# 016
Between universality of human rights and cultural relativism: a third
path for the Iranian civil society?
The debate about universality of human rights and cultural relativism is recurrent.
It takes place in many fields, legal, anthropological or in social sciences. It is an academic
issue but also a challenge in the field for many countries. Actually it is problematic for all
countries around the world as even the United States and France are having difficulties in
enforcing universal human rights.1 However for some countries, it seems to be even more
difficult to put into effect universal human rights and easier to brandish the shield of
culture and religion.
When one speaks about the challenges met by a country to implement universal
human rights, it also refers to other issues such as democratization, secularism and
capitalism. For the liberal school of thought, human rights, democracy, secularism and
liberalism should always be intertwined. This combination exists mainly in countries that
are already democratic. In fact, in support for this principle, human rights and democracy
have become a part of their foreign policy and they criticize states trying to enforce
human rights without the benefit of a democratic backdrop.
It is impossible to deny that many countries struggle with these notions, especially
the principle of universality of human rights: The Islamic Republic of Iran is one of the
regimes having troubles dealing with universal human rights and other concepts such as
democracy and secularism. Human rights are one of the last barriers to Iran’s
1
The United States is internationally criticized for its practice of death penalty while France was
condemned by the European Court for Human Rights in case involving torture by police officials
(Selmouni
v.
France,
25803/94,
Eur.Ct
H.R.,
(July
28,
1999),
(available
at
www.echr.coe/int/Eng/Judgemnents.htm)
1
normalisation.2 The future of Iran will depend on how the country could solve the issue
of “universality” of human rights.
The principle of universality is a main principle according to which human rights
apply to everyone everywhere. The jurisdiction’s scope of human rights is the entire
world.3 There is no “choix à la carte” among fundamental rights. This principle appeared
with the 1948 Universal Declaration of Human Rights that aimed at giving a globalized
dimension to human rights. The goal in 1948 was to gather everybody around shared
values, after a bloody war, values that would transcend the differences whether political,
economic, social or cultural. It was a message of peace and a security for the future to
have a set of laws that everybody would agree on.
This principle is however discussed and criticized. Some states offer a more
regional or cultural reading of the UN documents laying down universal human rights.
Those countries have a different approach, a cultural relativist approach:4 According to
this theory, human rights should be interpreted in the light of culture, history, religion and
other factors. Iran is one of the countries actively advocating such an approach. The
Iranian ambassador to the United Nations declared in 1984:
The new political order was […] in full accordance and harmony with the deepest
moral and religious convictions of the people and therefore most representative of
the traditional, cultural, moral and religious beliefs of Iranian society. It
recognized no authority […] apart from Islamic law […] conventions,
declarations and resolutions or decisions of international organizations, which
were contrary to Islam, had no validity in the Islamic Republic of Iran […] the
Universal Declaration of Human Rights, which represented secular understanding
Hourcade Bernard, Vingt-cinq ans Après la Révolution Islamique: Le réveil de l’Iran, Le Monde
Diplomatique, (Paris), février 2004.
3
Rivero Jean, Les Libertés Publiques, Editions PUF (Paris), 1984, T1, pp 109.
4
The main cultural relativism movement’s leaders are Cuba, Iran, China and the “Asian set of values”
countries.
2
2
of the Judeo-Christian tradition, could not be implemented by Muslims and did
not accord with the system of values recognized by the Islamic Republic of Iran;
his country would therefore not hesitate to violate its provisions.5
There have been many changes in Iran since the eighties and the cultural relativist
movement, though it is the official Iranian policy, does not make unanimity. Iranian civil
society seems to have a different approach: rather than engaging itself in the debate on
cultural relativism versus universalism, it seems to have opted for pragmatism. This could
be the beginning of a new approach to human rights: a less theoretical approach, rooted in
the field. There is a trend gathering Reformists, young politicians and civil society that
wish to take up the human rights challenge and have a full enforcement of fundamental
values. Leaving the internal political struggle and the differences between the different
political movements aside, how could this segment of the society and the government
integrate human rights into Iranian law? The main issue for the different trends
composing civil society is to reconcile human rights with Iranian and Islamic values.
The first part of the paper will present the Iranian civil society: who composes
civil society?
The second part of the paper will analyze challenges Iran faces when it comes to
the enforcement of universal human rights: why is it so difficult to enforce universal
human rights in Iran? What is the Iranian legal specificity?
The third part will study the institutionalization of civil society and the attempts to
reform the system through human rights as to democratize it. This attempt took place
5
Said Rajaii Khorasani, Iranian ambassador to the United Nations, Address to the General Assembly,
United Nations General Assembly, Thirty-ninth Sessions, Third Committee, 65th meeting, , New York,
(December 7, 1984), A/C.3/39/SR.65.
3
from the top to the bottom, with the help of President Khatami’s theory of the Dialogue
among Civilizations.
Eventually the last part will analyze how civil society has began a reform from the
bottom to the top of the society, leaving behind the usual debates about universality of
human rights.
I.
Iranian Civil Society: Who’s Who?
The concept of civil society (jamé-yé madani) is not new in Iran: it was the
Iranian civil society that provoked and supported the constitutional revolution in 19051911 and it was again civil society that participated to the 1979 revolution. It is however
a new concept to the Islamic Republic of Iran to have citizens claiming their rights in and
from the streets. One can say the birth of the post-Islamist civil society dates from 1997,
when the then-candidate Muhammad Khatami institutionalized civil society.6
This sudden interest in Iranian civil society is explained by its impressive
strength: Iranian activists never falter despite the pressure. It is also a way to focus our
attention on the society instead of the state that has been the main actor for more than
twenty years.7
6
Muhammad Khatami, Candidate to the 1997 presidential election, Address at the University Imam
Sadegh, University Imam Sadegh, Iran, transcript available in in Payam-e Emrouz, N°18, OrdibeheshtKhordad 1376/ April May 1997, p. 13
7
Banuazizi Ali, Islamic State and Civil Society in Iran, The Moshe Dayan Institute for Middle Eastern and
African Studies, (2001), (available at http://www.dayan.org/mel/banuazizi.htm)
4
Iranian civil society is made up of different trends: women, intellectuals, students,
academics and journalists. All of them are under heavy fire and suffer repression from the
judiciary controlled by Conservatives.8
A. Women
Women’s role in the public sphere is defined by the Preamble of the 1979
constitution:9 women are the heart of the Islamic society, as a mother and a wife. They
are confined to this traditional role because women are seen as the cornerstones of the
Islamic Republic. Women are the mothers who will rise up the future Muslim citizens.
The burden of a good society relies on them.
According to many experts, the Iranian legal system and the society are
patriarchal.10 Iranian law has a tendency to give the priority to men in the public sphere
as much as in the private sphere. However Iranian women have reacted and have
undertaken a process of legal and social reforms with the support of the President
Khatami. According to M. Ladier-Fouladier, the Iranian society is becoming a
matriarchal society:11 women hold public positions (except the ones of judge, president of
the republic and mujtahid), go to universities and work.12
8
Van Engeland-Nourai Anisseh, Iran: Civil Society versus Judiciary, a Struggle for Human Rights, Cornell
Law
School
LL.M
working
Papers,
(April
2004),
Paper
3,
(available
at:
http://lsr.nellco.org/cgi/viewcontent.cgi?article=1012&context=cornell/lps)
9
1979 Constitution of Iran, (available at http://www.oefre.unibe.ch/law/icl/ir00000_.html)
10
Khosrokhavar Farhad & Chafiq Chahla, Femmes Sous le Voile Face à la Loi Islamique, Editions du
Félin, 1995.
11
Interview with Marie Ladier-Fouladi, Demographer and Researcher, CNRS Monde Iranien-Unité de
Recherche 7528, Paris, France (January 14, 2003).
12
According to an interpretation of the Constitution those three jobs are forbidden to women.
5
One of the female MP Marzieh Dastjerdi listed the issues Iranian women face. It
corresponds to 4 fields of action (legal, social, cultural and economic):13
-
Legal and judicial obstacles: obtaining the children custody or the dowry
back in case of a divorce;
-
Social pressure that influences the law: a woman cannot travel without
her husband unless she has his agreement;
-
Cultural barriers for women of the minorities;
-
Financial matters: what happens to a divorcee?
According to this statement, women are deeply affected by the islamization of the
laws. They suffer from violations of their rights laid down in international instruments.
This awareness gave rise to a movement that reached its climax during the campaign of
Muhammad Khatami. Iranian women realized they could change the current situation
because they were a political force. As Mehrangiz Kar said:
Even if we consider that women acquired rights under the Shah’s rule, we ignored
at that time that gender issues were of a political nature. Since the revolution, we
learned that matters related to women are relevant to the political field. Nowadays,
politics is not a closed field anymore. Nevertheless through their experiences,
women have also learned that their rights do not rely on politics only. That is why
women create non-governmental organizations that are independent from any
political influence. Women’s issues are directly linked to human rights. I am sure
that the more the Islamic actresses become aware of their situation and see the
legal deficiencies, the more new possibilities and opportunities are open to women
to change laws. Women will then become a powerful strength that any leader will
have to deal with and listen to their requests.14
13
Interview with Marzieh Vahid-Dastjerdi, MP in the Majles, Zanân magazine, Number 35, Tehran,
November 1997
14
Iranian Human Rights lawyer, Quoted in Kian-Thiébaut Azadeh, Les Femmes iraniennes entre Etat,
Islam et Famille, Editions Maisonneuve & Larose, Paris 2002, p. 276.
