Confrontation of Islamic Sharia and Human Rights at the Council of Europe

Since January 2016, the discussion at the Parliamentary Assembly of the Council of Europe (PACE) of a report on the incompatibility of the Sharia law with Human Rights is long overdue. The ECLJ was able to consult its most recent version, dated 19 April 2018, which clearly shows the failure and impossibility of integrating Islam within the framework of protection of Human Rights. Dilatory strategies are being used to avoid the debate on this report, as it bothers both Muslim countries and progressive ideologues. The Dutch Parliamentarian Pieter Omtzigt (EPP/CD), initiator of the motion for a resolution asking for the report,[1] had explained to the ECLJ in February 2017: “The work is not going very fast but it should be done this year.” The consideration of this report on Sharia law was on the agenda of the PACE Committee on Legal Affairs and Human Rights on 25 April 2018,[2] but was cancelled that very morning.

The context of corrupt practices involving Azerbaijan and Turkey

This procrastination seems related to the pressures of Turkey and its accomplice Azerbaijan on the rapporteur Antonio Gutierrez (PSOE). These two countries contributed to removing from the drafting of this report the Parliamentarians known to be critical of Islam, in particular Pieter Omtzigt, who had gathered 27 Parliamentarians to ask for this report and was therefore expected to be rapporteur. However, contrary to common practice, another Parliamentarian was appointed, Meritxell Mateu (ALDE), who since left PACE and was replaced by Antonio Gutierrez. The latter had not signed the motion for a resolution asking for the report on Sharia law[3] and was appointed rapporteur with the support of the Parliamentarians of Turkey and Azerbaijan. In adjourning the consideration of the report by the Committee on Legal Affairs and Human Rights, Antonio Gutierrez is postponing the vote and the adoption of the likely resulting resolution. Does this postponement from meeting to meeting aim at having the report on Sharia law fall to oblivion?

It is not the first time that doubtful methods of influence by Turkey and Azerbaijan have been observed in the Council of Europe. In addition to its threats to open the floodgates of migration, Turkey drastically reduced its contribution to the budget, plunging the organization into an unprecedented financial crisis. The “Independent Investigation Body on PACE” recently showed the direct involvement of Azerbaijan in a system of corruption of Parliamentarians.[4] In particular, this corruption has influenced Parliamentarians’ votes and prevented the adoption of reports denouncing the violations of Human Rights in Azerbaijan.

Despite the pressures, the report on Sharia law in its current version has the advantage of clearly identifying the issues at stake. In line with common practice, it is mainly PACE officials who seem to have drafted it, with independence and some degree of objectivity.

Two irreconcilable legal systems

The report begins by clearly defining Sharia law as “being ‘the path to be followed’, that is, the ‘law to be obeyed by every Muslim’ (Surah 5)” (§8). Indeed, Sharia law, –“sharia” originally means “orientation in the right direction”– is the “set of prescriptions that must be respected by Muslims to be positively judged at the time of the Last Judgment.”[5] These norms do not constitute mere personal morals, because “some social structures –consistency of the family, of the economic life...– and a political organization - institutions of the power of the social and personal ethics.”[6] result from it. As the report recalls, Islam defined as early as the 7^th century (Hegira) a nomenclature of obligatory (wadjeb), lawful (moubah), forbidden (haram) and blameworthy (makrouh) acts.[7] The sources of this legal system are revealed and essentially comprise the Quran and Sunnah (Tradition of the Prophet), supplemented by Idma' (consensus of the community of believers) and Idjtihad (personal effort of the Islamic jurist).[8] Sharia law is therefore a set of stable rules of private law of exclusively religious origin aimed at ruling all social relationships. Legal sanctions are thus specified for acts belonging to private life, for example a hundred lashes in case of sexual intercourse outside of marriage (Quran, 24, 2). The report addresses several problematic aspects of Sharia law, including the superiority of men over women, the rules governing marriage, the inhuman punishment for certain crimes, the absence of freedom of religion and the discriminatory status of Christians and Jews. It concludes that Sharia law is incompatible with the European Convention on Human Rights, in line with the case law of the European Court of Human Rights (ECHR). Indeed, in Refah Partisi (the Welfare Party) and Others v. Turkey [GC] of 13 February 2003,[9] the Strasbourg judges had already noted “that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention.”

The current globalization encourages us to compare legal systems to draw parallels between them or make them compatible. Confronting Sharia law with the European Convention, however, is not only of theoretical interest, since these two legal systems are now trying to apply to common territories in Europe.

