Minority Rights Challenged by the Legally Pluralist Coexistence of a Nation’s Civil Law with Islamic law: A Case-study of Greece

This blogpost serves as a summary of my LL.M thesis which concerns the problematic coexistence of Islamic Law with Greek Civil Law regarding the protection of the Muslim minority in Western Thrace in Greece. The aim of this post is to emphasise the importance of the conceptual understanding when confronting legal issues that entail a different set of values and political complicacies. The coexistence of two or multiple legal regimes within a country can raise several legal issues. For instance, the co-presence of Greece’s civil law with Sharia underlines precisely the judicial controversy and the differences between the Islamic values and those of the Greek Constitution and human rights law. Let us not forget that Greece is also a member State to several international human rights conventions and has the responsibility to respect, protect, and fulfil its human rights obligations. Notably, a multiple set of different legal frameworks and regimes are entangled for the protection of the Muslim minority’s rights. 

The Molla Sali v. Greece challenged the compatibility of a religious community’s separate legal status with the principles enshrined by the European Convention on Human Rights (ECHR). The case accentuated the debatable compatibility of Sharia with the ECHR principles. The applicant of the Molla Sali v. Greece case belongs to the Muslim minority of Western Thrace in Greece to which the applicable legal regime for inheritance and family issues is Sharia. Molla Sali complained that the implementation of religious adjudication to her issue by the Greek Court of Cassation deprived her of her right concerning the protection of property.

The outcome of the case has a significant impact on the parallel operation of Sharia law and the Greek Civil law for the minority. Before the case of Molla Sali, Sharia was compulsorily applied for the settlement of private law issues. The dual existence of these legal systems in Greece as a distinct setting for the religious minority in Thrace is a result of numerous international treaties between Greece and Turkey. The most important legal text that sets up the legal framework for the protection of the minorities in Greece is the 1923 Treaty of Lausanne. It is the most determining legal document regarding the legal status of the minorities in the country.  The Greek legislation’s interpretation of Articles 42 and 45 of the Lausanne Treaty is of great significance. The mandatory application of the Sharia law for the Muslim minority is nowhere explicitly provided in the Treaty. Instead, it mentions that the Government needs to adopt appropriate measures for the minority’s interpersonal disputes on family and inheritance law following the customs of the minority. Thus, the establishment of the Islamic adjudication system for the minority is viewed by the Greek Court of Cassation as stemming from international obligations set by the Treaty.

The European Court of Human Rights (ECtHR) did not accept the Greek Government’s arguments that the mandatory implementation of Sharia was to protect the distinctive characteristics of the minority according to its obligations set from the Treaty of Lausanne. The Court reiterates in its Judgement that according to its case-law, freedom of religion does not entail the requirement for the Contracting States to establish a specific legal system for the protection of the special status of a religious community that requires particular entitlements. It, therefore, did not commend that a State proceeded to the establishment of a religious regime just to secure the distinct needs of the minority. 

Moreover, the ECtHR in its Judgement in the Molla Sali v Greece case did not address the debatable compatibility of Islamic Law and Human Rights Law despite its opportunity to do so. Considering the Court’s general approach according to its previous case law towards Sharia (Refah Partisi v. Turkey), no determination is given on to what degree Sharia’s operation in Greece conforms with the Convention. At the same time, the Greek State was not requested by the Court to abolish the enforcement of Sharia for the minority. What the Court did was only to condemn the mandatory character of Sharia’s operation “but not Sharia itself.”

Consequently, the case of Molla Sali v. Greece introduced another version of the legal parallel regime in Greece. Its outcome is Sharia’s optional implementation according to the reformed Law in Greece. Precisely, in case of a disagreement between the involved parties, the dispute will be settled by civil law. The right to exit the minority’s legal order and the right to choose the civil law instead of Sharia highlights the right to self-identification, which agrees with the ECHR. Therefore, the new law seems to have ended a state of discrimination for the minority in Thrace. However, the complicacy in this case is that the individual choice of a minority member may conflict with the minority’s identity with religious law.

The automatic dispute resolution in cases of disagreement by the Greek Civil Code undermines the weightiness of Sharia within the context of Islam and the customs of Muslim communities in general. It needs to be stressed that even the optional implementation of Sharia law could undermine the religious legal system of the minority and its customs. Other members who identify themselves with their religion and its sacred rules will probably feel side-lined by the indirect imposition of civil law. Considering that there is no delivered Judgment on the new law yet, the religious freedom’s individualistic approach will be put under test in the future.