6
There are two ideas in this speech: First, there is the awareness that politics alone
will not help women changing their situations. There is also a need for deep legal
changes. The second point made by Mehrangiz Kar concerns lobbying: It is a discovery
for Iranian women that they can change law and politics by creating associations that
would lobby the establishment.15 They created a lot of associations and nongovernmental associations to help children and women. They palliate to the state.16
There are more or less 500 non-governmental organizations devoted to women’s’ rights
in Iran. Women play a major role in the civil society as they are going trough a social
struggle.17 M. Ebtekhar, a prominent female figure in Iran, said:
Women have made themselves an integral part of the reform process; there are now
14 female parliament members out of 290, working on health, foreign policy, social
development, industry and trade and culture. They have worked tirelessly, lobbying
hard to have their voices taken seriously by the government. What we've been
looking for is the development of women at grassroots level, the empowerment of
women and improvement in their status in family relationships.18
When the candidate Khatami gave them the opportunity to change their situation,
women seized it immediately and became the major strength and impetus of civil society.
They campaigned and voted for the future President. Many women played an important
role during the first Khatami administration and were elected in the reformist Majles.
However changes were provoked by women within civil society rather than by elected
women or women officials who were only presenting the results of the civil society’s
struggle to the Parliament. For example, women activism changed the law on children
Salam Iran, Iran: There are more or less 500 non governmental organizations for women: Women’s Non
Governmental Organizations in The Islamic Republic Of Iran,
(Available at http://www.salamiran.org/Women/Organisations/NGO.html)
16
Gheytanchi Elham, Chronology of Events Regarding Women Since the Revolution of 1979, Social
Research, Summer 2000
17
Z. Shaditalab, Zanân magazine, (Tehran), N°77, June 2001, p.4-5.
18
Maasoumeh Ebtekar, Beyond the Veil, Voices From the Developing World, Orbit issue 84, (available at
www.vso.org.uk/publications/orbit/84/article1.htm)
15
7
custody: According to the Iranian Civil Code largely inspired by Islamic law, the mother
has the children custody for the girl until the age of seven and for the boy until the age of
two.19 After that, the full custody is given to the father or the grand-father. In 1997, a girl
was given to the custody of her father who had remarried.20 The mother-in-law and the
father were violent with the child. The mother went to complain to the police and the
judge but nobody changed the decision. The child died in the hands of her new family. It
created an upsurge in Iran: women and human rights activists demonstrated, feminist
magazines wrote pamphlets and women elected presented a bill to change the law. It had
an impact as the law was amended: The Courts would now look at the facts and take the
best interests of the child at stake when considering guardianship. Later, in December
2003, women’s mobilizations and activism paid off again when the Majles declared that
mothers could keep boys until the age of seven.21
B. Intellectuals and Academics
Most of Iranian intellectuals are post-Islamists intellectuals: they participated to the
revolution and had an active role later, in the republic. Soon, they were disillusioned.22
They didn’t bluntly reject the values they had supported; instead they began to protest
loudly. The best example is Abdolkarim Soroush: he worked for the system for a while
then realized he disagreed with what the revolution had become. In 1984, Abolkarim
19
Article 1169, Qanun-e Madani-i Jumhuri-i Islami-i: Inglisi-Farsi va Farsi-Inglisi (Civil Code of the
Islamic Republic of Iran: English-Persian and Persian-English), Daneshvar, Tehran, Iran, 1380/2001.
20
The name of the little girl was Arian Golshani. There are different versions of her death.
21
Press Release, Women In Iran Association, Mothers are Awarded Custody of Children Under Seven,
(December 2003), (available at http://www.womeniniran.org/english.htm)
22
Khosrokhavar Fahrad & Roy Olivier, Iran : Comment sortir d’une révolution religieuse ?, Paris, Seuil,
1999, pp.224-225.
8
Soroush created a journal Kayhan-e Farhangi in which he translated Western literature.
Between 1988 and 1990, he published in the journal articles criticising the regime.23 The
journal was closed down because of this series of articles.
The situation changed in 1997 with the election of Muhammad Khatami: freedom of
speech flourished. Thematic groups, associations and newspapers used that freedom to a
large extend. There were so many publications that the newsstands in the streets would be
overflowed.24 Intellectuals took a large part in that movement by publishing articles in the
magazines. Some of the intellectuals published magazines are clerics fighting for the
enforcement of human rights in Iran. The most famous are Ayatollah Yusef Sane’i who
says Islam should be adapted to the popular will. He was among the first to acknowledge
the importance of civil society’s role.25 More recently he spoke freely about sexual
education in Iran, in connection to prostitution.26 Mojtahed Shabestari tries to set up a
new approach to family law that would be more respectful of women’s rights.
The situation changed when Conservatives realized the power magazines and
newspapers were gaining and that Intellectuals had a very public scene to express their
opinions.
Most of the intellectuals used to be university professors but were fired. Some are
still teaching. Their books are in general difficult to find on the market. Cases that drawn
Soroush Abdolkarim, Qadb va Bast-e Ti’urik-e Shari’a (The Rhetorical Contraction and Expansion off
Religion), Series of Articles, Kayhan-e Farhangi, Tehran, (1988-1990).
24
Samii A.W., Sisyphys ’ Newsstand: the Iranian Press under Khatami, Middle East Review for
International Affairs, volume 5, No 3, (September 2003).
25
Press Release, Further Disquiet in Religious Community, Iran Report, Volume 2, Number 24, (June 14,
1999), (available at http://www.globalsecurity.org/wmd/library/news/iran/1999/24-140699.html)
26
Press release, IRNA, January 25, 2004
23
9
attention to intellectuals were the murders in 1998 and the arrest of Professor Aghajari.27
Professor H. Aghajari declared in a speech before a small group of students at the Bu AliSina University in Hamadan “Marx said that religion is the opiate of the masses. But he
didn’t go far enough. It’s also the opiate of governments”. He also called for a “religious
reformation” of Shia Islam and criticized Shias readiness to emulate top ayatollahs like
“monkeys”.28 He was sentenced to death, and then the punishment was mollified.
Universities in Iran play a major role in the civil society movement. They are
laboratory of ideas.29 The debates are continuous. Though the government controls
universities, they are place for cultural and intellectuals exchanges. Iranian universities
have found their place in the civil society movement by producing the intellectual tools it
can use. It is where the ideas and slogans of the civil society are prepared.
Intellectuals play a vital role in strengthening the civil society as they use and
abuse freedom of speech.30
C. Students
Iranians students have always played an important role in the history of Iran:31
The most famous case is the hostage crisis at the US embassy.
Press Release, Reporters sans Frontières “Iran: Call for and end to Impunity for Murderers and those
behind Serial killings of Intellectuals and Journalists”, (November 21, 2003),
(available at http://www.rsf.org/article.php3?id_article=8580)
28
Hashem Aghajari, Professor at Tarbiat Modarres University in Tehran , Address to Students, Bu Ali-Sina
University in Hamadan, (2002), (Transcript available at www.hrw.org/press/2002/11/iranacademic.htm)
29
Maurice de Capithorne, Rapporteur for the Islamic Republic of Iran, United Nations, Annual State
Report: Iran, 2000, (available at www.unhcr.org)
30
Ramin Jahanbegloo, The Role of Intellectuals, Journal of Democracy, October 2000, volume 11, Number
4.
27
10
After the revolution and in the eighties, students were used by Conservatives to
control campuses. They were sent to classes to monitor Professors. However the “student
weapon” changed hands.32 Conservatives lost the monopole they had in the universities.
Student associations turned to Khatami as he seduced them. The new candidate and
future president gave them hope for the future (jobs, freedom of speech and rule of law).
Iranian student actions are often demonstrations in the streets. The most important
demonstrations took place in 1999 and in 2003. As the reforms were slow to come,
students grew impatient. They divorced from the reformist movement and became an
independent social force aware of its weight. Their requests and slogans became more
harsh and less in connection with the Kathami’s policy.33 The symbol of their
autonomization dates from 2003: When Professor Aghajari was sentenced to death and
the pollsters arrested, the students took up their causes in the streets.34 The newspaper
Yas-e now encouraged the demonstrations.35 Other newspapers supported the students.
250 university teachers and writers wrote a statement supporting the students. Thanks to
the support from other segments of the civil society, the students’ demonstrations had
more effect. Students targeted the reformist president “Khatami, Khatami, Honesty,
31
Tohidi Nayereh, Student Movement: the Harbinger of New Era in Iran, ISIM Newsletter, Leiden
Universiteit, Number 4, December 1999, p.18.
32
Tohidi Nayereh, Student Movement: the Harbinger of New Era in Iran, ISIM Newsletter, Leiden
Universiteit, Number 4, December 1999, p.18.
33
Interview by Azadeh Kian Thiebaut of Iranian Students in : La Révolution a l’Heure des Réformes, Le
Monde Diplomatique (Paris), Janvier 1998.