Social standards and values ​​competing in Europe

All or part of the territories of some member States of the Council of Europe can be considered today as part of Dar al-Islam, i.e. the “Islamized world”.[10] In other words, Muslims may find it legitimate to apply Sharia law in these territories, unlike Dar al-Harb (“house of war”) in which they are a minority. The report on Sharia law deals in detail with the cases of Western Thrace, a Greek region formally applying Sharia law for its Muslim community, and the United Kingdom, where there are about thirty Sharia councils, which have a role of dispute resolution for family conflicts. Some explanations are also given about the situation of Islam in Chechnya (Russian Federation) and Turkey, the brevity of which are regrettable. The French department of Mayotte, in which 95% of the population is Muslim, is also studied and taken as a model. According to the report, “from 2000 onwards, an acceleration of the process of making Mayotte a département led the French Parliament to (...) bring [the local civil status] into line with the principles of the French Republic,” in particular through the abolition of polygamy and of qadi justice (Muslim judges).

Another major interest of the comparison between Human Rights and Sharia law comes from the fact that some countries, such as Turkey, Albania or Azerbaijan, have signed both the European Convention and the Declaration on Human Rights in Islam.[11] The latter, adopted in Cairo on 5 August 1990, is a legal drafting of Sharia law. While most Muslim-majority States subscribed to Human Rights, some of them submit these rights to Sharia law, or at least to its Quranic rules.[12] In the Cairo Declaration, the rights and freedoms declared are indeed “subject to the Islamic Shari’ah” (Art. 24), which is “the only source of reference for the explanation or clarification to any of the articles of this Declaration” (Art. 25). The report on Sharia law shows the incompatibility between the Cairo Declaration and the European Convention on three specific points: “the concept of equality, the right to marry and the notable failure to recognize freedom of belief” (§18). For example, according to Sharia law, if Muslim men have the right to marry Jewish or Christian women without forcing them to convert, Muslim women are not allowed to marry non-Muslim men.[13]

Although the content of the report on Sharia law is broadly speaking satisfactory, there are some gaps, particularly in its conclusion. Contrary to the body of the report, it was probably written by the Parliamentarian Antonio Gutierrez and not by officials.

A religion totally foreign to the Human Rights

Admittedly, the report’s conclusion clearly reasserts the primacy of the European Convention over the three Islamic declarations of Human Rights signed in the 1980s and 1990s.[14] But the rapporteur also states with some naivety: “We should (...) strive to reconcile the various positions and create bridges of understanding between Sharia law and the [European Convention]” (§65). However, unless of course considering that it is up to the European Convention to adapt to the Islamic law, the “reconciliation” of Sharia law with Human Rights is impossible because of the very nature of Sharia law. Indeed, “Sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable,” considered by the ECHR as contrary to “the constant evolution of public freedoms” and its method of interpretation of the law.[15]

Furthermore, attempting to “reconcile” separately each right or freedom with Sharia law is illusory, insofar as the differences are a consequence of a fundamental difference between two notions of freedom. The conception of Human Rights establishes freedom as a starting point, which the individual will can direct as it wants in conformity with the rights and freedoms of others and some social objectives. In Islam, freedom is not a necessity and is expressed in any case within the limits of “lawful” acts of Sharia law.[16] The possible rights and freedoms are therefore an outcome, which is the consequence of a religious choice.[17] The Muslim notion of freedom is present in the Cairo Declaration which proclaims freedom in general, then rights and freedoms, “in accordance with the Islamic Shari’ah.” For example, Article 22 states that “everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah.”

These weaknesses of the report on Sharia law demonstrates the difficulty of Westerners to conceive a religion completely foreign to both liberalism and Christianity. It is essential to understand that Islam sees itself as an innate religion (din al-fitra), where man is thus born “spontaneously Muslim”.[18] The Cairo Declaration explicitly recalls it by declaring “Islam is the religion of true unspoiled nature” (Art. 10).

The deficiency of the positivist approach to deal with Islam

The report’s drafters seem to be reassured by repeatedly pointing out that unlike the European Convention, the Islamic declarations of Human Rights have no binding legal force. From a positivist point of view, these declarations are political and comparable to soft law in international law (§5). For example, the Cairo Declaration merely “serves as a general guidance for Member States” (preamble). The report recalls that these declarations are “more religious than legal texts” (§26), which is true from the point of view of international law. Nevertheless, this positivism cannot be approved by Islam, which puts Sharia law, especially the Quran, at the top of its hierarchy of norms. Indeed, for mainstream Islam, decisions emanating from human institutions must be accepted only when they comply with Sharia law or when they decide matters not covered by Sharia law.[19] If no legal value is recognized to the Islamic declarations of Human Rights in international law, they are declarations of allegiance to the Sharia law, which the signatory States consider as superior to any other source of law. This subordination of international law to Sharia law is admitted, as revealed for example by the Cairo Declaration in its Article 24 above-mentioned.

