International: Conflict and Custom in the New World Order

"There is a struggle to be had. It is time to challenge the hegemony of the formal human rights movement and its uncritical embrace of identity politics". Gita Sahgal in conversation with Deniz Kandiyoti. Part two.

DK:  In  Part I of our conversation 'Soft law' and hard choices you concluded that the “war on terror” had a deleterious effect on women’s rights issues. Can you provide some illustrations of what you meant by that?

GS: One of the examples that shocked me most was what happened in Iraq where, as you know, there has been a massive slaughter of women since the US-led military intervention. This has been underreported by the human rights movement and existing reports often focused on so-called “honour killings” i.e. women being killed by their families and kinsmen. This, of course, totally obscures the fact that the victims were oftenprofessional women, active in public life and that the perpetrators were militias and armed groups'

Now there are two  ways in which the human rights movement has dealt with the issue of ‘crimes in the name of honour’. On the one hand, UN experts such as Asma Jahangir, who was Special Rapporteur on extra-judicial killings, started to present ‘honour killings’ in Pakistan as a form of extra-judicial execution. Even though the actual crime may be committed by the family, the state is often directly or indirectly responsible for colluding in the crime ( for instance by imposing very low penalties, or by being  either complicit with or directly implicated in the killing – by having police or government officials present at the council ordering the killing- or by sheer failure to prosecute). This analysis stems from a very important legal judgement known as the Velasquez Rodriguez case in the Inter-American Court.

Even though this legal foundation had already been laid by the time systematic killings of women who are active in public life or who transgress in their private lives began on a large scale in Iraq and Afghanistan ( and indeed in other centres of the ‘War on Terror’ such as Somalia), much commentary, even in human rights reports, reverted to seeing ‘culture’ as a driver for women’s deaths. So militia killings, a classic form of extra-judicial execution, are referred to as ‘honour killings in one UN report on Iraq.  Killings of officials and others are referred to as extra-judicial executions but in gender neutral terms, so that the fact that women are targeted as women is completely buried.

DK: In post-conflict contexts, and in others where the provision of justice as a public good is deficient, there appears to be a consensus among powerful donors that devolving bits of the legal system to the local level and having recourse to alternative dispute resolution mechanisms is the answer. Furthermore, these types of decentralization and devolution are presented as forms of democratization and bottom-up participation. What is the moving force behind this consensus? And what are the implications for women’s rights?

GS :There are a number of forces behind this consensus. One is the reluctant recognition that most societies already operate in a legally plural world and that the most ‘just’ law is not necessarily delivered by the  formal courts – either because the law is often normatively more conservative than actual customs and norms that people live by, or because the formal court system is simply overloaded, unwieldy, slow and expensive. So there have been numerous movements calling for the recognition of other legal systems – perhaps most powerfully in Latin America as a result of the indigenous rights movements gaining a voice and even political power as in Bolivia. Women’s rights advocates have also been involved in a number of processes from resolving domestic disputes through what is known as alternative dispute resolution ( ADR) to peace processes where they have negotiated across conflict lines. Sunila Abeysekera has been involved in such processes through her organisation Inform which has mapped ‘disappearances’ during the conflict in Sri Lanka but also negotiated with sympathisers from different sides.

Now these movements have been taken up in broadly two ways –  in human rights discourses and by powerful international organisations and donor governments as part of their aid agenda, particularly in what are known as post-conflict countries. These appear to be different approaches, but they converge precisely over negotiating away women’s rights and the rights of minorities – since these get ignored and submerged within purportedly homogenous identity-based groupings. Therefore those who are already marginalised may be further marginalised in informal justice systems which are controlled by local elites. Informal systems then use law to perpetuate or even re-invent a particular notion of cultural or religious identity.  A woman who may simply want to access a particular right – alimony in theShah Bano case in India, or inheritance in the case of Sandra Lovelace in Canada,  finds that she is challenging  the identity of the entire community who mobilise against her. Ironically in both cases, the law being applied was based on a colonial interpretation of religion and custom. 