34
The head of Iran's state news agency, IRNA, was charged in court on September 2003 in connection with
the publication of a poll. According to the poll, 74% Iranians were in favor of the resumption of the
dialogue with the United States. The pollsters were arrested. and are now behind the bars. The results of the
poll are presented in: Dinmore Guy, Human Rights under the Spotlight, Iran Reporter, January 1, 2002,
(transcript available at www.iranreporter.com); Saeed Razavi-Faqih and Ian Urbina, The Fight for Iran’s
democratic ideals, The New York Times, December 10, 2002.
35
Yas-e now, Tehran, December 2003, (available at www.yas-e-now.com), reformist newspaper that has
been closed down in 2004.
11
Honesty!”, “Khatami resign”, “the clerical regime is nearing its end”and “Enough
slogans! Why no action?36”
D. The Youth
More than half of the Iranian population is less than 15 years old. It is a
homogenous social group. Those young people are the children of the revolution: it
means they know no other system. In the era of information, they are the first users of
Internet to have an opening to the world. This fulfils their dreams and hope for changes.
They can find online translation of books, movies and music.
They play a major role in the awakening of the civil society and the quest for new
values. Influence by Western images and constrained by a society made up of taboos and
forbidden fruits, they are also an explosive mix. They are fascinated by the Western
world and totally ignore the dangers and risks of the western society. The ideal of an
Iranian youth islamicized and bearing the cultural authenticity and the religious values is
gone: The Iranian youth rejects political or moral references.37
In 1997, young above the age of 15 were granted the right to vote. As they
represent 50 percent of the voters, they are an important political target. They considered
Muhammad Khatami as the champion of their freedoms. In 1997, they were mobilized
and took up the cause of the hero, only to be disappointed later by the lack of reforms.
36
Still on the streets, The Economist, 16 June 2003.
Khosrokhavar Farhad & Roy Olivier, Iran : Comment Sortir d’une Révolution Religieuse ? , Paris, Seuil,
1999, pp.168.
37
12
The Iranian youth identified itself with the civil society’s claims. They added their
own claims like individualism. The youth rebellion usually takes place in an individual
framework but as it is impossible in Iran, they chose to express themselves on the
political scene.
E. Journalists
Before the election of M. Khatami and by regional standards, freedom of speech was
relatively respected. There were some critics but usually the government controlled the
Medias in a correct manner.38 Human Rights Watch called that an “illusion of
unrestricted discourse.39” The situation improved under President Khatami and journalists
were among the first to benefit from the new freedoms. There were so many daily and
monthly publications that the Conservatives grew uneasy, feeling threatened, and began
to close them down under different reasons, using the judiciary to do the task.40
Ayatollah Khameiny told worshippers, “I suspect around 20 publications are acting as
the enemy's “fifth column” We should do something about it.41” After that speech 43
publications have been closed.
Between 2000 and 2002, 83 reformist publications have been shut down by the
conservative judiciary. Internet cafes are monitored. Television is censored. On Dec. 25,
2001, Mirdamadi had to appear in court to answer to 300 complaints against his
Menashri David, Revolution at the Crossroads: Iran’s domestic politics and regional ambitions, The
Washington Institute for Near East Policy, Policy Paper 43, (1997), 64
39
Human Rights Watch, Report, Guardians of Thought: Limits of Freedom of Expression in Iran, New
York, Human rights Watch, 1993, (available at www.hrw.org)
40
Van Engeland-Nourai Anisseh, Iran: Civil Society versus Judiciary, a Struggle for Human Rights,
Cornell Law School LL.M working Papers, (April 2004), Paper 3, (available at:
http://lsr.nellco.org/cgi/viewcontent.cgi?article=1012&context=cornell/lps)
41
Ayatollah Khameiny, Friday prayers ceremony, Tehran, April 2000, in Mason Whit, Iran’s Simmering
Discontent, World Policy Journal, volume XVIX, No 1, (spring 2002), (available at
www.worldpolicy.org/journal/articles/wpj02-1/mason.pdf )
38
13
newspapers.42
As most reformist papers have been shut down, journalists decided to use Internet:
The web log is now an instrument widely used by journalists. There is a real cyberrevolution taking place in Iran. Consequently, the judiciary has declared a real war to web
journalists.43 According to Human Rights watch, the aim of the government is to cripple
the country’s growing network of independent nongovernmental organizations. It
denounced an internet crackdown.44 The first arrests regarding the Internet website
occurred in April 2003:45 Sina Mottalebi was the first journalist to be arrested and
released several days later after a huge petition that circulated online.
II.
Challenges to enforce universal human rights in Iran
Why is it so difficult to enforce universal human rights in Iran? What is the Iranian
legal specificity?
Iran faces many challenges when it comes to universal human rights. The first one is
to know which human rights we are referring to, universal human rights or the Islamic
Shahram Sokooti, Iran’s Reformist Press, Tehran, Iran, 22 January 2002, (available at
www.WorldPressReview.org)
43
Press Release, Human Rights Watch, Iran: Web Writers Purge Underway, Arrests Designed to Silence
NGOs
Activists,
New
York,
(November
9,
2004),
(available
at
http://www.hrw.org/english/docs/2004/11/08/iran9631.htm
44
Press, Release, Human Rights Watch, Iran: Journalist Detained in Internet Crackdown, New York,
(October 15, 2004), (available at www.hrw.org, visit Middle East News)
45
Sina Motallebi was imprisoned because his site rooznegar. (Site available at www.rooznegar.com)
42
14
cultural and religious interpretation of human rights? The second deals with the threat of
the universality of human rights and its companions, secularism and democracy.
A. Islamic Human Rights or Universal Human Rights?
The first challenge deals with the type of human rights that are pursued: When
President Khatami or civil society speaks about human rights, do they refer to:
international human rights as defined in international texts or Islamic human rights?
There are on the one hand the texts laid down by the United Nations; there is on the other
hand the Islamic interpretation of human rights according to which rights are granted by
God, along with duties.
1- Islamic Human Rights: cultural relativism
After the 1979 revolution, the legal system was Iranized and Islamized. The same was
done with human rights. Ayatollah R. Khomeyni refused to speak about the Universal
Declaration of Human Rights and soon invoked an Islamic version of fundamental
rights.46 He denounced universal human rights as the masses’ opium.47
According to Iranian supporters of cultural relativism, human rights are a law created
by men; consequently and according to Islamic standards, it is not perfect. There is an
opposition between Law based on God’s words, a superior say, perfect and infallible and
46
Ayotallah Khomeyni, Islam and Revolution: writings and declaration of Imam Khomeyni, translated and
annotated by Hamid Algar, Berkeley, Mizan press, 1981.
47
Ayatollah Khomeyni, Abstracts from the February 19, 1978 speech, , « In commemoration of the first
martyrs of the revolution », in Islam and Revolution: writings and declaration of Imam Khomeyni,
translated and annotated by Hamid Algar, Editions Mizar Press, Contemporary Islamic Thought, Persian
Series, 1981, pp 213-215.
15
laws created by men, imperfect creatures. The 1981 Universal Islamic Declaration on
Human Rights opposes in the foreword divine rights and men’s laws, the opposition
between Law and laws:48 “Human rights in Islam are firmly rooted in the belief that God,
and God alone, is the Law Giver and the Source of all human rights. Due to their Divine
origin, no ruler, government, assembly or authority can curtail or violate in any way the
human rights conferred by God, nor can they be surrendered.49”
The aim of the Iranian government in advocating cultural relativism is to protect
the national and the Islamic identities from any cultural or religious Western influences.
The values of the Islamic Republic of Iran are said to be different from the values carried
by universal human rights, denounced as being a Judeo-Christian philosophy.
In 1990, Iran participated actively to the drafting of the Cairo Declaration on
Human Rights in Islam.50
The text advocating another view of human rights was
presented in 1993 at the Vienna Conference. During that conference Iran, Iraq and Saudi
Arabia insisted on the necessity of reviewing universal standards.51 When the Islamic
48
Iran is a party to the 1981 Universal Islamic Declaration on Human Rights.
Universal Islamic Declaration on Human Rights, (September 19, 1981),
(available at http://www.alhewar.com/ISLAMDECL.html)
50
Cairo Declaration on Human Rights in Islam, Cairo, Egypt, (August 5, 1990), (available at
www.humanrights.harvard.edu/ documents/regionaldocs/cairo_dec.htm)
51
In June 1993, there was a world conference on human rights held in Vienna, Austria. Among other
issues, the matter of cultural relativism was approached. It was said that human rights were universal and
that no cultural relativist interpretation could or should be considered. At the end of the conference the
representatives of 171 countries adopted a program of action. The aim of the conference and of the Plan of
Action is to strengthen Human Rights around the world. The program of action is available at find at:
http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument.
49
16
Conference met in Tehran in 1997, Iranian officials seized the opportunity to remind the
world of the necessity to change the 1948 Declaration.52
There is of course a problem of legitimacy on both sides: How could the States
members of the United Nations grant legitimacy to a regional human rights text or an
interpretation that relies on a religious credo? How could Muslim countries acknowledge
the legitimacy of the UN human rights texts if they only consider themselves linked by
God’s words? How could we build a bridge between those two conceptions of rights?
