thought in contrast to what is obtained in Muslim countries today” (Abou El-Fadl 2002, 3, 9–13). Therefore, ordinarily, Muslim leaders everywhere ought to have learned how to leave in peace with Muslim and non-Muslims religious minorities under their rule. Whether they have learnt or not depends on facts on ground in different Muslim societies.

Intra-Muslim conflict did not happen during the time of the Prophet. but it started soon after his demise and it has continued up to the present day. The literature in Islam on religious minorities shows that the concentration of Muslim scholars is on issues related, first of all, Muslim religious minorities leaving under non-Muslim majority rule and only secondly to non-Muslim religious minorities leaving under Muslim majority rule. Islamic law experts Taha Jabir al-Alwani and Yusuf al-Qaradawi developed an Islamic legal theory in the 1990s by the name fiqh al-aqalliyyat (jurisprudence of Muslim minorities) to address the challenges faced by Muslim religious minorities living under non-Muslim majority rule (see Al-Qaradawi 2001; Al-Alwani 2003; Al-Qaradawi 2003; Fishman 2006). A second set of scholars examined how Muslim leaders manage cases of non-Muslim religious minorities under Muslim rule (Abou El Fadl 1994, 27; Nafi 2004, 83–90; Shavit 2016). This focus on non-Muslim religious minorities under Muslim role is also the focus of the Marrakesh Declaration. The area that has not been the focus of sufficient research is the case of Muslim religious minorities under Muslim majority rule—an area that is more ferocious than the two other cases. A salient example is that ISIS kills more Muslims than non-Muslims in their violent actions (Counter Extremism Report 2016). In many cases, Muslim religious minorities suffer more under Muslim majority rule than other religious minorities. Scholars from social sciences have developed theories that explain how governments manage religious diversity and how such diversity relates to the development of legal pluralism (Richardson 2014). First, there is the theory of historical presumption of expertise (Richardson 2014, 34). This theory presumes authorities in societies that have histories of religious pluralism, to have learned over time how to manage religious diversity. This holds even if there is a dominant religion that enjoys more privileges in the society. The implication is that where such history is missing, what follows is mishandling of religious diversity the consequence of which is “religious gerrymandering” and maltreatment of religious minorities (Richardson 2014).

Relating this to the cases of Saudi Arabia and Iran and other Muslim majority societies, it is valid to assert that they have not learned how to treat religious minorities under their rule. Islam has a tradition of tolerance and religious pluralism as shown in its history and the example of the Prophet of Islam (SAW). However, Muslim leaders have not learned this tradition. They have instead imbibed culture of intolerance towards both non-Muslims and Muslim religious minorities living under their political jurisdiction. Therefore, the persecution of religious minorities happening today in Muslim majority societies including countries in the Middle East is simply a result of intolerance and there is no valid religious explanation to justify it.

The second dimension of the religious minorities issue is the implication of religion-state patterns for freedom of religion (Richardson 2014, 35). The claim is if the society in issue is theocratic, as are Iran or Saudi Arabia, then the tendency for such a country to persecute religious minorities is clear (Richardson 2014). Iran has specifically identified Ja’afariya as the state Islamic religious ideology. Saudi Arabia is s Sunni-Wahabbi in its religious ideology. Both countries discriminate against Muslims living under their rule who espouse different Islamic religious ideologies. This may be true of many Muslim Majority states in the world. This is also pure intolerance.

A third dimension is the impact of the legal system on citizens. The claim here is that the judicial system of a country affects religious minorities, whether of the same faith or different faith, based on how it is fashioned (Richardson 2014, 35). The proposition is that where the justice system of a country is submissive to authorities, then “telephone justice”—political leaders giving instructions to judges to do their biddings—must flourish. Donald Black's theory supports this assertion (cited in Richardson 2014, 39–42). Black uses social status, cultural, and personal intimacy to explain the party that triumphs in disputes that arise in society. This theory allows a prediction of who will succeed at the end, namely those of higher social status in the society, who share cultural and perhaps even personal intimacy with decision makers (Richardson 2014, 35).