Finally, aside from the case’s legal problematic, a contextual understanding is essential. It must be underlined that concerns involving the minority in Thrace have often been put in the middle of bilateral political disputes between Turkey and Greece. The Greek Government’s hesitancy regarding the law’s modification for the Muslim minority’s interpersonal disputes settlement, before the case of Molla Sali, is partly due to those political sensitivities. Any change in the applicable law in Thrace could incite Turkey’s demand for “changes to the Lausanne Treaty’s” provisions, which are ongoing and not limited to the Muslim minority’s situation.

In conclusion, apart from the legal assessment of the case, a more conceptual and anthropological approach as an assessment tool, could have been a solid base for the peculiar situation in Greece. This case could have highlighted the multi-faceted role of minorities regarding the stabilization of bilateral State relations. Potentially, it could also have illustrated how the human rights mandate is applied to such complicated conditions. Especially, the implementation of law in conjunction to the complexity of internal and external political situations of States. 

  Source: Greece: Status of Minorities | Law Library of Congress (loc.gov)

Guest Post by Niki Manafa. Niki is a postgraduate LL.M Student of Utrecht University's Public International Law Programme. She has worked as a Trainee at the International Organisation for Migration in Athens, Greece and in the Greek Consulate in Munich, Germany and has also undertaken several research internships related to human rights law and international relations.

Radical Rudeness: A Mode of Traditional and Cultural Resistance and Activism in Uganda

Dr. Stella Nyanzi Protesting Outside a Ugandan Court in February 2020

Africans, particularly African women have long had a history of engaging in individual activism and collective struggle against multiple forms of oppression and discriminations on the continent. These struggles find their origins and often stem out of the colonial period or during periods of severe injustice and oppression.  Resistance and activism of this type has been pivotal in establishing women’s autonomy and agency and very often finds its roots or is institutionalised in traditional African cultural systems. This blog article will attempt to highlight the linkages between between traditional practices that are grounded in activism and resistance and which have served as catalysts in the achievement of various human rights and freedoms curtailed or denied at various times in history and in certain contexts in Africa. In this blog, attention will be paid to radical rudeness as a traditional mode of resistance in Uganda. A series of subsequent blog articles will follow in the coming months that will continue to explore traditional based protests in Africa such as that of nakedness and nudity, motherhood and tough love, as well as music and dance as ways of confronting inequality and other forms of social oppression.

The Roots of Radical Rudeness 

The concept of radical rudeness is one that has recently re- emerged in the context of Uganda. It is a mode of activism that has been reignited and has in recent years been claimed and made popular by the feminist-activist, poet and academic Dr. Stella Nyanzi.  Nyanzi has become well known for regularly challenging Ugandan President, Yoweri Museveni with personal attacks, curses and vividly erotic poetry in attempt to question the Ugandan government’s alleged corruption and questionable political manoeuvrings in the country. Radical rudeness as a form of activism found its roots in the early 1940’s when a group of Ugandan elitist activists in the Kingdom of Buganda attempted to challenge the status quo of power that existed between the ruling British elites and upcoming elites from Buganda. At that particular time the power that existed and was wielded by the British was often encapsulated and couched in politeness, manners, hospitality and sociability through which the British were able to secure both economic and political advantages from loyal Ugandan elites. This form of power was however, abruptly disrupted when a group of Ugandan elitist activists hailing from the Kingdom of Buganda used tactics of rudeness and a strategy of public insults to create disorderliness and disruption that worked to break the falsity of colonial ties, friendships/partnerships and mutual benefit between Ugandan elites and the ruling colonists.  Most importantly the method of radical rudeness worked to expose the true intentions of the colonial administration at that time.

Radical rudeness as a method of activism or resistance was implemented through activists employing strong and vividly powerful metaphors publicly either through the publication and dissemination of pamphlets, or through the disruption of public events that worked to destabilize the colonial administration by exposing the true intentions of the British. These insults took on various forms. As Carol Summers, in her article entitled Radical Rudeness: Ugandan Social Critiques in the 1940’s notes, metaphors of disrespect and insult were often used as tactics to champion the colonial administration. For example a metaphor  ‘Dogs of the British’ was used to refer to some Ugandan elites who were like British ‘pets.’ They were permitted into British homes, permitted to partake in all aspects of British culture and customs but in fact were considered dogs by the British because of their “half human” nature. 