A.E Mayer says a lot can be learned about Iran advocating cultural relativism:
“Perhaps the most vital lessons are about the consequences of attempting a so-called
cultural revolution to purge a nation of alien influences and in the process rejecting
"Western" human rights, replacing these by standards supposedly derived from
authentic/indigenous cultural models.53”
2- The real issue: Iranian law caught between tradition and modernity
Whether one sympathizes or rejects cultural relativism leads nowhere. We have to
look at the root of the problem, before even speaking about the conciliation between the
Iranian and Islamic identity and universal human rights: the Iranian legal system. Iranian
laws are caught between tradition and modernity.
52
The Organization of the Islamic Conference met in Tehran in April 1997. During this eighth conference,
a declaration was drafted, the Tehran Declaration. This Declaration is also en example of a cultural
relativist approach.
53
Mayer Ann Elizabeth, The Universality of Human Rights: Lessons from the Islamic Republic of Iran,
Social Research, Summer 2000
17
When the Islamic Republic of Iran was established, Shi’i Islamic law became the
main legal source. It is a legal corpus that has not evolved much and has to be enforced in
a modern society. There is an inherent paradox as the Iranian society evolves fast,
especially since the election of Muhammad Khatami in 1997, while the legal corpus is
quite rigid. As a result, Iranian laws end up being torn apart between the laws as written,
reflecting tradition, and the laws as applied, reflecting modernity.
A good example can be found in the Iranian law on the passport and the limits set on
travel: According to a law dated from 1972, Article 18 (3), a woman does not have the
right to travel without permission of her husband. On the other hand and according to the
same law a woman has her passport at the age of 18. Iranian women have passport but
cannot make use of it unless the husband agrees to it. This is paradoxical. Women also
have the right to study and work. So a woman who wishes to go abroad to speak at a
conference about the results of her researches needs to ask permission first.
One of the obstacles to the enforcement of universal Human Rights in Iran is not only
cultural relativism but its root, the inherent paradox to Iranian law, product of the Islamic
republic: there is on the one hand a law that is based on Islamic law and on the other hand
a constrained society engendered by the republic that wishes for more freedom and
pressurizes the legal system to gain them.
B. Universality of Human Rights as a threat
Universality and globalization have always been considered as a threat by Iranian
leaders: it carries the risk of blurring Iranian culture and Islamic heritage as to favor
18
Western culture. According to A.E Mayer, the idea behind cultural relativism is the
maintenance of the regime: “The pseudo-traditional scheme of placing the country under
the rule of the leading Islamic jurist was advertised as the way to guarantee adherence to
Islamic law. This, in turn, was identified with upholding Iran's own values and culture.54”
Iran faces the necessity of implementing human rights in concert with the survival of
the Islamic regime. Therefore, Iranian scholars and officials have created an Iranian
specificity of human rights:55 According to them, human rights exist in Islam and this
version should prevail as it respects Iranian and Islamic values.56 Iranian scholars usually
start by a critic of the universal system, unable to reflect the universality of values
existing around the world: For example, Dr Hossein Mehrpoor was the Iranian
government delegate to speak about human rights at the United Nations. He declared:
“The Human Rights commission and the other UN organs have no respect for religious
values; we can even say it is the place where, under various excuses, there is a kind of
struggle against beliefs and religious values. They do not consider moral precepts
seriously.57’’
Another important phase for Iranian scholars is to explain how the Universal
Declaration and Iranian law differ in their relationship to religion: while the 1948
54
Mayer Ann Elizabeth, The Universality of Human Rights: Lessons from the Islamic Republic of Iran,
Social Research, Summer 2000.
55
Dr Husayn Salimi et Dr Homeyra (ed), Islamic Views on Human Rights: viewpoints of Iranian scholars,
Moshirzadeh, New Dehli, Kanishka Publishers, 2003.
56
Seyyed Hossein Nasr, « The concept and Reality of Freedom in Islam and Islamic Civilizations », p.96
in ed A.S Rosenbaum, The philosophy of Human Rights : International Perspectives, Westport, Greenwood
Press, 1980, pp. 95-101
57
Mehrpur Hossein, Hoquq-e basher dar asnad-e binalmellali and muzeh-e jomhurri-ye islami-ye Iran
(Human Rights in International instruments and Iran’s position), Tehran, 1995, pp. 37-38
19
Declaration is secular, Iranian human rights are deeply rooted in religion. The human
being has duties towards God. Seyyed Hossein Nasr explains that human rights are
granted by Shari’a only after the fulfillment of those divine obligations.58
The next step is to analyze Islamic law and the Quran as to find human rights:
Ayatollah Ustad Muhammed Taqi Jafai explains what the right to life is in Islam: life is a
blessing and therefore the right to life is ultimate. However, this right can be limited by
God, and by God only. The Shari’a prescribes death penalties for certain crimes call had
(apostasy and adultery are among the crimes).59 Consequently it is all right to sentence to
death penalty if the crime committed is one described in the Quran as a had, just because
God set up that punishment. There are many other rights set up in the 1948 Universal
Declaration that are found in Islamic law. The only difference is the respect for God’s
laws as a limit to fundamental rights. That is the Iranian specificity, illustrated by the
1979 constitution: it contains the peoples’ rights in Chapter 3. The rights granted are very
much alike to the Universal Declaration. However each right is limited by the respect of
Islamic laws.
Scholars also re-appropriate human rights and claim Islam invented them: Laurent
Chabry said ‘‘It is in the Quran that one will find the most complete declaration of human
58
Seyyed Hossein Nasr, « The concept and Reality of Freedom in Islam and Islamic Civilizations », p.96
in ed A.S Rosenbaum, The philosophy of Human Rights : International Perspectives, Westport, Greenwood
Press, 1980, pp. 95-101
59
Ayatollah Ustad Muhammed Taqi Jafai, Universal Human Rights : from the viewpoints of Islam and the
West, Malaha ye tabiqi nazam hoquq-e djahani e bchar az didgah-e Eslam va qarb, Islamic Culture and
Relations Organization, ALHODA International Publisher, 1999, page 3
20
rights since the apparition of humanity, with the exception of the Athenian
democracy.60’’
Does that mean that in the name of the preservation of culture and religion, Islamic
exceptionalism should prevail over international human rights? How could a world
divided by cultural interpretations of human rights effectively enforce fundamental
freedoms? What we are talking about is more than a mere clash of civilizations; it would
be a clash of civilizations if the Iranian and the Islamic systems were simply rejecting
human rights as non-existent. Iranian clerics and scholars simply believe it is not
necessary to refer to the Universal Declaration of Human Rights as Islam contains human
rights.61
However the majority of clerics, civil society and the population do not believe
human rights and identity do exclude each other. As President Khatami said, the two
identities, the Iranian and the universal ones, should find a way to dialogue.62 The
survival of two systems is at stake. This debate is essential as the very nature and impact
of human rights relies on the principle of universality.
Professor Abdullahi An Naim provides an explanation the challenge: there is one
the one hand, religious systems that would not accept a secular set of laws that excludes
Bani Sadr Abdol Hassan, Le Coran et les Droits de l’Homme, Paris, Maisonneuve et Larose, 1989, p. 11
Bani Sadr Abdol Hassan, Le Coran et les Droits de l’Homme, Paris, Maisonneuve et Larose, 1989, p. 11
AND
Mehrpur Hossein, Hoquq-e basher dar asnad-e binalmellali and muzeh-e jomhurri-ye islami-ye Iran
(Human Rights in international texts and the Islamic republic of Iran opinion), Tehran, 1995, pp. 37-38
62
President Muhammad Khatami, Speech at the United Nations General Assembly: Dialogue among
Civilizations, 21 September 1998, (available at http://www.dialoguecentre.org/documents.html).President
Khatami presented the concept in 1998 and the UN declared 2001 to be the year of the UN Dialogue among
Civilizations.
60
61
21
religion. He believes that for universality of human rights to be widely accepted, the
human rights discourse should integrate religion:
The apparent avoidance of religious perspectives in the language of the UDHR
can diminish the moral force of the purported universality of human rights. But the
obvious reason for this avoidance is the exclusive nature of religious traditions. Since
religion divides rather than unite human beings, the argument goes, it is better to avoid it
altogether in order to find common ground for the protection of human rights among all
religious believers and non-believers alike[…] The more one is a "true believer" the less
likely will he/she accept non-believers as moral equals. Conversely, the more religious
perspectives are excluded from human rights discourse, the less likely are believers to
accept the universality of human rights.63
He doesn’t advocate in favor the integration into the human rights discourse of a
stiff religion. He speaks of a religion that has been going through internal
transformations. The transformation should be done as to render religion more tolerant. It
is the only way universal human rights and Iranian human rights could begin a dialogue,
without the Universal Declaration of Human Rights being perceived as a threat.
C. The challenges of secularism and democracy
The Islamic Republic of Iran has to reconcile a law based on religion with secular
human rights. The principle of secularism of human rights has been established since the
century of Enlightenments: Human beings have rights because they are human beings and
those rights come from their very nature and not from God. International human rights
standards are separated from religious concerns. Does this mean that human rights can
only be enforced in a secular environment?