Relating this theory again to the cases of Saudi Arabia and Iran, it is valid to conclude that where religious minorities are involved in cases against the state or where the state is bringing a case against them, the authorities in the two countries will be unjust to the religious minorities unless there are intervening factors. This is clear from the history we have explored. The two theories are different but harmonizing (Richardson 2014). Nevertheless, they are useful in understanding how societal authorities generally, manage minority religious groups of the same faith or of different faiths.

Objectives and Problems of the Marrakesh Declaration

Against this backdrop of problems of religious pluralism in Muslim societies, it can be argued that the Marrakesh Declaration evinces a lack of concern for Muslim religious minorities under Muslim majority rule in a way that attests to the necessity of expanding its reach to include the Muslim religious minorities. The organizers of the Marrakesh Declaration conference invited about three hundred delegates, who included Islamic scholars, jurists, muftis, and ministers of religion from Muslim-majority countries and from countries with significant Muslim populations, such as Nigeria. Also invited were fifty non-Muslim observers, including Christians, from various traditions such as Catholics, mainstream Protestants, and Evangelicals. The aim was to deliberate on how to end discrimination and persecution of religious minorities living under Islamic majority rule, using the Medina Charter as a framework.

The Declaration has six objectives: (1) development of new jurisprudence on inclusive citizenship, (2) conceptualization of a form of a contractual citizenship to ensure equal treatment of all in a multicultural society (3) reorganization of Muslim educational institutions with a view to eliminating factors that aid extremism among Muslims, (4)support of movements for the just treatment of religious minorities in Muslim countries, (5)revival of the tradition of hospitality in Muslim lands for all faith groups, and (6) eradication of religious bigotry, vilification and denigration of what people hold sacred (Hayward 2016).

Scholars have generally supported the Marrakesh Declaration initiative, pointing to its capacity to address problems that similar initiatives have failed to address (Hayward 2016). Nevertheless, Swiss-Palestinian Islamic law scholar Sami Aldeeb has argued that the Declaration might not have a smooth operation unless Muslim countries end discrimination against religious minorities (Aldeeb 2016). As a solution, he calls for the abolition of Islam as state religion in Muslim countries, as well as of apostasy clauses and discrimination between Muslims and non-Muslims in matters of marriage. In addition, Aldeeb calls for more access to land for Muslims and non-Muslim citizens to build places of worship, eradication of norms of jihad and the reformation of textbooks from kindergarten to university level and regulation of the contents of media programs and Mosque sermons (Szerman 2016).

The Marrakesh Declaration did not take intra-Muslim conflicts and its implications for freedom of religion into account in its arrangement. This type of conflict is a result of negative religious pluralism in Muslim societies because of historical enmity between Shi’a and Sunni Muslims. Of course, religious pluralism does have a history in Islam; nevertheless, Muslims including their leaders have not learned or implemented it. A solution to this problem requires something more than the Medina Charter. This is especially because the Prophet of Islam (SAW) prepared the Medina document specifically to address the issue of non-Muslims during his time.

A further problem is the Declaration has not acknowledged the implication of religion-state relationships for the right to freedom of religion in Muslim-majority states. For example, Saudi Arabia and Iran, as stated elsewhere in this paper, have declared Islam as their state religion. Second, their official identification with Islam is in a particularly hierarchical form that has led to persecution of Muslim religious minorities that do not espouse to that ideology. The meaning of this is that, at the first level, the state identifies with Islam as state religion. At the second level, the state identifies with a particular religious ideology or interpretation within the religion of Islam over and above other equally acceptable ideologies or interpretations. At the third level, in order to maintain the particular form of identification they have chosen, to discriminate and maltreat their fellow Muslims who are minorities among them because of differences in their understanding of the religion. The position is the same in many Muslim majority states in the world.

That is why possibly, the Declaration did not define vague terms like “Muslim majority,” “contractual citizenship,” and “minority religions.” In addition, it has not defined the word “extremism.” In Muslim societies today, dangerous misinterpretations can arise from the use of words like “extremist,” “fundamentalist” or “terrorist” to refer to a religious group. Such labels, as law and religion experts Cole Durham and Brett Scharffs have observed, may expose such group to discrimination and cruelty by the state or by the political and religious majority groups in the society (Durham and Scharffs 2010, 293–329). According to these scholars, the term “extremist religion” is laden with judgmental normative content, as one person's extremism may be another person's orthodoxy (Durham and Scharffs 2010, 306–313).