There is a growing human rights literature which discusses the competing demands of recognition of religious or cultural identities, on the one hand, and ‘balancing’ these with upholding equality and non-discrimination norms, on the other. When identity claims are smuggled in as part of non-discrimination norms, the goal of equality can easily be derailed. The debates over headscarves and the wearing of niqab are an example of this - see for instance the debate between Joan Scott andKarima Bennoune. It was in an attempt to bring a different view to international attention that WLUML and Amnesty International did a joint submission on issues arising from the Lubna Hussein case, a woman persecuted for her attire in Sudan.

Those promoting identity claims see themselves as offering a more culturally responsive version of human rights, but this approach all too often depends on being oblivious to women’s equality and to disputes within groups. Women’s rights advocates often refer to universal principles and the need to either protect existing law or to argue for new law such as relying on a civil code, rather than on different systems of family law based on religion in which people are seen as members of a religious community – as Amrita Chhachhi writes - a sort of forced identity that limits their entitlements rather than defining  their rights as citizens. However, most human rights bodies have hardly dealt with family laws and tend to condemn parallel courts or informal courts principally because of their lack of due process and their harsh punishments ( such as whipping and stoning). While these are valid arguments they fall short of fully grasping the range of violations caused not just by the conduct of these courts but by their very structure. Parallel or customary courts tend to  lend substance in law to religious or tribal identities that are themselves often the product of a colonial inheritance.  They undermine women’s access to civil law even in those countries, such as Ethiopia, where a civil code exists. The Human Rights Committee made a recent comment in which it tried to square this circle by suggesting that lower courts should only handle ‘minor civil and criminal matters’. In Britain, the Lord Chief Justice made a similar point about sharia councils. This leaves virtually all matters pertaining to women’s lives, including quite serious crimes against them such as rape, in the hands of bodies that are systematically biased against them. That is why it is so astonishing that a number of powerful international institutions have put a lot of effort, and more importantly substantial finance, behind the promotion of parallel or alternative courts while overlooking the consequences, particularly for women.

DK: So are you saying, in concrete terms, that this type of devolution often deprives women of justice? Because a disproportionate number of so-called “minor” cases-family, marriage, divorce or inheritance disputes- would potentially be devolved to unaccountable and gender biased institutions? 

GS: Yes, it deprives women of justice and also people who are from any minority tradition whose norms are not reflected in the law being applied. They have access neither to universal norms which could protect their rights, nor to the specific norms and customs to which they might adhere in their everyday lives. For instance, in some groups women may have easier access to divorce through their community norms than courts allow. Often the mapping of custom through a formalised process in the service of setting up a parallel justice system enforces more restrictive and patriarchal norms than was previously the case. So a legal system which is created ostensibly as part of a broader democratisation effort may end up inadvertently disenfranchising many citizens in terms of their legal rights.

This is particularly likely in post-conflict settings where foreign governments or charitable donors are pushing for such systems to be adopted. One such case was seen in South Sudan, where both World Vision, a Christian charity and the UN have supported the mapping of customary laws. The South has changed irrevocably during a twenty year period of conflict, social systems have been disrupted, and a large population of urbanised migrants have returned from exile. So the purpose of the system is to help create a national identity which can challenge the Muslim dominated, Shari’a based law of Khartoum, to ‘restore’ the old order and create a new version of South Sudanese identity through law. Pushing for women’s equality is seen as a threat to this project, since it is precisely the social compact that would be created under a patriarchal order which is supposed to be a guarantor against the recurrence of conflict. In contrast, women’s rights advocates, have emphasised that they are struggling for a transformed social order, not one that simply restores the status quo ante.

That is also why the current discussions on Afghanistan, whether from the left or right of the political spectrum, are so frightening. All talk of ‘moderate Taliban’ or ‘light foot print’  of foreign forces leads to the same end – that is a political consensus in which the rights of some are traded for ‘peace’ and ‘security’. This is a false equation which will bring neither peace nor security as conventionally understood, even in military terms; and will certainly not assist those seeking to implant some genuine democratic values.