63
An Naim Abdullahi, The Synergy and Inter-dependence of Human Rights, Religion and Secularism,
Forum for inter-cultural philosophy (3), 2001, 1-43, (available at http://them.polylog.org/3/faa-en.htm)
22
A part of the Iranian civil society thinks secularism might be the answer and that
reforms could only take place in a regime that dissociates religion from politics:
Secularism and democracy are like two sides of a brain. In order to have a fully
functional body, both sides of the brain with their specific responsibilities are needed in
order to achieve the desired being. Therefore, those who comically advocate baseless
concepts such as the Islamic Democracy can never deliver the true freedom our people
are fighting for when divine rules and restrictions would oversee every aspects of their
daily life.64
Conservatives are worried about this secular trend in the society. The episode of
Ayatollah Taheri resignation demonstrates it: On July 8, 2002, the Ispahan prayer leader,
Ayatollah Jalululdin Taheri resigned from office. He published his resignation letter in
the reformist newspaper Nowrooz in which he criticized the regime and “deception,
unemployment, inflation…” among many other issues in Iran.65 The Guide Khameyni
answered him on the radio:
[Taheri] complained about several conditions of the country […] These topics are
true, and I have often publicly and privately warned … about them […] Each of
us in our speeches must exercise more care and be more precise and not threaten
the unity and inspiration of this big and brave nation […] All that America lacks
to carry out its threats against Iran is the existence of a secular popular base.66
According to the Guide, Iran faces problems; but it should not be exposed in a
broad public light as dissent among the rulers might give rise to a secular popular
movement that would undermine the republic and the nation. It is rare to hear such a
direct address about secularism.
64
Bahrami Ardavan, Secularism and Iran, Persian Journal, (July 6, 2004),
(available at http://www.iranian.ws/iran_news/publish/article_2845.shtml)
65
Nowrooz, Tehran, 8 July 2002, (available at www.nowrooz.net)
66
Ayatollah Khameyni, Guide of the Islamic Republic of Iran, Answer to Ayatollah Taheri, Address on the
radio, Tehran, (July 2002), (transcript available at news.bbc.co.uk/hi/english/world/middle_east)
23
A solution could be a secularism “achieved via reinterpretations of Islam without
renouncing the ties between state and religion.67” It is the wish of many Iranians and it
reflects the real meaning of secularism that is not the separation of the State and the
Church, but rather the loss of control for the Church on public affairs.68
There is another issue linked to the one of secular human rights: According to the
liberal school, human rights, democracy and liberalism should always be intertwined.
Iran is confronted to the dilemma of coupling democracy and human rights against a nondemocratic backdrop: Since his election in 1997, President Khatami tries to democratize
the regime. He wishes to reform the system within the boundaries of the velayat-e faqiq:
he wants to enforce human rights in the framework of the Islamic republic.
This effort takes diverse aspects, including the use of human rights to democratize the
country. Instead of having a democratic constitution and a democratic regime able to
enforce human rights, the reformist movement led by Khatami and civil society are using
human rights to establish a democracy. This process of democratization could lead to two
different outcomes: Iran could either become a secular and democratic regime or Iran
could become an Islamic democracy. According to Muhammad Khatami, there is a way
to implement human rights in concert with the survival of the Islamic Republic of Iran.
67
Keddie Nikkie, Secularism and its Discontentment, Deadelus journal, volume 132, issue 3, pp 14-30.
Etchegoin Marie-France et Lenoir Frederic, Code Da Vinci: l’Enquête, Paris, Editions Robert Laffont,
2004
68
24
III.
Democratization and the human rights reform in Iran
The human rights situation in Iran has improved since the election of President
Khatami in 1997. The election of Muhammad Khatami was the choice of the Iranian
people and a sign of a popular demand for changes. With Khatami, human rights became
a key and public issue. For example the potential adhesion of Iran to two international
treaties, the Convention against Torture and the Convention on the Elimination of
Discrimination against Women, was largely debated in the Majles and also within the
society thanks to the coverage made by newspapers and magazines.69
Muhammad Khatami wanted to change the system within the constitutional
framework and the velayat-e faqiq, and that included a human rights reform.70 Human
rights were at the core of his short political campaign.71 He relied heavily on the Iranian
civil society. His candidacy motivated the different trends of the civil society. In a public
meeting, Khatami declared: “Today we are gathered here so speak about civil society,
freedom, justice, the presence of an enthusiastic young generation playing a role on the
social scene, the building of a the society, and we owe all this to the blood of the martyrs
and their abnegations.72” Once elected, he promised the civil society would play a role in
the Iranian politics. The civil society was then institutionalized and became a new
political force.
69
The Islamic Republic of Iran is a party to four of the six UN conventions: it still has to sign and ratify the
Convention Against torture and the Convention on the Elimination of Discrimination against Women.
70
The Velayat-e faqiq is the key of the Islamic Republic system. According to that theory, the power lies in
the hands of the jurisconsults, the Ulemas who have the knowledge of Islamic Law.
71
He campaigned for only three months.
72
President Muhamad Khatami, Address for the First Anniversary of his Election, Tehran University, (2
Khordâd 1376), (transcript available at http://www.president.ir/)
25
Empowered, the civil society took up the human rights challenge along with the
Reformists. It started its collaboration with the President for an effort of democratization
through human rights. President Khatami was very aware of the expectations of civil
society as he declared:
Today law and respect of the law are a value for the country and we must cooperate
to enforce it. Freedom needs a framework and in the constitutional framework, liberty
and law complete each other. Law without freedom is a unilateral domination of
society; and freedom without law is chaos. Civil society as we have seen it is a
society where freedom exists under the protection of the law, a law does do
acknowledge freedom (…) this is who a reciprocal link is created between the people
and the state. The state is entitled to request from its citizens to act legally and the
people are entitled to request freedom against the state.73
According to President Khatami civil society is the only source of legitimate
power. This is a revolutionary idea in itself.74 However there are many obstacles on the
path to democratization through human rights. Consequently, President Khatami offered
along a theory to dialogue on human rights: the Dialogue among Civilizations. Some
theories try to transcend the many debates on the reconciliation between Islam and
human rights, and on the opposition between universality of human rights and cultural
relativism. The theory of the Dialogue among Civilizations is one of them.
His theory is respectful of the Iranian identity and universality of human rights. It
creates a hope, a possibility for a dialogue and perhaps provides a solution to the socalled opposition between Islam and human rights: Iran might be able to address the
73
President Muhammad Khatami, Address for the First Anniversary of his Election, Tehran University, (2
Khordâd 1376), (transcript available at http://www.president.ir/)
74
Kian-Thiébaut Azadeh, La révolution iranienne à l’heure des réformes, Le Monde Diplomatique, Paris,
janvier 1998.
26
human rights challenge without risking losing its soul. Iran would therefore be ready to
face a modern globalize world and enter the 21st century, reconciled with the world.
The theory of the Dialogue among Civilizations was presented by President Khatami
to the United Nations in 1998.75 According to him, there are indeed several different
civilizations, as Samuel Huntingdon underlined.76 However he disagrees with the notion
of clash and thinks instead that civilizations should establish a dialogue on the values
they share and they are committed to. This global dialogue would rest only on the shared
values, the rest of the local culture being un-shattered by international requirements.
President Khatami considers as international requirements only the values that all the
civilizations have agreed on. He wishes to promote:
A global culture [that] cannot and ought not to overlook characteristics
and requirements of native local cultures with the aim of imposing itself
upon them. Cultures and civilizations that have naturally evolved among
various nations in the course of history are constituted from elements that
have gradually adapted to collective souls and to historical and traditional
characteristics [...] In spite of all constitutive plurality and diversity, a
unique and harmonious form can be abstracted from the collection77.
According to Khatami, the initiative is rooted in Islamic teachings: Islam is a
religion of peace, able to answer the dilemmas of modern international relations and
Human Rights where the Western World only offered the Huntington’s “Clash of
Civilizations” or the Fukyama’s “End of the World”. President Khatami agrees that his
75
President Muhammad Khatami, Address at the United Nations General Assembly: Dialogue among
Civilizations, United Nations General Assembly, New York, (21 September 1998), (available at
http://www.dialoguecentre.org/documents.html).
76
Huntington Samuel, The clash of civilizations and the remaking of world order, Touchstone edition,
1997.
77
President Muhammad Khatami, Address at the United Nations General Assembly: Dialogue among
Civilizations, United Nations General Assembly, New York, (21 September 1998), (available at
http://www.dialoguecentre.org/documents.html).
27
theory might create doubts but he wants to offer another solution than the clash of
civilizations and the never-ending debates about the conciliation or reconciliation of
human rights and Islam: The Iranian foreign minister spokesman, Hamid Reza Asefi,
declared the Dialogue among Civilizations aimed at “cementing the global fragmentation
[…] and create a feasible paradigm for the new world order. 78” The Dialogue among
Civilizations also creates a network of nations that celebrate what they have in common.
It set “a unique precedent for the "re-enchanting" of the United Nations, which had
previously ejected religion and spirituality outside its policy domains, a trend somewhat
reversed by the recent religious summit at the UN.79”
The Dialogue among Civilizations had a real impact from an international point of
view. The United Nations declared 2001 to be the year of the Dialogue among
Civilizations.