Through this derogatory public insult, Ugandan elites who supported the British administration in Uganda were called out for displaying their disloyalty to their fellow countrymen by remaining loyal to their colonial masters and turning a blind eye to the suffering of their fellow countrymen. Activists suggested that these ‘dogs’ were deceived by the pretense of British civility and kindness endowed upon them by their colonial masters who in the end would inevitably face betrayal if British interests came into play. The critique further pointed to the self-deceit that Ugandan elites had been facing because of their identification with the British which insidiously was leading to the loss of control of their own freedoms, self worth and their overall economic disenfranchisement.  

This not only insulted the colonial leadership in Uganda but also attacked the “economic basis of patronage and hospitality which served as a means of ensuring continued power and control by the British administration. The impact that radical rudeness had during this particular period was destabilizing in the sense that it worked to mobilize thousands of people at meetings and gatherings creating the threat of violence and seizing the right to association and freedom of speech, which at that particular time were not recognized as rights in the country. The impact of this type of resistance and activism generated defiance and in turn destabilized the colonial administration, which at that time was considered very effective and progressive. 

Confrontational Advocacy as Weapon to Challenge Oppression and Subjugation

The activism behind radical rudeness has found new stirrings in current day Uganda and has become an effective weapon to challenge the curb on certain human rights such as freedom of speech, freedom of expression and LGBTQ rights, the latter of which have been limited or restricted under Museveni’s rule.  Feminist, activist and poet Stella Nyanzi has publicly challenged power through her many expletive and public tongue-lashings of the President and his family. Nyanzi has for instance referred to the President as a pair of buttocks and has additionally referred to his wife as a “big thighed cow with an empty brain.” She has even gone a step further and written an untitled poem about Museveni’s mother’s vagina graphically describing it in grotesque, disrespectful terms (see poem here). Her latter action however landed her in prison for metaphorically referring to the 35 year oppressive rule by Museveni, but did not however deter her resolve to publicly out her frustration as an activist who wants to see change in her country.  Through all these ongoing developments she has even taken the liberty to further to publish a collection of activist poems that probe gender rigidities, lesbian relationships and miscarriage. The book is entitled ‘No roses from my mouth’ and was published while she was still incarcerated and is a challenge to patriarchy and oppression and the ‘standards of civility of those in power.’ It is clear that the use of this type activism and resistance is destabilizing especially in more conservative societies where certain freedoms such as freedom of expression is frowned upon and suppressed, and where strong cultural taboos exist that defy openly discussing certain topics such as sex, sexuality, and homosexuality. The effectiveness of radical rudeness however in the context of Uganda and through Nyanzi’s activism can be verified on a number of levels. Firstly Nyanzi has certainly made waves both in her country and beyond with her activism gaining a level of notoriety, international renown and support. Most recently she was awarded the 2020 Oxfam Novib/PEN International award for her collection of poems for freedom of expression and in the same vein to demonstrate that the pen is mightier than the sword.  She has furthermore used her activism and advocacy to create impact on the rights of women, LGBTQ rights, and rights attached to sexual freedom. Furthermore she also has also drawn attention to the right to education and its intersections with poverty and thereby the value of education for young women and girls. 

It is clear that the nature of radical rudeness as a traditional or cultural mode of activism is a threatening form of activism to those in power. Its effectiveness as was demonstrated has been tested and found successful in the past and present day context through challenging the rules of politeness and exposing the weaknesses of authoritarian systems of power.  This type of activism can only be achieved through the strength and courage of a few who are willing to place their lives and bodies on the line by championing systems fraught with inequality and oppression. An activism of this type mobilizes awareness, creates power and causes political shifts. It is a true ode to the right to freedom of expression. 

Posted by Ingrid Roestenburg-Morgan

 

Sudan: Prospects of Justice after the Downfall of Al Bashir

Sudanese Protesters During 2019 Protests

Sudan is one of the largest and diverse countries in Africa. It has also witnessed the longest civil war on the continent. Ever since 1989, it has been synonymous and has come to be known as a country suffering from violence and grave human rights violations including genocide, war crimes and crimes against humanity.  From this period it has also been governed by the most notorious Islamist political party, which has essentially relied on the principle of divide and rule. As a result, millions of innocent people have either been killed or forcibly displaced or fled the country over the past three decades.

Most recent events in Sudan defy logic and reason if one takes into account the country's background and historical context. The recent demonstrations have been the most massive demonstrations that modern statehood has ever experienced. The attempt to peacefully overthrow the Islamic regime in Khartoum started in 2013 and led to more drastic demonstrations in December of 2018 when more than 80 protesters were killed and hundreds injured.  