DK: Would it be possible to talk about two contradictory tendencies at work here? On the one hand there is a drive to expand and consolidate women’s rights through the institutions of global governance, like for instance the United Nations setting up a “super agency” to monitor gender equality or setting up various machineries for gender mainstreaming. On the other hand, you have an even better resourced movement pushing in the direction of opting out of the formal legal system in favour of decentralized “traditional” actors with little judicial oversight and with built-in patriarchal biases.

GS: Yes, that is true and no-one seems to have noticed, except of course, the women who are directly affected and who are fighting heroically all over the world. Quite often their first hurdle – and they never get any further -  is to convince those supposedly on their side (international NGOs, the UN and government aid agencies) to abandon approaches based on religion and tribal custom. There is a fascination with working within ‘Sharia’ by the British government, for instance, which may lead to regressive approaches which undermine not only secular values, but also the work that feminists have done to promote progressive readings of religion.

One example that fortunately failed to take root is the Asian Development Bank’s attempt to create an alternative dispute resolution system in Pakistan. It was backed by a huge budget and proposed a system that would by-pass the courts to resolve a whole host of disputes which included criminal as well as civil matters, with absolutely no safeguards as to process or judicial oversight. Naturally the Pakistani Judiciary and the lawyers hated it.  At a meeting of the project on plural legal orders a Pakistani human rights advocate who evaluated the system said the best thing about it was its complete failure. It was, in effect, an attempt to formalise the jirga system, which was a highly contested institution against which the entire feminist and human rights community has fought. It wasn’t considered particularly ‘authentic’ by ordinary people either.

Some of these programmes have quite Orwellian titles like ‘Legal Empowerment of the Poor’, and they appear to be dedicated to getting the poor out of the formal court system, quite as much as getting them before informal tribunals. The reason that a Bank would be interested in funding the provision of justice in a developing country may have to do with preparing the formal courts to implement laws on financial regulation ( or deregulation) and relieve them from the burden of attending to a whole host of irrelevant matters (such as family disputes and abuses of women’s rights). Poor people, in short, should not clog up the court system.  Nor should they, particularly if they are women, entertain the notion that they have immutable rights; only negotiable claims – which they may win or lose depending on their negotiating power, money, support of community elders, and so on. Mapping customary uses of land, for instance, may help people secure individual title to land, which can then become a source of collateral and credit. The drive to formalize is in no small measure related to deepening market integration and commodification.

DK: A lot of commentary opposes an allegedly secular human rights establishment (which includes feminist groups)  to fundamentalist movements and tendencies of various stripes. What I find most interesting about the way you are framing your argument is that you are, in fact, suggesting that numerous mainstream secular organizations are trying to inhabit the space of religion- but they are doing so on their own terms and for their own instrumental purposes. Are they entrenching a normative vision of religion as the antidote to the presumed ills of  “culture”?

GS: Exactly. Everything that is debased is cultural and everything that is pure is religious. The slogan is: “it’s not religion, it’s culture”. In fact, religious practice is always culturally mediated and therefore variable. There is a world of difference between what Women Living Under Muslim Laws (WLUML) was trying to do - comparing civil codes, customary laws and Muslim personal laws, and therefore highlighting the existing room for manoeuvre, and agencies seeking to find definitive (often fundamentalist) versions of ‘Sharia’ law  and selling them as more ‘authentic’ than local cultural practice. What they don’t see is that these top-down interventions are narrowing the scope for flexibility and negotiation over women’s rights.

DK: To what extent is there also a confusion here between culture, religion and politics?

GS: The effects of this confusion were evident here in the UK. There was a period in the mid-1980s when the local councils and the GLC were funding Hindu Rights groups as “cultural centres". They inadvertently legitimized an extremist political tendency that destroyed the Babri Masjid mosque, attempted to build a Hindu temple on its site and  has repeatedly committed atrocities against Muslims and Christian across India .Some people were undoubtedly contributing money in good faith, but there is no doubt that the diaspora acted as a powerful force bolstering the Hindu extremism. Activists in the US and Britain researched these groups and campaigned against them.