This theory has its limits and flaws: even though it encourages dialogue, it is a
dialogue from culture to culture and not a dialogue based on a shared set of values. So the
principle of universality of human rights is not strictly respected. Instead of one world it
leads to a fragmented world, talking different human rights language. It does promote
respect and tolerance and diversity but at the expenses of a unique universal human rights
perception. However as Mary Robinson said during a seminar on the universality of
78
Press Release, Asefi: President Khatami to attend UN General Assembly on Dialogue of Civilizations,
Payvand News, (November 11, 2001), (available at http://www.payvand.com/news/01/nov/1006.html)
79
Afrasiabi Kaveh, Khatami and the Emancipatory Project of Dialogue of Civilization: A Motivational
Analysis, Payvand News, (December 1, 2000),
(available at http://www.payvand.com/news/00/dec/1003.html)
28
human rights gathering among others experts of Islamic law, that it is perhaps a step
towards a dialogue:80
Our discussions have not only referred to Islam. They have also brought out a
central challenge to the human community as a whole and to those interested in
respect for human rights in particular; how big have we made the Arc of the
Universal Declaration? Is it wide enough to encompass all humanity, or is it
reserved for a privileged few? I do not wish for a moment to minimize the serious
situation of human rights in many countries or the need to act, as many of you
have emphasized. But I found that we have been looking forward during this
seminar with each seeking how, in her or his own way, the challenge of protecting
human rights today can be met. In organizing this seminar I wanted to show that
the United Nations was open for dialogue and ready to listen to those who seek
better protection for human rights. This seminar has been part of a process which
has opened a channel of communication. That channel should stay open and I
believe we should now reflect on how best to carry it forward. As I explained
when I intervened, this seminar is complete in itself, in the sense that it has been
based on an agreed procedure. It has been my intention to publish the proceedings
of this seminar. I welcome the encouragement from you as experts that the
proceedings should be published, and date of 10 December of this year would be
a symbolic one.
President Khatami’s solution is perhaps not respectful of universality as such but
it is a step forward in the discussion.
Locally the theory had a different effect: According to Khatami’s theory, human
rights should be considered as the values the world shares and the cultural differences
should be left to each country to navigate. As the differences between the states are left to
the local culture to deal with, it was President Khatami’s task to take care of the
specificity of Iranian law. The goal of the President Muhammad Khatami was to change
80
Mary Robinson, High Commissioner for Human Rights, Personal Impressions of the Seminar on
“Enriching the universality of Human Rights: Islamic perspectives on the Universal Declaration of Human
Rights”, OHCHR- United Nations Office for the High Commissioner, Geneva, Switzerland, (November 10,
1998),
(transcript
available
at
http://www.unhchr.ch/huricane/huricane.nsf/(Symbol)/OHCHR.981129.A.En?OpenDocument),
seminar
organized by Office for the United Nation High Commissioner for Human Rights (OHCHR) and the
Organization of the Islamic Conference, Geneva, 9-10 November 1998.
29
the system within the constitutional framework. Without human rights, no changes and
no democratization were possible. Human rights were the crutches of democratization
and President Khatami intended to rely heavily on the Iranian civil society to implement
these rights. M. Khatami wanted to reconcile the Islamic republic with human rights, as
well as Islam and democracy through the medium of human rights. To reach his goal, he
glorified Iranian values without falling into the cultural relativism trap, as he also
recognized the necessity of enforcing human rights, without talking about their
universality.
However this idea seems to have failed at the national level: the promised reforms
were never implemented, or few of them were. Conservatives constantly challenged
President Khatami’s commitment to human rights. There were no crisis-free week and
the “Gorbatchev of Iran” soon faced the limits of his theory. 81 Instead of supporting
Khatami’s vision of human rights that would have ensure the survival of the Islamic
republic as well as tolerance and respect for the Iranian heritage, hardliners maintained
the cultural relativism’s political line. Consequently, the dreams and hope the Dialogue
among Civilizations might have stirred among the Iranian population and civil society
took an end. The quest for enforcement of human rights from the top to the bottom was
over.
Scholars and journalists to compare Khatami’s efforts of reform to Gorbachev’s Perestroika have used
this expression.
Maloney Suzanne, Ayatollah Gorbachev: The Politics of Change in Khatami’s Iran, The Brookings
Institution, 2003.
Sicherman H., The Iranian Gorbachev: Khatami’s “New Thinking”, Cornell online library, (January 13,
1998), (at www.library.cornell.edu/colldev/mideast)
81
30
As Khatami failed in his reform process, civil society stopped supporting him.
The dreams and hope he had symbolized when he came to power have vanished and are
replaced by disappointment and disillusion. At first, the reforms were not quick enough,
then they were not deep enough, and eventually there were no reforms at all. In 2003,
students were in the streets for months and challenged their hero, asking him to resign.82
It was the first very public step of the autonomization of civil society. The “idyllic”
relation between the reformist power and civil society was over.83
IV.
A third path: from the bottom to the top of the society, a new
path to enforce human rights?
The hopes of a reform from the top to the bottom of the society are over. However
the quest for the implementation of universal human rights in an Islamic system is not
over: Civil society took over and reforms come now from the bottom to the top. Divorce
between president Khatami and civil society has been pronounced by the Medias. Civil
society does not hope the changes will come from the top of the society anymore and
they have enough of theory. They want an enforcement of fundamental rights in the field.
The power is now in the streets and not in the ballots. Some speaks of the passage from
slogan to practice.84 It is rather a passage from theory to practice.
82
Still on the streets, The Economist, 16 June 2003.
Boroumand Ladan and Roya, Illusion and Reality of Civil Society in Iran: An Ideological Debate, Social
Research, Summer 2000.
84
Banuazizi Ali, Islamic State and Civil Society in Iran, The Moshe Dayan Institute for Middle Eastern and
African Studies, (2001), (available at http://www.dayan.org/mel/banuazizi.htm)
83
31
A. The Claims of Civil Society
Before President Khatami, there was no hope for social changes. The ravabet
system (relations) was more important than the zavabet (reign of law). People were
desperate because the system had already decided your destiny. People felt like
“ayandeh-sazan-e bi-ayandeh” (Forces of the future with no future). At the time, there
were no attempts to dismantle the clerical power from the streets.85 Then with the new
President came the hope for changes and people start to voice their disagreement. The
major hope stirred by Khatami’s movement concerned improvement of the job market
and improvement of freedoms.
The major claim is the rejection of control and morality. People want to be able to
master their destiny and to make choice. Social disenchantment is one of the reasons why
the civil society has entered the struggle for human rights and civil rights. Young people
are the symbol of this disillusionment. It remains to most explosive group.86 It is also the
social group that presses the most for the recognition of the individual within the
society.87
The frustration grows as Iranians had a taste of liberty during the first and the
beginning of the second term of the Khatami administration. The human rights situation
began to decrease in April 2003. The conservative group that reached power through the
85
Amir Arjomand Said, Civil Society and the Rule of Law in the Constitutional Politics of Iran Under
Khatami, Social Research, (Summer 2000)
86
Enssani, Elahe, Iran’s Domestic Crisis : Its Youth, Iranian Voice, (December 28, 2004), (available at
www.iranianvoice.org)
87
Khosrokhavar Farhad, Le Nouvel Individu en Iran, L’Individu en Turquie et en Iran, revue CEMOTI,
numéro 26, Paris, (Juillet/Décembre 1998).
32
February 2004 election is repressing freedoms. The campaign and the result of the 2004
election were for some a political disillusionment, though it could be predicable as
Iranians are so tired with the system that they didn’t go to the polls.
The Iranians show their discontentment and claim their rights by demonstrating
and protesting. The reformist newspaper Nowrooz was the boldest. It was the only
newspaper that dared to publish the letter of resignation of Jalululdin Taheri.88 The next
day, Iran’s Supreme National Security Council banned all newspapers from writing
against or in favor of Taheri’s comments. The newspaper was published the next day, full
of blanks, with the mention: “The article was removed on the National Security Council’s
order.89”
Students are still also mobilized, disturbing official events. During Student Day,
President Khatami was addressing himself to a crowd of selected students. 90 Other
students forced their way to the address of President Khatami: it was a moment of
extreme confusion, as the students kept outside the university pushed through, shouting at
the security “savages, savages” while President Khatami was pleading for the officials to
let the students in. President Khatami apologized to the students who began to yell at
him: “shame on you” or “What happen to freedom?91”
88
Nowrooz, Tehran, 8 July 2002, (available at www.nowrooz.net)
Nowrooz, Tehran, 10 July 2002, (available at www.nowrooz.net)
90
President Muhammad Khatami, Address to Students, Student Day, Tehran University, (December 06,
2004)
91
Press Release, Summary of the Student’s Day Demonstration, Alliance for Iranian Student, (available at
http://www.daneshjooyan.org)
89
33
Another form of protest is open letters: On the 19th May 2003, 196 clerics,
intellectuals, women and journalists issued an open letter.92 The personalities who signed
it were more or less the same ones who signed the previous letter. The terms used in this
letter are clearly a reference to Bush’s “Axis of Evil” statements and later statements. The
letter opens on the threat the country is facing: “Looking at the grave situation of our
region and the delicate condition of our country, and in pursuit of giving support to the
nation to stand against foreign threats and to break the internal political deadlock […]”.