Al Bashir, the now ousted president of Sudan has always been a prominent figure in the infamous international Muslim Brotherhood organization and a pivotal leader in the branch of Sudan’s so-called National Islamic Front. Currently Al Bashir is wanted by the International Criminal Court (ICC) for serious and grave crimes committed in the Darfur region where since 2003, notwithstanding the thousands of refugees in neighbouring countries, more than 300,0000 people have been killed, and over 2.3 million internally displaced.

As one of the longest serving presidents on the African continent it was the Muslim Brotherhood that brought Al Bashir to power over 30 years ago in a coup originally orchestrated by the well-known brotherhood leader Dr. Al Turabi. The Muslim Brotherhood was a highly organized and elitist organization and its Sudanese branch was established by a group of students in 1949. Sudan has since been ruled for 30 years by the Muslim Brotherhood organization whose values have become deeply embedded and entrenched in almost every area of the Sudanese society.

The Challenges

The challenges facing Sudan in terms of peaceful transition were myriad. Firstly, existing political parties that were oppressed for the past thirty years were now dealing with the biggest demonstrations taking place in the 21st century. These political parties have faced continued threats from the Muslim Brotherhood and were particularly fearful that a new military coup would ensue. It was thus initially considered unlikely that a transitional agreement would be reached whereby a competent leadership would take over power during take over during the transitional period. Without credible leadership it remained questionable whether issues of peace and justice could be adequately and effectively addressed.

Secondly, in terms of grave crimes and gross human rights violations committed in Darfur, including the Blue Nile and Nuba Mountains, victims have been waiting for justice for a very long time and the question on everyone's minds was how would it be possible to deliver justice adequately and effectively enough, in the given situation. The conflict has seen millions of people who have been forcibly displaced into IDPs, and thousands who have fled the country with over a million that have been killed in the above mentioned regions over the last two decades. The challenge was how to deliver justice to such a significant number of victims and how to ensure for the effective prosecution of thousands of perpetrators in light of a weak, incompetent and corrupt judicial system?

Finally, there was the difficulty of achieving lasting peace in the destroyed regions in the country. Given the fact that several rebel forces with different capacities and interests were functioning in and out of these regions for roughly almost two decades the difficulty was further compounded by the necessity of securing a comprehensive peace agreement that would encapsulate the crimes committed by these armed forces and groups.

The Situation Until Recently 

After nearly thirty years of oppression, appalling injustice, and poverty that resulted in generations who were deprived of their inherent rights such as the right to vote, the right to life and the right not to be tortured, a major shift in political power took place in Sudan when protests began in December of 2018. People from different walks of life protested continuously for eight months in an attempt to put an end to the vicious and historical cycle of civil war, poverty, and oppression.  Sudanese people were for the first time very vocal on their natural rights and recognized the collective power they held which would enable them not only to overthrow the existing dictatorship but also assist them in deciding on the future of their country.  

The thirty years of Muslim Brotherhood dictatorship was not only devastating to the Sudanese people, but it also destroyed almost every element of civil society and civic administration in Sudan leading to weak political, legal and educational systems consistent with the Brotherhood ideology.

In terms of Sudan’s national legal system it has been significantly altered to fit the Brotherhood ideology with Sharia law being the prominent and primary law in Sudanese society. Based on the nature and scope of the crimes committed in certain regions such as Darfur; the Sudanese legal system as it stands would in its current state be incapable of addressing crimes of such a magnitude. From the crimes codified and criminalized there is no mention of the crimes of genocide, crimes against humanity or war crimes in the Sudanese legal system leaving no space and indication in the existing legal system on how to address these grave crimes. The legal system in other words would therefore be incompetent and unable to guarantee the fundamental rights of both the victim and defendant. For example problematic issues would arise as to the integrity of judges, transparency and the feasibility of ensuring a robust and fair criminal trial. 

