Human Rights 2.0

We’ve been going about this all wrong. As I perused the paper after reveille last Friday, I couldn’t help but feel a mite more morose than usual, a dose more dolorous. Nine AIDS activists in Dakar, in the supposed shining citadel of West African democracy, had been sentenced to eight years imprisonment upon suspicion of homosexual conduct. Even more shocking was the well-worn statement issued by the NGO Human Rights Watch (HRW): merely, that the Senegalese state had violated Article 7 of the UN Declaration on Human Rights Defenders, and that the doctrine of natural rights demanded that the prisoners’ shackles be burst asunder post-haste.

If human rights advocates are to establish a relevant global code of ethics, they must jettison this language of abstract rights in favor of a consensus anchored in the universalist elements of cultures around the world. Advocates must sincerely acknowledge cultural context in order to effectively address issues of common human welfare. The platform of human rights must shift from supracultural abstraction—“universally rational” values which ultimately rest upon Western liberalism—toward intercultural and intracultural pragmatism.

Article 7 of the UN Declaration on Human Rights Defenders asserts that “everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.” The HRW notes that LGBT activists, such as Mr. Diadji Diouf and his colleagues, have a high propensity for victimization via violation of Article 7.

But what does this mean to the Senegalese state and the 94 percent of its citizens following Shar’ia law? To them, gay rights assaults Islamic virtue and communal integrity, and the HRW claims are simply ethical imperialism. Dr. Onuma Yasuaki, University of Tokyo law professor, notes that “for those who have experienced colonial rule and interventions under such beautiful slogans as humanity and civilization”, human rights look like more slogans to rationalize intervention.

Human rights are tough to traffic wholesale. As for the case last Friday, if human rights defenders desire liberties and immunities for the AIDS activists they must engage supportive elements of Shar’ia law, making their advocacy culturally palpable, even though most tenets of Shar’ia law concerning homosexual behavior condemn it. But freedom for the AIDS activists will depend more upon the respect for privacy and due process inherent in Islamic legal culture and scripture than the right for men to have sex with other men.

Only one passage in the Qu’ran explicitly acknowledge homosexuality: “If two men commit unchastity with each other, punish them both. And if they repent and improve, then let them be. Lo! Allah is Relenting, Mericful. (4.16)” Since no method of punishment is indicated, Shar’ia law leaves punishment to the judiciary. In the case of Senegal, Penal Article 319.3 provides that “whoever commits an improper or unnatural act with a person of the same sex will be punished by imprisonment of between one and five years.”

This law, however, has not been invoked much in secular Senegal until now. Generally, as Imam Amadou Kanté acknowledges, homosexuality is treated much like public drunkenness. It is okay, he says, to be drunk in private, but not in public. But he is clear to note that in private or public, Islam does not sanction homosexuality. So why were nine AIDS activists arrested with only lubricants and condoms—standard HIV-prevention tools—as supposed evidence of private homosexual conduct?

The answer is that several authorities are guilty of the same sin as the HRW: disregard for historical and cultural context. Ignorance of the wide history of Shari’a law has permitted judges to antagonize gays.

A study by International Human Rights Committee member Osama Daneshyar finds that Shar’ia law historically protects most private behavior without qualification. It stems from a commandment in the Qu’ran for humility on the parts of would-be prosecutors, namely “Thou Shall Not Spy”. The invasion of a private Muslim residence is ungrounded. Scripture also condemns locking up a prisoner for months only on suspicion charges. Again, this is upon the decree that only Allah “knows the depths our hearts”, rather than secular rights granted to human agents, but international advocates would still be wise to cite and incorporate these elements in their struggle.

Deneshyar notes that there is a clause which permits interference if illicit behavior is of a public nature. The public activity of Diadji Diouf and his colleagues, however, was not homosexual behavior. It was fighting AIDS, a disease for which Senegal receives funds from the World Bank to battle. AIDS strikes people indiscriminant of sexual orientation, and is ironically exacerbated by homophobia.

Overall, the chances of the activists being released are thin. But they are even thinner if cultural context is disregarded. Far in the future there might be a point in which homosexuality can find some immunity within Islam. Indeed, Islam has a tradition of moral universalism which predates most Western discourse on human rights.

For now, if the issue at hand truly is consensus on a universal set of liberties and immunities for the spiritual and material well-being of Mr. Diadji Douifi and his colleagues, then we must move away from supracultural abstraction and blunt application of the language of individual rights, and toward an intercultural, intracultural, and ultimately more democratic pragmatism, toward the creative anchoring of human rights in multiple ways of being in the world.



Raúl A. Carrillo ’10 is a social studies concentrator in Lowell House. His column appears regularly.