The whole letter is therefore an “advice” given by prominent members of the civil society
to the government as to how addressing the external threat. The term used could be
perceived as daring: “violence, narrow-mindness and monopolizing power are in
complete conflict with Islamic values. Taking away people’s God given rights is
unacceptable”. It is interesting to notice that this is not a secular approach of Human
Rights but an Islamic approach. They are asking for human rights within the Muslin
framework, not the western-type of human rights proposed by the American government.
“The misuse of Islam for sinister ends, encouraging factionalism and attacking
intellectuals - in the name of religion- who criticize the system has already inflicted
damage on the morals and spirit of the nation”. The main argument all trough the letter is
the sake of the country. The issue raised in the letter is how the country can avoid an
American invasion. The answer is the respect of Human Rights.
To ensure the
enforcement and the respect of Human Rights, the intellectuals listed the measures that
should be taken. In the second paragraph of the letter, it is written: “The unelected
institutions […] are united and are standing against the wishes of the nation”. In the third
92
Iranian Political Activists, Statement Regarding Ways to Assist National Resistance Against Foreign
Threats, (May 19, 2003), (available www.kadivar.com)
34
paragraph, “On the top of the demand for freedom and justice, a popularly elected
government is at the top of the list”. The words used here remind strongly of President
Bush’s state of the nation speech and his later statements.
One April 24, 2004, The Iranian Association for the Defense of the Press led by
Hojjatoleslam Mohsen Kadivar published an open letter to the Guide.93 The Association
asked the Guide “to start answering the people” about his actions as the highest authority
of the country for the past 15 years, actions taken as an un-elected. Most of the Iranian
political dissidents like Dr. Qasem Sho’leh Sa’di, Dr. Mohammad Mohsen Sazegara,
student’s leaders and some reformist lawmakers who had in the past addressed open
letters to Mr. Khameyni, criticizing his domestic and foreign policies and even
questioning his religious title have landed in jail, accused, among other charges, of
“insulting the leader”.
There is also a claim for the enforcement of the rule of law. President Khatami
had promised such enforcement during his campaign. It was one of his four slogans. 94 He
could not enforce it as the judiciary became the tool of the Conservatives to repress civil
society activists and the rule of law was ignored. Iranians wish for the enforcement of the
rule of law so that they can have trust and respect for Iranian laws. 95 Some civil activists
93
Haeri Safa, Khamenei is Responsible of Un-Elected Exactions, Press Association Say, Iranian Press
Service, April 24, 2004, (available at http://www.iran-press-service.com/).
94
Muhammad Khatami, Candidate to the 1997 presidential election, Address at the University Imam
Sadegh, University Imam Sadegh, Iran, transcript available in Payam-e Emrouz, N°18, OrdibeheshtKhordad 1376/ April-May 1997, p. 13
95
Kheiltash Golzar, The Rule and Role of Law in Iranian Civil Society, a Introductory working paper,
(December 2003), (Available at
http://www.hamyaran.org/publications/The%20Rule%20and%20Role%20of%20Law%20in%20Iranian%2
0Civil%20Society.pdf)
35
asked for a house of justice.96 In an article, the Nobel Prize winner Shirin Ebadi says
there is the necessity of creating such a house that would supervise the enforcement of
law and judges’ work.97 One of the reasons Shirin Ebadi calls for a House of Justice is to
counter the judiciary’s power. The judiciary is indeed the tool used by Conservatives to
repress civil society activists.98 Civil society activists and human rights defenders are
permanently under threat.99 The recent arrests were wide: Mahboubeh Abbasgholizadeh,
editor of the feminist newspaper Farzaneh and Director of the Iranian NGOs Training
Center was arrested. Azam Taleghani, head of Society of Islamic Revolution Women of
Iran, was forbidden to travel outside the country. Recently, arrested journalists seemed to
have been forced to sign confessions under duress.100 How can people respect and Iranian
laws if the enforcement of those laws is done always in the favor of the regime?
Therefore there is the need for a body that could supervise the enforcement of law.
Iranians had a taste of a new freedom with the election of Khatami. Like Ladan
and Roya Boroumand say “In the aftermath of Khatami's rise to power, Iran witnessed an
explosion of public speech. Within a few weeks, the political discourse burst through the
narrow framework of the official revolutionary language. Expressions like "freedom of
96
Civil society first demand during the constitutional revolution in 1905-1911 was the establishment of a
House of Justice that would implement the rule of law.
97
Ebadi Shirin, We Want a House of Justice, Jame-e Salam, Monthly Magazine, No. 29, Jul. 1998, Page 13
98
Van Engeland-Nourai Anisseh, Iran: Civil Society versus Judiciary, a Struggle for Human Rights,
Cornell Law School LL.M working Papers, (April 2004), Paper 3, (available at:
http://lsr.nellco.org/cgi/viewcontent.cgi?article=1012&context=cornell/lps)
99
Press, Release, Amnesty International, Iran: Civil society activists and human rights defenders under
attack, AI Index: MDE 13/045/2004 (Public), (November 10, 2004), (available at www.amnesty.org)
100
Press Release, Human Rights Watch, Iran: Torture used to Obtain Confessions, New York, (December
07, 2004)
36
thought," "pluralism," and "civil society" filled the air.101” Now that this ideal relation
with the power is over and the judiciary is used to repress people’s hope for freedom,
what remains of civil society’s claims for human rights? Has the civil society lost its
empowerment when it became an autonomous force? What is the role of civil society in
the enforcement of human rights?
B. Human Rights and the civil society
Civil society is tired with the debates about the enforcement of human rights, whether
universal or Iranian/Islamic, civil society has adopted pragmatism.
It seems first that civil society tries to avoid the legal debate and would rather have to
deal with the social, economic and cultural aspects of human rights. Law is considered as
an obstacle as the enforcement of laws under the system is not always fair. 102 Non
governmental organizations would rather deal with women’s rights in the field than in
legal terms. However this approach is problematic: Golzar Kheiltash underlines that in
order to answer to the needs in human rights, non governmental organizations should
learn to deal with the law:103
“Rather, each NGO, regardless of its mandate, must constantly engage with law and
conceptualize its mandate and work through the lens of law. Thus if an NGO works
on providing services to victims of domestic violence, it invariably must deal with
law on both a substantive and procedural level: substantively, it must be familiar with
the laws on domestic violence, as well as women's rights as citizens under the
Constitution and numerous international conventions, if it wants to engage in
101
Boroumand Ladan and Roya, Illusion and Reality of Civil Society in Iran: An Ideological Debate, Social
Research, Summer 2000.
102
Kheiltash Golzar, The Rule and Role of Law in Iranian Civil Society, a Introductory working paper,
(December 2003), (Available at
http://www.hamyaran.org/publications/The%20Rule%20and%20Role%20of%20Law%20in%20Iranian%2
0Civil%20Society.pdf)
103
Golzar Kheiltash is the program manager of legal affairs, Hamyaran Iran NGO Resource Center.
37
advocacy on behalf of its victims. Procedurally, the NGO must be familiar with the
legal system, and the legal norms of Iranian society, for it may be required to
promulgate new laws or amend existing ones.104”
Nevertheless, most of the civil society activists are using the terminology of human
rights and democracy. Some do without referring to the legal content, other do explicitly
use law to promote human rights. Some activists like the lawyer Mehrangiz Kar clearly
refer to human rights and universal texts, from a legal point of view.105 Human rights
defenders, like Shirin Ebadi, declare fighting in the name of those fundamental values.106
Others, like students, journalists and academics often refer to human rights as to the
cultural, economic or politic concept rather than a legal concept.
Students have many internet sites and web logs.107 They initiated a major petition
online in favor of a referendum to modify the constitution. The petition calls for “a
national referendum with the free participation of the Iranian people, under the
supervision of appropriate international institutions and observers, for the drafting of a
new constitution that is compatible with the Universal Declaration of Human Rights and
all its associated covenants.108” Until now the initiative has not had a major impact. Some
104
Kheiltash Golzar, The Rule and Role of Law in Iranian Civil Society, a Introductory working paper,
(December 2003), (Available at
http://www.hamyaran.org/publications/The%20Rule%20and%20Role%20of%20Law%20in%20Iranian%2
0Civil%20Society.pdf)
105
Kar Mehrangiz, The Legal Status of Iranian Women, Society on Podium, Iran Chamber Society, 2004,
(available at http://www.iranchamber.com/podium/society/041127_legal_status_iranian_women.php)
106
Shirin Ebadi, Nobel Prize lecture, Oslo, Norway, (December 10, 2003), (available at
http://www.nobel.se/peace/laureates/2003/ebadi-lecture-e.html)
107
The internet site www.daneshjoo.org, set up by Student Movement Coordination Committee for
Democracy in Iran (SMCCDI) claims to be devoted to human rights and democracy in Iran. There are
many books in Persian about human rights in Iran and around the world: books written by Shirin Ebadi or
Mehrangiz Kar but also by figures like Mojtahed Shabeshtari or Ayatollah Sanei. Those books are not easy
to find.
