Is Sharia compatible with Human Rights? This concrete question is more and more important in Europe, particularly for women, and the Parliamentary Assembly of the Council of Europe (PACE) has tried to answer it.

Indeed, among the large Europe, there are territories where the sharia (or “Islamic law”) is applied. This raises a problem in view of Human Rights, in so far as these States are members of the European Convention on Human Rights (ECHR) and at the same time they apply or respect an Islamic justice opposed to the Universal Declaration of Human Rights (UDHR) and the ECHR.

Three member countries of the Council of Europe have ratified both the European Convention on Human Rights and the Cairo Declaration, which is a declaration of Human Rights compatible with the sharia. These countries are Albania, Azerbaijan and Turkey. One must add that the Russian Federation and Bosnia and Herzegovina have not signed the Cairo Declaration but are members observers of the Organization of the Islamic Conference and they have signed the ECHR.

This Cairo Declaration of 5^th August 1990 stipulates inter alia that “Islam is the religion of unspoiled nature”. It does not contain a right to freedom of religion, does not confirm the equality before the law of all men regardless of their religion, and finally Article 25 stipulates that “The Islamic Shari'ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration”.

Some of the principles stated in the Islamic law contravene the principles which are recognized as Human Rights, and first of all, freedom of religion. According to the sharia, a Muslim does not have the right to change his religion to another religion or to atheism. If he does so, he is an apostate, which generates his civil death (opening of his succession) and deserves a death penalty.

The Grand Chamber of the European Court of Human Rights had the opportunity to give an answer to that question of compatibility in 2003: it “concurs in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention”[1].

Seized by several of its members, the PACE will establish in the next few months a report on these incompatibilities, determine on which territories of members of the Council of Europe the sharia is applied and what consequences are to be drawn from it.

Mrs Meritxell Mateu (ALDE, Andorra) was the rapporteur of the Commission before she left the PACE. She wrote a preliminary note under this procedure. This note defines sharia as follows:

“Sharia law is understood as being ‘the path to be followed’, that is, the ‘law’ to be obeyed by every Muslim. It  divides  all  human action into  five categories–what  is obligatory, recommended, neutral, Disapproved of and prohibited –and takes two forms: a legal ruling(hukm), designed to organise society and deal with everyday situations, and the fatwa, a legal opinion intended to cover a special situation. Sharia law is therefore meant in essence to be positive law enforceable on Muslims. Accordingly, it can be defined as ‘the sacred Law of Islam’, that is, ‘an all-embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects’.”[2]

Besides the different international instruments written and ratified by Muslim countries, the Rapporteur highlighted the members States of the Council of Europe in which sharia law is being applied, more or less legally: Greece, the United-Kingdom, Russia and Turkey.

Western Thrace in Greece

Under the Treaty of Lausanne of 24 July 1923, the Greek State recognised the existence of only one minority on Greek territory, namely the ‘Muslim’ minority of Western Thrace in north-eastern Greece. Greek law allows Greek citizens who are Muslims and resident in Western Thrace to use Sharia law as a parallel legal system for private law. The law gives muftis judicial power to rule on disputes between Muslims concerning inheritance (Law n° 2345/1920). Since 1990 there have been five muftis in Thrace: three officially appointed by the Greek State and two elected by the minority but not recognised by the Greek authorities. In theory, every Muslim citizen in Greece is able to choose freely between a mufti and a Greek court. The Greek Supreme Court acknowledged that for Greek Muslims inheritance of unencumbered property was strictly governed by ‘Islamic holy law’ and not the Greek Civil Code. It should be pointed out that muftis have officiated at a number of Muslim weddings by proxy, without the express consent of the brides, who are sometimes even underage girls. Law n° 1920/1991 extends muftis’ jurisdiction to cover maintenance, guardianship and trusteeship, and emancipation of minors.

United-Kingdom

The “Islamic Sharia Council”, based in London, it is an independent arbitration tribunal issuing private - law decisions and able to grant Islamic divorces. These pronounced divorces may be included within a civil procedure since the vote of a law on divorce in 2002. There are believed to be some thirty Sharia councils affiliated to local mosques.

The Russian Federation

In Russia, which has been an observer at the OIC since 2005, there are some 20 million Muslims, Most of whom live in the Northern Caucasus , particularly in Chechnya , Ingushetia , Dagestan and Tatarstan. In the former two, family and property matters are usually judged under Sharia law. Here, under the guise of ‘tradition’, women and girls are victims of violence and discriminatory practices such as early marriage, abduction for forced marriage, ‘honour’ killings, female genital mutilation and polygamy, despite the provisions of Russian federal law.

In the Chechen Republic the authorities continue to interfere in citizens’ private and social lives with their imposition of Islamic values. For example, the leaders of the Chechen Republic are in favour of incorporating religious education in the school curriculum, require women to dress according to Islamic rules and tolerate violent attacks on women whose dress is considered indecent. Such actions are clearly in breach of the rights enshrined in the Constitution of the Russian Federation and Article 11 of the Constitution of the Chechen Republic.

Turkey

Secularism, inherited from Atatürk, is a supreme constitutional principal in Turkey, but it has been quite attacked over the last years. A founder member of the Organisation of Islamic Cooperation, Muslim religious education is now compulsory in schools, even for non-Muslim minorities. The ban on the Islamic headscarf was lifted first in state universities, then in the civil service and subsequently in secondary schools and its wearing is spreading. The AKP government publicly develops a speech favourable to a conquering Islam, associating notably Turkish nationality with being part of Sunnite Islam.

At the end of this preliminary note, Albania and Azerbaijan, which signed the Cairo Declaration, do not appear to apply Sharia objectively on all or part of their territories. The latter has nevertheless adopted very restrictive laws on religious freedom, for example by preventing foreign priests from coming to direct orthodox parishes.

These cases of openings to a justice parallel to that of the State raise several problems. The first is that the acceptance of parallel court decisions is an acceptance of communitarianism. This calls into question the unity of justice in a territory as well as the equality of men before the law, since depending on the religion of the former, the applicable law would not be the same. The applicability of the ECHR in the signatory countries is questioned or at least restricted in certain areas. Areas of “different right” (sometimes called “no rights” zones) where the signatory State would have accepted more or less officially that its right be derogatory.

Finally, this raises the question of the acceptability of certain principles or values. The former PACE Rapporteur explained in her note that “The Court has ruled that Sharia law is in compatible with the European Convention on Human Rights, but obviously this does not mean that there is absolute incompatibility between the Convention and Islam”     

This distinction between Sharia and Islam to consider the former as incompatible with the ECHR contrary to the second is not obvious. At the beginning of her note, she states precisely that “Sharia law is understood as being ‘the path to be followed’, that is, the ‘law’ to be obeyed by every Muslim.” If Islam “ordained a law” (Surah 5, verse 48) to every Muslim and “assigned a path” (id.) is sharia, then sharia becomes something consubstantial to Islam. A Muslim may not be a good Muslim if he does not apply the Sharia. There would thus be an incompatibility between the ECHR and Islam, which is not surprising as the need to create human rights in Islam testifies.

 Translation by BMG

[1] CEDH, Refah Partisi (The Welfare Party) and others v. Turkey [GC], n° 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003, § 123.                                                                                                                            

[2] Committee on Legal Affairs and Human Rights, Compatibility of Sharia law with the European Convention on Human Rights: can States Parties to the Convention be signatories of the ‘Cairo Declaration’? Introductory Memorandum, AS/JUR (2016) 28, 7 October 2016, § 6. All following passages are excerpts from this note, which contains all sources, accessible here.