This lack of definition may give authorities in Muslim-majority countries the opportunity and unfettered discretion to determine the identity of religious minorities. Indeed, the situation in Muslim-majority societies demonstrates that two different religious minorities exist with the Declaration focusing on only one, namely non-Muslim minorities living under Muslim majority rule. Muslim religious minorities living under Muslim majority political jurisdiction are not within the contemplation of the Marrakesh Declaration, even though the ferociousness of intra-Muslim religious conflict is often higher than the ferociousness of inter-religious conflict in Saudi Arabia, Iran and other countries.

A final problem of the Marrakesh Declaration—perhaps the one that produced the others--is the composition of the conference itself. The question that the Declaration has not addressed is how representatives were chosen and according to what criteria. This has led to questions about the legal status of the Declaration. Despite its shortcomings, the Marrakesh Declaration is a good initiative that carries the promise of ending religious persecution and discrimination against religious minorities in Muslim-majority societies. Its success, however, will depend on the ability of its promoters to review it and make it all encompassing. There are problems that thwart the objectives of the Marrakesh Declaration, but many of these are, arguably attributable to attempts to use the Medina Charter to serve a framework for the actualization of the objectives of the Declaration.

The Medina Charter as a Basis for Implementing the Marrakesh Declaration

The use of Medina Charter as a framework for the actualization of the objectives of the declaration has generated debate among scholars. The Medina Charter has been characterized as having a discriminatory effect that is inconsistent with the United Nations Declaration of Human Rights, because it encourages unequal treatment between Muslims and non-Muslims (Riddel 2016). The Medina Charter has also been rejected as vague in provisions such Article 14, which provides that “A believer will not kill a fellow believer for the sake of a disbeliever” (Mumisa 2016). There have been questions over whether the provision means that Islamic authorities should not punish a Muslim for killing a non-Muslim citizen living under Muslim majority rule, whether the life of a non-Muslim citizen was worth that of a Muslim, and whether the blood money paid for killing a non-Muslim citizen could be equal to the blood money paid for killing a Muslim (Mumisa 2016).

Anver Emon, a Canadian Islamic law scholar, has argued that there is no original document or archaeological evidence to establish the originality of the Medina Charter document. The only literary references by historians, who were themselves living centuries after the document's supposed creation, are no longer available and that this accordingly raises a fundamental problem regarding the reliability of the Medina Charter (Emon 2001). Even so, both Western and Islamic scholars agree on its authenticity based on the four under listed criteria developed by scholars (Emon 2001, 109–111). There are also prophetic traditions that refer to peace treaties entered into by the prophet of Islam with non-Muslims in his lifetime (Al-Bukhari 1997).¹⁸ The problem has been accessing the actual peace treaty documents and not merely mentions them. Narrators of prophetic traditions have not reported the contents of these. Therefore, it is difficult to dislodge Emon's argument concerning the authenticity of the Medina Charter today.

Benefits of Using Human Rights Norms From the Perspective of Islamic Law to Reach the Objectives of the Marrakesh Declaration

There are important advantages to using human rights norms to achieve the objectives of the Marrakesh Declaration. However, it establishes the necessity of presenting human rights norms through the perspective of Islamic law in Muslim majority societies in order to reach the goals of the Declaration. Given the deficiencies of the Medina Charter, human rights norms viewed through the mirror of Islam should have resonance in Muslim societies. But the success of such depends on the ability of human right norms promoters to repackage their proposals.

It is true that Muslim-majority countries have agreed to United Nations human rights conventions with reservations because of religion. Nevertheless, there are points of convergence on matters of ultimate concern between Islam and liberal human rights norms that authorities can explore to reach consensus on the goals of the Marrakesh Declaration. First, Islam protects the dignity of human beings and so do human rights norms. Second, Islam talks about justice even if it is against us our own or our relatives’ interests, and so do universal human rights norms. Third, Islam talks about sanctity of human life and prohibits unlawful killing of all manner of people, as do human right norms. There is no compulsion in the religion of Islam, and human rights norms protect freedom of religion.