108
The petition is available at www.60000000.com
38
25,000 signatories have given permission for public release of their names as of 16
December; it is not possible to know how many have signed the petition in total and the
government has apparently restricted the access to the site from inside the country.109
It is not the first attempt from the students to call for a referendum in order to enforce
human rights in Iran. President Khatami gave his annual speech on Student Day at
Tehran University on December 6, 2004. According to Fars News Agency and the
Iranian Student News Agency (ISNA), students kept chanting “Referendum” during his
address.110 In May 2003, students also held a mock referendum in a very symbolic place:
the Bu Ali Sina University in Hamedan, where Professor Aghajari had delivered the
speech that sent him to prison.111
The youth is perhaps the only social group using the human rights discourse with no
awareness of doing so. They are more interested in the practical enforcement of those
rights than in the rhetoric.
Human Rights are now taught in universities. There are some institutes flourishing,
though they are still under governmental control. Civil society organizes human rights
seminar for Iranians and non-Iranians.112 The aim is to educate Iranians to international
human rights, non-Iranians to the reality of the field and the clash between Islam and
109
Press Release, Iran Press News, Political Activists Seek Constitutional Reform, (December 21, 2004),
available at http://www.iranpressnews.com/english/source/002173.html
110
Press Release, Fars News Agency, www.farsnews.com, and Press Release Iranian Student News Agency
at University of Fars, www.isna.ir/news/university/Fars.htm.
111
Press Release, Iran Press News, Political Activists Seek Constitutional Reform, (December 21, 2004),
available at http://www.iranpressnews.com/english/source/002173.html
112
The Non Governmental Organizations Training Center organized a summer course of the promotion of
civil society, in Tehran, from the 9th of June until the 04th of July 2004.
39
human rights. The human rights Center at Mufid University in Qom holds a biennale
human rights conference gathering professors and experts from around the world: the
conference has reached its third meeting.113
Many non-governmental organizations have appeared in the human rights field.
Some of them are independent, others are not. In any case, it is the demonstration of a
will of the population to take control of their lives. Most of those organizations have
understood the challenge of human rights and what the importance it has for their
struggle. The best example is the Iranian Children’s Rights Society who is supported by
Shirin Ebadi and was one of the first organizations to rescue children after the Bam
Earthquake. The organization’s mission is also to take care of street children.114 There is
also an organization gathering all the non governmental organizations under one
umbrella: Hamyaran is an Iranian NGO resource center focused on capacity building of
NGOs and an initiator of community empowerment projects countrywide.115
C. The reform from the bottom to the top: a third path to enforce human rights
in Iran?
Until now, there have been different theories elaborated to answer the challenge
of the enforcement of human rights in Iran. What happens in practice?
It seems that the Dialogue among Civilizations failed on the national scene
because of Conservatives’ refusal to compromise. As Khatami failed and almost retired
113
The Third Biennale Conference on Human Rights organized by the Mufid University Center for Human
Rights, will take place on May 15-15, 2004, in Qom, at Mufid University, “Identity, Difference and Human
Rights (information about those conferences are available at www.mofidu.ac-ir/conference)
114
Iranian Children’s Rights Society, http://www.iranianchildren.org/
115
Hamyaran, www.hamyaran.org
40
from the public scene, civil society took over the challenge to make Iran’s entrance in the
21st century successful. Even if civil society is divided between advocates of the
maintenance of the republic, advocates of secularism, advocates of a reconciliation
between Islam and human rights, and advocates of a full enforcement of universal human
rights, civil society activists have the same method: a human rights reform from the
bottom to the top of the society, that answers the people’s needs and refuses to bend to
the Conservatives’ threats. They all speak the same language: the human rights language.
All these actors have in mind democracy, whether in an Islamic or in a secular context.
The discourse of civil society is mixed: there are references to universal human
rights. The call of student for a referendum was made to have a new constitution in
accordance to the Universal Declaration of Human Rights and other international
treaty.116 Mehrangiz Kar also refers to international human rights: The aim of her
acceptance speech for the Luc Tardieux prize was to present the legal obstacles that
prevent the flourishing of democratic institutions and disallow the implementation of the
basic and universally-accepted principles of human rights in Iran.117
In her Nobel Prize speech, Shirin Ebadi also referred to the Universal Declaration
of Human Rights and the necessity to respect it:
Today coincides with the 55th anniversary of the adoption of the Universal
Declaration of Human Rights; a declaration which begins with the recognition of
the inherent dignity and the equal and inalienable rights of all members of the
human family, as the guarantor of freedom, justice and peace. And it promises a
116
The petition is available at www.60000000.com
Mehrangiz Kar, Iranian Lawyer, Speech of Acceptance of the Luc Tardieux Prize,7 th International Luc
Tardieux Prize for
Human Rights, Paris, 2002, (available at http://www.idhae.org/idhae-frpage3.1.rem.htm)
117
41
world in which human beings shall enjoy freedom of expression and opinion, and
be safeguarded and protected against fear and poverty.
However, as she says later: “The people of Iran, particularly in the recent years,
have shown that they deem participation in public affairs to be their right, and that they
want to be masters of their own destiny”. She adds:
“A quest for new means and ideas to enable the countries of the South, too, to
enjoy human rights and democracy, while maintaining their political
independence and territorial integrity of their respective countries, must be given
top priority by the United Nations in respect of future developments and
international relations.”
Civil society activists take the challenge for reconciliation between Human Rights
and Islam very seriously. Shririn Ebadi declared in her Nobel lecture:
The people of Iran have been battling against consecutive conflicts between
tradition and modernity for over 100 years. By resorting to ancient traditions,
some have tried and are trying to see the world through the eyes of their
predecessors and to deal with the problems and difficulties of the existing world
by virtue of the values of the ancients. But, many others, while respecting their
historical and cultural past and their religion and faith, seek to go forth in step with
world developments and not lag behind the caravan of civilization, development
and progress. The people of Iran, particularly in the recent years, have shown that
they deem participation in public affairs to be their right, and that they want to be
masters of their own destiny. This conflict is observed not merely in Iran, but also
in many Muslim states. Some Muslims, under the pretext that democracy and
human rights are not compatible with Islamic teachings and the traditional
structure of Islamic societies, have justified despotic governments, and continue to
do so. In fact, it is not so easy to rule over a people who are aware of their rights,
using traditional, patriarchal and paternalistic methods.118
118
Shirin Ebadi, Nobel Prize lecture, Oslo, 10
http://www.nobel.se/peace/laureates/2003/ebadi-lecture-e.html)
42
December
2003,
(available
at
Civil society takes into account the debates about relativism and universality, but
to put them aside. Activists see it as theoretical and as weapons used by the government
to stop their progression towards freedom. More than anything else they do not think
Iranian culture would be harmed by the enforcement of human rights. They also consider
universal human rights not as a western creation but as a result of “common sense”.
Human rights are what human beings share naturally, whether granted by God or the
nature. The Universal declaration of Human Rights appears more like a code to refer to
than the universal truth.119 It is a healthy approach of universal human rights: the 1948
Declaration is not the truth on earth and has its flaws. The Iranians say then that an
elected body should deal with those flaws and at the same time make Iranian law
compatible with this common sense that the 1948 Declaration is.
Far from denying the issue arising when one speaks about human rights, civil
society activists try to solve the problem through pragmatism. The first aim of civil
society members, through the press, non governmental organizations and activists, is to
wake up Iran to the necessity of Human Rights. The second step is to face the hardliners
and defeat them by forcing them to enforce Human Rights in the fields they control such
as the judiciary power and the Medias. Eventually, the solution will come by itself. As
the civil society will force changes upon the regime and as the nature of the regime will
either evolve or change, Human Rights will find their place and their legal references, as
much as Iranian law will evolve. The opposition between cultural relativism and
universality of human rights has been bridged by civil society’s pragmatism. The
119
Littman David, Universal Human Rights and Human Rights in Islam, Midstream, New York,
February/March 1999.
43
people’s frustration and motivation gave them the strength to defy one of the biggest
challenges Iran faces.
Conclusion
Iran is not the only country facing the universality problem: how can a country
apply one model applicable to all and protect its own identity. That is how universality of
Human Rights and globalization of values are often perceived. However as long as the
international community does not show any sign or willingness to renegotiate the Human
Rights basis, Iran has to deal with what are the universal rules. Civil society seems to
have taken up the challenge. Though the repression is very important, nothing can stop
the movement and the reforms.
There are still issues: civil society does not speak with one voice. Some struggle
for secularism while other still hope for an Islamic democracy. There is also the risk that
Iranian culture might be shattered by the enforcement of Human Rights values.
Eventually, because of the divisions and the harassment from the judiciary, The Iranian
civil society is going through a crisis and a struggle for its soul and to solve certain issues
before it can go on.
44
It seems like the solution to the endless debate about universal human rights and
localism will be solved by the Iranians. It is not the power neither foreign powers that
will press any changes on Iran and enforce human rights but Iranians themselves.120
Eventually Iran is an example for other countries in the region. It has always been
a dynamic country, going from revolution to revolution, and creating new political ideas
along the way. Iranian civil society might be about to succeed in conciliating universal
Human Rights values and Islam and that would have an impact throughout the Islamic
world.
120
Van Engeland-Nourai Anisseh, US Human Rights Foreign Policy Towards Iran after 9/11, LL.M paper
for Harvard Law School, supervised by Henry Steiner, The Nathan Hale Foreign Policy Society, Working
Paper Series, paper 2, (September 2004), available at http://www.foreignpolicysociety.org/workingpapers.htm
45