Moreover, it is common for international standards to be originally mere political declarations and eventually to become more significant and binding on States. By way of illustration, while the 1948 Universal Declaration of Human Rights (UDHR) has no legal value, it was followed in 1966 by two international covenants implementing it with binding force.[20] Similarly, the Charter of Fundamental Rights of the European Union, adopted on 7 December 2000 as a political declaration, acquired a binding force with the ratification of the Treaty of Lisbon in 2009. The Court of Justice of the European Union did even not wait until 2009 to give de facto a certain legal force to the Charter.[21] The adoption of three successive Islamic declarations of Human Rights could lead to the gradual development of real binding Sharia-based norms applicable to the signatory countries of these texts.

In addition, it is likely that these statements will contribute to the forming of customs of international law. In particular, the Cairo Declaration aims to offer an interpretation and adaptation of the UDHR of 1948. It was signed by 45 States, namely a quarter of the Member States of the United Nations (UN), which already gives it a strong legitimacy. Yet, “general practice accepted as law” creates customary rules, which are binding on States under international law.[22] Western countries are therefore not safe from having to accept at least part of this Islamic interpretation of Human Rights. In Europe, the ECHR assesses the strength of the “European Consensus” in interpreting the European Convention and determining the margin of appreciation left to States. In other words, when the ECHR finds “clear and uncontested evidence of a continuing international trend,” it has the authority to impose on States the obligation to align with this trend.[23] The ability of the Strasbourg judges to resist an interpretation of Human Rights based on Sharia law will be observed when the Grand Chamber will judge the case Molla Sali v. Greece.[24] Indeed, the applicant asked the ECHR whether Sharia law should apply to an inheritance disputes between Greek Muslim citizens, in accordance with the 1920 Treaty of Sèvres and the 1923 Treaty of Lausanne signed with Turkey. The ECHR will have to determine whether a member country of the Council of Europe can give to an Islamic mufti the responsibility to decide from Sharia law on inheritance disputes.

Should Europe fight Islam?

Usually, international law tends to apprehend the religious fact with an individualistic and socio-constructivist approach. In its case-law, the ECHR includes, in Article 9 of the European Convention on the freedom of thought, conscience and religion, “ideas, philosophical convictions of all kinds, with the express mention of a person’s religious beliefs, and their own way of apprehending their personal and social life.”[25] What matters is for the ECHR to determine the “intimate religious beliefs and convictions of persons.”[26] The previous UN Special Rapporteur on Freedom of Religion or Belief Heiner Bielefeldt similarly defined religions as “lived social phenomena, always consist of human beings with most different biographies, characters, inclinations, interests, positions and assessments.”[27] That is why he wanted to “[overcome] all forms of essentialism in the area of religion and belief.”[28] This liberal view adopted by international law totally omits the fact that a religion is also and above all a system of beliefs, dogmas, ritual and moral practices. Yet, such an objective and realistic conception of religion would be particularly appropriate in the case of Islam, which is based on holy and revealed texts, whose clarity and precision leave little room for subjective beliefs.

The report on Sharia law has the merit of moving away from current international law and adopting an objective conception of Islam. It recognizes that all Muslims must obey Sharia law (§ 8), quoting the Quran: “To each of you We prescribed a law and a method” (Quran, 5, 48). This same Sharia law, whose content is also objective, has already been declared by the ECHR in the Refah Partisi case “incompatible with the fundamental principles of democracy, as set forth in the Convention.”[29] Similarly, the resulting plurality of legal systems, involving discrimination of Christians and Jews (dhimmis) and contempt for “kuffar” (polytheists, atheists or assimilated), “would undeniably infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms.”[30] In the same judgment, the Strasbourg judges recalled that “everyone can observe in his private life the requirements of his religion.”[31] However, the report on Sharia law shows that preventing Muslims from applying and publicly promoting Sharia law amounts to asking them to give up an essential part of their religion. Islam is therefore implicitly recognized as contrary to the European Convention and Muslims are therefore asked to be less Muslim.

If, as the report on Sharia law shows, elements consubstantial to Islam are contrary to the European Convention, what should be done with Muslims living in Europe in large numbers? What consequences should the Member States draw from this observation of incompatibility, particularly with regard to their relationship with Islam or their immigration policy? It is in order to avoid opening these debates that dilatory operations delay and try to prevent any discussion about the report on Sharia law.