Therefore, to negotiate the two worlds, this paper recommends a rationalist approach focusing on the ultimate concerns of both normative systems towards the interpretation of the norms of liberal human rights. Rationalist method in this context means, an interpretation of human rights that acknowledges the relevance of religion in world affairs. It means an interpretation that agrees to work with religion to achieve peace in the public arena. On the side of Islam, it has never abhorred human right norms per se—the universalism claim of human rights has been the problem. Therefore, repackaging of the human rights approach is what is required to create the requisite atmosphere necessary for its reception to reach the goals of the Declaration in Muslim majority societies. The advantage of this approach is the opportunity for mutual accommodation between Islam and human rights.

It requires liberal human rights regimes to suspend their claims to universalism, while also prompting Islam to see the need for negotiation on a rational basis. With dialogue of this nature, Islamic and human rights authorities might find ways to achieve the objectives of the Marrrakesh Declaration by applying human right norms through the lens of Islam. This could serve to end or at most minimize discrimination and persecution of Sunnis by Shi’a and Shi’a by Sunnis in the respective jurisdictions of Iran and Saudi Arabia, two countries seeking to export their brands of Islam to gain control of the democratic space in the Middle East and the world at large. The approach affords adherents of Islam the opportunity to assess human right norms through the lens of their religion. Both the Islamic and the human rights sides will insist on compliance with each other's norms. Muslims, if true to their tradition, will feel the imperative to justify their actions using the Qur’an and the traditions of the prophet of Islam in ways that will reduce politically motivated persecutions of Muslim and non-Muslim religious minorities leaving under their rule.

Islam emphasizes the issue of justice, dignity of the human person and consequences for not adhering to the principles of justice. Islam also recurrently accentuates compassion, the oft-heard Islamic phrase “in the name of God, the Compassionate, and the Merciful” itself stressing “God's compassion” by telling believers that God “has decreed mercy for Himself.”¹⁹ In this phrase, the qualities of compassion and mercy immediately follow God's name. This suggests that, to become compassionate is an important preoccupation of a Muslim's spiritual life—a compassionate human being will be diligent in respecting fellow human beings’ rights.

Further, Islam underscores piety in the most elegant manner. Excellence in piety is the only ingredient that makes one person better than another in the eyes of God. Piety makes people righteous in God's judgment, but it does not give them any special rights. This is one aspect of Islam's egalitarianism in terms of rights. Islam respects contracts and does not tolerate any violation of pledges from Muslims irrespective of the party involved. It never consents to anything more than a reciprocal action; for example, an unjust treatment by one person of another cannot be retaliated against with greater injustice, no matter how small it is. Islam always consider forgiveness better than vengefulness in all circumstances, and Islam recognizes individual responsibility. Hence, it does not allow one person to be punished for another person's crimes. Even the existing position on apostasy among Muslims today is under challenge from other Muslim scholars, but cannot benefit from this challenge unless there is dialogue.

Finally and most importantly, there is the concept of human dignity, which is one measure on which all or most human beings agree despite their differences and disagreements in the realm of religion. Disregarding human rights is tantamount to depriving human beings of the only thing that can protect them from cruelty and injustice. Religion, which emphasizes human dignity, will never support human rights violation; for to do so would be to sacrifice humanity in its entirety. Therefore, to protect Muslim and non-Muslim religious minorities under Muslim majority rule properly would require entrenching the above Islamic norms in governance. These principles constitute the spirit of Islam and the ulama must interpret the Quran and the traditions of the prophet, in line with the spirit of the religion. It is the moral responsibility of Muslims and non-Muslims to work toward global peaceful coexistence, to mitigate suffering individuals, and to defend the true spirit of Islam, which is negotiable with modern human right norms.

Conclusion

There are two types of religious minorities in Muslim-majority countries of Middle East and other parts of the Muslim world: Muslim minorities and non-Muslim minorities. The trend toward inter and intra-religious conflicts in Muslim majority states indicates that Sunni Muslims suffer where they are a minority under a Shi’a regime and Shi’a Muslims suffer where they are minority under Sunnis. The persecution of religious minorities is deep-rooted in the Muslim-majority countries even though Islam has a history of religious pluralism. This persecution has spurred violence. In other words, Muslims have a reach history of tolerance and religious pluralism; however, Muslim authorities have not learnt or retained this tradition. A preference for theocracy, with its negative implication for freedom of religion, is a factor that contributes to this culture of intolerance in Muslim societies.