Future Transition and Hope in the Country

Following the ousting of Al Bashir in April of 2019, Sudan embarked on a transition to civilian rule over period of 39 months.  The current transitional government has been mandated through a Constitutional Declaration to reach a comprehensive peace agreement and to deal with the numerous conflicts and systematic problems within the county. Also there has been provision made for an independent commission on transitional justice to investigate the issues thoroughly. Currently there has been criticism and divergent views on how to achieve justice in Sudan and progress has been slow in developing a robust transitional justice mechanism capable of adequately addressing justice concerns in the country. In order to ensure for a robust and adequately functioning transitional justice mechanism past experience from other transitional justice contexts dictates and reveal that within the framework of such a mechanism prosecutions are critical. Aligned with effective prosecutions local justice initiatives that resonate with the local population must be capitalized on for legitimacy and maximum purpose. Additionally capacity building and the strengthening of national institutions remain critical as well as recognition of the relevance of truth telling and reconciliation processes. In achieving such a model it is incumbent upon those driving such a process to have the political will and a measure of independence to see an adequate level of justice done. It is only with these elements in place that true freedom; peace and justice may be achievable for the people and survivors in Sudan.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.

 

 

The Blame Game: The ICC, UNSC or States Parties?

Over the last couple of years, the International Criminal Court (ICC) has been criticised as biased, selective, and has been queried about its targeting of only weaker States, such as African States. The purpose of this blog is to address the question viz. what are some of the current problems or tensions underlying the failure of states parties to cooperate with the ICC in good faith as enunciated and expected under the Rome Statute? This blog piece starts by assessing the reasons behind the failure or the unwillingness of some States parties to cooperate with the Court as stipulated in the Rome Statute. Furthermore, part of this analysis will explore the tension between the Court and African States regarding cooperation.  

The Court has often reiterated that it is a judicial entity and not a political body in any sense. For instance, in 2006, former president, Philippe Kirsch, of the Court publicly stated that "there is not a shred of evidence after three-and-a-half years that the Court has done anything political. The Court is operating purely judicially". However, some argue that in the context of the political concept of a friend-enemy dichotomy, the Court has used this dichotomy as a weapon in political struggles. The Court has jurisdiction over the most serious crimes of concern, and as such the Court labels some suspects as the enemies of mankind, whilst others who cooperate with the ICC they are portrayed as the friend of humankind. Furthermore, the Court has provided the opportunity to label certain political actors as not merely its enemies but as the abusers of universal norms and the enemies of mankind.

Moreover, one of the major criticisms has also been about the selectivity of situations to prosecute. Some scholars argue that most of the cases investigated by the Court has been selected by the prosecutor based on his or her discretionary power, except the situations of the western region of Sudan-Darfur, and self-referral situations, such as Uganda, Mali, and Congo as well as Central Africa. Since the Prosecutor does not have the obligation to accept a self-referral, it is equivalent to the situation selected by prosecutor, as in the case of  Kenya. The issue of independence of the prosecutor has been questioned, due to the fact that that the Office of the Prosecutor has mainly focused on African cases and overlooks other international crimes committed in different parts of the world such as Israel, Iraq or Afghanistan and others.

In this regard it would be reasonable to distinguish between the Court as an independent entity and the prosecutor as an individual with their own ambitions and perspectives. One might argue that the prosecution has the discretionary power, and thus, such power could be politically misused. In effect, the exercise of the prosecutorial discretionary power might often be associated with political considerations. However, it does not change the fact that there remains a distinction between the Court as an entity and individuals in persons. For instance, the former AU commission chairperson Jean Ping coined this well when he said, “frankly speaking, we are not against the ICC. What we are against is Ocampo’s justice”.

It is evident that there is a moral ambivalence in international politics and the Court is not an exception in this regard. Behind the creation of the Court, there have been genuine forces tirelessly working and hoping for a just and more balanced world. Furthermore, politicians are the same whether Europeans or Africans; they may cooperate with the Court whenever it serves their interests and similarly can turn against the Court when it proves to be not in their favour. For instance, one may think of the decades of work that has gone into the establishment of the International Law Commission, the advocacy efforts NGOs in support of the Court, and the intellectual legal debate that resulted in the Rome Statute. There is no doubt that the content of the Statute is one of the greatest achievements in international legal history.

In conclusion, although criticisms against the Court are important, it should be borne in mind that the Court is not operating in isolation. The Court significantly impacts the field of international law and itself is impacted by the failure of the international community particularly states to cooperate with it in every instance. For this reason, the lack of enforcement mechanisms is something that the whole international legal order struggles with. The possibility of armed conflicts ending in the near future seems remote, and if history teaches us one lesson it is that at the end of every armed conflict the international community is either left powerless and thus seemingly  indifferent. It is imperative that the deterrent effect of the ICC is not diminished or downplayed in order for justice to prevail.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.

 

 

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