Today, we see that a range of fundamentalist organisations of the Islamic Right are being promoted by the state and by sections of the left and liberals. People who are members or suspected members of armed groups and who fled to this country and used it as a refuge were able to re-export militancy to their regions of origin. The British state and human rights bodies have legitimized many such groups including the Jamaat e Islami, the Muslim Brotherhood and salafis of various persuasions.

DK: When you did your work on the Hindu Right, this did not appear to create a great stir. However when you replicate this sort of work with Islamic groups and the Muslim diaspora it becomes more much controversial and divisive because of the “war on terror” and the human rights abuses committed in its name.

GS: Yes, the results are completely different depending on which fundamentalisms you tackle.  If you confront the Christian Right or the Hindu Right you are attacked by members of those groups and may be exposed to threats. But you do not get attacked by the Left.

Whereas those working on Jewish fundamentalism may be accused of anti-semitism, and the critique will come from the both the left and right relating to political positions on  Israel.  Likewise any critical stance on Muslim fundamentalism becomes tainted with charges of Islamophobia and will bring down the wrath of the so-called progressives upon you. So it must be challenged. And of course a large part of the Right will love you for it! It is therefore very difficult to steer a consistent and ethical path and to argue that when challenging abusive counter-terrorism, we should equally be looking at the state’s promotion of religious fundamentalists and the destruction of secular spaces as part of the ‘soft ‘counter-terrorism policy.

DK: What is quite challenging is that many groups and organisations that may have little truck with the concept of individual human rights in doctrinal terms are nonetheless using the vocabulary and mobilizing tropes of human rights to press their rights to religious freedom. What are the implications?

GS: It is one of the strengths of the human rights framework that everybody does use it. But there are risks of serious threats to existing human rights standards. For instance, there is an ongoing attempt to make the defamation of religion into a human rights violation, initially through the use of soft law such as Declarations at the Human Rights Council. Although Amnesty International has offices in Geneva and New York, they did not work on this issue until feminists in the Women Human Rights Defenders International Coalition pointed out what was happening and astatement was drafted for the Coalition. Human rights organisations in the Coalition are particularly nervous about taking up this issue, as they are of dealing with religious fundamentalism as a serious threat to human rights. So they cannot see that the attempt to legislate the defamation of religion as an offence may open the door to significant  threats to human rights today.

But there is some room to challenge these developments. The Organisation of Islamic States pushed for a Special Representative on Culture because they wanted to ‘protect’ cultural rights from attack. But a lot of people mobilized and a very good set of candidates were put forward as international experts. Farida Shaheed from Pakistan, who was appointed, has a very complex notion of ‘rights in the field of culture’ and is also a feminist  activist. One must not underestimate what can be achieved within the parameters of human rights and I think the game is not entirely lost.

DK: Are you optimistic about future prospects?

GS: I'm not overly optimistic but I think there is a struggle to be had. It is time to challenge the hegemony of the formal human rights movement and its uncritical embrace of identity politics. The  fault lines between those struggling on the ground and around the globe to uphold universal values in conditions of war and deprivation and the parochial narcissism of  sections of the Anglo/American left is becoming more evident.

But I take heart from the rejection of the politics of the far right by large sections of the electorate in this country. So many working class voters – whether white or of Bangladeshi or Pakistani origin decisively rejected the politics of fascism, whether represented by the BNP  or the front organisations of Islamist parties.  In that sense, they are way ahead of the so called progressives and the leaders of the human rights movement.

But domestically, there are many struggles ahead. The faith agenda so heavily pushed by Blair will be retained by the new government. Public spending cuts are going to increase the power of religious lobbies as providers of essential services. At home and abroad, it is becoming clearer that the ‘War on Terror’ is not about a clash of civilisations, but about the political uses of religion as an instrument of terror on the one hand, or of discipline and control on the other. People in Afghanistan, Iraq, Pakistan, Sudan and so many other places understand this well. It is now time for others in the West to also wake up to these facts.

The first part of this conversation in which Deniz Kandiyoti and Gita Sahgal explore the challenges posed by the international conjuncture following the "war on terror" for gender justice and women's rights,  'Soft law and hard choices', can be read here

Deniz Kandiyoti, 20 May 2010