[1] Parliamentary Assembly of the Council of Europe, “Compatibility of Sharia law with the European Convention on Human Rights: can States parties to the Convention be signatories of the “Cairo Declaration”?”, Doc. 13965, 27 January 2016: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=22447&lang=en.

[2] Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Draft Agenda, AS/Jur (2018) OJ 03 Rev, 19 April 2018.

[3] Parliamentary Assembly of the Council of Europe, Doc. 13965, 27 January 2016 (above-mentioned).

[4] Council of Europe, Report of the “Independent Investigation Body on PACE,” 15 April 2018:     http://assembly.coe.int/Communication/IBAC/IBAC-GIAC-Report-EN.pdf.

[5] Jean-Paul Charnay, La Charia et l’Occident, Paris, L’Herne, 2001, p. 15.

[6] Ibid.

[7] Jahel Sélim, La place de la Charia dans les systèmes juridiques des pays arabes, Paris, LGDJ, 2012, p. 51.

[8] Robert Santucci, « Le regard de l’islam », in Agi Marc (dir.), Islam et droits de l’Homme, Paris, Des Idées et des Hommes, 2007, p. 158-159.

[9] ECHR, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98, and 41344/98, 13 February 2003, § 123.

[10] Jahel Sélim, op. cit., p. 43-44.

[11] Declaration on Human Rights in Islam, issued by the Organization of Islamic Cooperation (OIC) and adopted in Cairo on 5 August 1990.

[12] Jean-Paul Charnay, op. cit., p. 101.

[13] Marcel A. Boisard, « Les droits de l’homme en islam », in Agi Marc (dir.), Islam et droits de l’Homme, Paris, Des Idées et des Hommes, 2007, p. 34-35.

[14] The Universal Islamic Declaration of Human Rights was adopted in London on 19 September 1981 by private Islamic Councils; the Cairo Declaration on Human Rights in Islam was adopted on 5 August 1990; the Arab Charter on Human Rights, adopted on 15 September 1994 and revised in 2004, gathers the States from the Arab League.

[15] ECHR, Refah Partisi, § 123.

[16] Ihsan Hamid Al-mafregy, « L’islam et les droits de l’homme », in Agi Marc (dir.), Islam et droits de l’Homme, Paris, Des Idées et des Hommes, 2007, p. 121 : “Islam defines man as essentially a slave to God: Abdullah, says the Arabic formula (...). Freedom is goes hand in hand with submission; the human condition is defined by servitude.”

[17] Ibid., p. 124 : “This spiritual liberation is a point of arrival, an outcome that is attained only by the asceticism of the stripping (...). For the modern Westerner, on the contrary, freedom appears willingly as a starting point, a touchstone, a means of appreciating the real, and to choose such action, such thought, one value rather than another”.

[18] Rémi Brague, Sur la religion, Flammarion, 2018, chapter 5: « Droit et religion ».

[19] Rémi Brague, op. cit.

[20] The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in New York on 16 December 1966 by the United Nations General Assembly in its resolution 2200 A (XXI).

[21] See: CJEU, 27 June 2006, aff. C-540/03, European Parliament v. Council; CJEU, 3 May 2007, aff. C-303/05, Advocaten voor de Wereld VZW v. Leden van de Ministerraad.

[22] International Court of justice, Statute of the Court, article 38 §1: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”

[23] ECHR, Y.Y. v. Turkey, no. 14793/08, 10 March 2015, § 108.

[24] Application no. 20452/14, Molla Sali v. Greece, filed with the Court on 5 March 2014.

[25] Council of Europe/European Court of Human Rights, Research Division, “Overview of the Court’s case-law on freedom of religion,” 19 January 2011, updated on 31 October 2013:            https://www.echr.coe.int/documents/research_report_religion_eng.pdf, §9.

[26] Steering Committee for Human Rights, “Analysis of the relevant jurisprudence of the European Court of Human Rights and other Council of Europe instruments to provide additional guidance on how to reconcile freedom of expression with other rights and freedoms, in particular in culturally diverse societies”, 13 July 2017 : https://rm.coe.int/analysis-of-the-relevant-jurisprudence-of-the-european-court-of-human-/1680762b00, §90.

[27] Human Rights Council, Report of the Special Rapporteur on freedom of religion or belief, Document A/HRC/31/18, 23 December 2015, §48.

[28] Ibid.

[29] ECHR, Refah Partisi, §123.

[30] Ibid., §119.

[31] Ibid., §128.

Translation supervised by BMG.