Competition for space between Sunni and Shi’a adherents is a cause of intra-Muslim religious conflict in the Middle East and many Muslim-majority countries today. Violent confrontations between the two groups have revealed the enmity, hatred, and hostility of the environments of the two countries to the adherents of the two religious ideologies in each country. There are many obstacles that this poses for the actualization of the Marrakesh Declaration. These hitches show the impracticability of Islamic scholars developing a new jurisprudence of inclusive citizenship based on the Medina Charter to eradicate the discrimination and persecution of minority religious groups in the Muslim majority societies in the world.

Inclusive citizenship based on the charter of Medina does not solve the problem. This is because minority religious groups experiencing persecution in countries in the Middle East and other Muslim-majority societies are citizens of those countries; thus, the problem is not one of citizenship. In addition, there is no evidence to show that the lack of inclusive citizenship per se has contributed to the problem in the Middle East and other Muslim majority societies in the world. Saudi Arabia persecutes Shi’a Muslims who are citizens under their rule because they are Shi’a; Iran persecutes Sunni Muslims who are citizens because they are Sunnis. The problem is simply lack of tolerance and an acceptable arrangement for managing religious diversity among Muslims, which has given rise to negative religious pluralism in those societies.

In light of these factors, application of human rights norms through the lens of Islam as framework for the realization of the goals of Marrakesh Declaration is more fruitful than applying the Medina Charter. The objectives of the Marrakesh Declaration are achievable if scholars and authorities see human rights norms through the framework of Islam and accept them as tools for negotiation, rather than norms that are universal and higher than Sharia norms. The intentions of the Marrakesh Declaration are achievable within conjunction with human right norms viewed and accessed through the lens of Islam and applied as norms that are friendly to Islam in a not solely hinged on the Medina Charter. Marrakesh Declaration proponents should acknowledge that the major problem in the Middle East and other Muslim-majority societies in the world today is lack of tolerance for religious difference, which has given rise to negative religious pluralism among Muslims.

The solution therefore is not inclusive citizenship but lies in addressing the problematic presence of negative religious pluralism and by extension absence of a “right to be different” among Muslims in such societies. It is imperative for liberal human rights advocates to adopt a method that presents human rights as tools for negotiation and not norms that are superior to other norms. Additionally, authorities in Muslim-majority states should learn from the historical account of the practices of the Prophet of Islam and develop acceptable mechanisms to manage religious diversity in order to achieve stability in the public sphere.²⁰

Additional information

Notes on contributors

Ahmed Salisu Garba

Ahmed Salisu Garba is a member of the Faculty of Law of the Bauchi State University, Gadau, and is the Deputy Dean/Head of the Department of Private & Business Law. In addition, he is a final year doctoral student at the Faculty of Law of the Bayero University Kano, waiting for his viva defence on the regulation of religious preaching in some states of Northern Nigeria. He was a Visiting Scholar at the University of Iowa College of Law from August 2013 to December 2013. He has also presented and written many papers at different international conferences in the UK, USA, and African countries on religious freedom and pluralism.

Notes

1 This report documented disturbing accounts of the armed group's use of terror to subjugate Syrians living in its areas of control, as well as the use of extreme violence against both civilians and captured fighters.

2 In this report, it is stated that “the fact is that ISIS kills Christians because they are Christians; Yazidis because they are Yazidis; Shi’a because they are Shi’a. In addition to Shi’a, they also kill Kurds, Shabaks, and Sufis and so-called apostates, denouncing them as Kuffar.” The report further states, “Although ISIS typically calls for attacks on non-Muslims outside the Levant, the majority of the group's victims are Muslims living in or near the so- called Islamic State.”

3 Guy Birchall. 2017. “Middle East Battle, What is the Yemen War about who is fighting who, why is Saudi Arabia involved and how many dead,” The Sun, 13 June.

4 The Medina Charter is a document that Muslim popularly called the Medina Constitution. The story is that Prophet Muhammad [SAW] prepared it in 622 A.D to serve as a covenant between Muslims in Medina and non-Muslim tribes including Jews. There is no dispute among Muslims on the authenticity of the event and the existences of a covenant. However, what is under dispute today is whether the document in circulation in its present form was actually the document that the prophet of Islam prepared with sections, articles and sub-sections like a modern Constitution.

5 Shia Islam differs from Sunni Islam mainly in the legitimacy given to Ali’s succession, Mohammed’s nephew, over any other possible successor. The origin of Shiism lies in the martyrdom of Ali’s son Husayn, who was killed by Umayyad troops in the Battle of Kerbala in the Islamic month of Muharram in the year AD 680. Several branches of Shiism recognise a different number of Imams (successors) of Ali. The majority of Shia people recognize 12 Imams.

6 Article 12 of the Constitution of the Islamic Republic of Iran provides,

The official religion of Iran is Islam and the Twelver Ja’afari School [in usul al-Din and fiqh ], and this principle will remain eternally immutable. Other Islamic schools, including the Hanafi. Shafi’I, Maliki, Hanbali, and Zaydi, are to be accorded full respect and their followers are free to act in accordance with their own jurisprudence in performing their religious rites. These schools enjoy official status in matters pertaining to religious education, affairs of personal status (marriage, divorce, inheritance, and wills) and related litigation in courts of law. In regions of the country where Muslims following any one of these schools of fiqh constitute the majority, local regulations, within the bounds of the jurisdiction of local councils, are to be in accordance with the respective school of fiqh, without infringing upon the rights of the followers of other schools.

7 See the same Article 12 of the Iranian Constitution already quoted in note 6.

8 This information is from an interview published by state-run Iranian Students News Agency, ISNA, on Saturday, November 11. An Iran based radio station called Radio Farda reported it on November 12, 2017. It is available online at: https://en.radiofarda.com/a/iran-sunni-leader-complains-of-discrimination/28849230.html. Also, see descriptions of the content of previous letters in Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014; Fatema Aman, “Iran's Uneasy Relationship with Its Sunni Minority,” Middle East Institute, 21 March 2016; “Iran: Lift Restrictions on Sunni Worship,” Human Rights Watch, 9 November 2013.

9 Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014.

10 Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014.

11 Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014.

12 Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014.

13 Constitution of the Republic of Iran 1979 with 1989 amendment.

14 Article 88 of the Penal Code of Iran states, “The penance for adultery of n unmarried woman or an unmarried man is one hundred lashes.” Article 82 of the penal Code however states,

In the following circumstance the penance for adultery is execution and there is no difference between young and old or between married or unmarried woman […] (c) adultery of a non-Muslim man with a Muslim woman. The adulterer will be executed.

15 Article 121 of the Penal Code states, “The Penance for toreplay of two men without consummation is one hundred lashes for each one.” However, if the active party is a non-Muslim and the passive party is a Muslim, the penance for the active party is execution.

16 Article 207 of the Penal Code staes: “If a Muslim is murdered, the murderer will be retaliated and the accessory to the murder will be sentenced to between three to fifteen years imprisonment.” In addition, Article 209 of the Penal Code states: “If a Muslim man premeditatedly murders a Muslim woman, he will be sentenced to retaliation, but prior to retaliation the heir of the slain woman should pay half the mulct [blood money] of the man to him.”

17 The inal sermon of Prophet Muhammad (SAW) in the year 10 A.H. delivered during the pilgrimage of the year 632 C.E., the ninth day of Dhul Hijjah, the 12^th month of the lunar year, at Mount Arafat, available at: https://hadithoftheday.com/the-last-sermon

18 Sahih al-Bukhari, ch 26, vol 4, no. 392 at 57; ch 28, vol 4, 4.395, at 260; ch 33, vol 4, no 4.399 at 264; ch 39-A vol 4, no 4.408 at 271; ch 31, vol 9, no 9.50, at 34; ch 32, vol 9, no 9.51, at 34).

19 Holy Qur’an (Al-An’am), ch 6:12 and 54.

20 Let me use this opportunity to thank the sponsors of the Commonwealth Initiative for Freedom of Religion and Belief (CIFoRB) project at the University of Birmingham for their support in every way. My participation in the project gave me opportunity to learn from experts and the experience has enriched this paper. Secondly, I also thank the International Center for Law and Religion Studies (ICLRS) at Brigham Young University, Utah, United States of America for hosting me and 14 others from different countries at Oxford in the summer of 2018 for advanced training on religion and rule of law. The knowledge I have gained in the program helped me to clarify my thoughts in this paper. Indeed, these two opportunities are wonderful and very encouraging.