by Bill Sundhu
How do human rights accommodate our human diversity? Do human rights respect culture? The case of Hawa Greou, a woman of Malian descent, sentenced to 8 years by a French court for circumcising 48 girls raised such questions and pitted French law against African custom.
The Universal Declaration of Human Rights was devised to universalize equality and rights for all human beings. It began to change our way of thinking about our common humanity and our human differences. The mass experiments of the 20th century to create a “new man”, in Germany, Russia, China and Cambodia involved eradication of certain groups and identities. Human rights do not operate in the abstract. They arose to protect men and women in all their difference of language, history and culture. They intend to express a shared humanity based on equality and respect for our uniqueness and difference. Natural law philosophers advocated against injustice by pointing to universal rights.
Not all rights, however, are equal or universal. “The Vienna Declaration recognizes a number of special categories, such as women, children, minorities, indigenous people, disabled persons, refugees, migrant workers, the extremely poor and the socially excluded.”1 In affirming the universality of human rights, it added qualifications such as “the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.”2 The cultural relativist position asserts that the diversity of views and autonomy precludes the imposition of standards on other cultures or states. Conversely,
On their face, human rights instruments…are surely on the ‘universalist’ side of this debate. The landmark instrument is the Universal Declaration of Human Rights, parts of which have clearly become customary international law. The two Covenants… also speak in universal terms: ‘everyone’ has the right to liberty, ‘all persons’ are entitled to equal protection, ‘no one’ shall be subjected to torture, ‘everyone’ has the right to an adequate standard of living. Neither…of these basic instruments make any explicit concession to cultural variation.3
ICCPR, Article 7, prohibits “ torture or cruel, inhuman or degrading treatment” and Article 4(2) allows for “no derogation.” Article 2, prohibits distinction based on sex. The Convention on the Elimination of All Forms of Discrimination Against Women, in Article 5(a), provides states “shall take all appropriate measures: To modify the social and cultural patterns…the elimination of prejudices and customary and all other practices…based on the inferiority or the superiority of either of the sexes.” The convention also makes provision for “health care.”
The Declaration on the Elimination of Violence against Women, in Article 4, precludes “any custom, tradition or religious consideration to avoid obligations.” Article 2 states “Violence against women shall be understood to encompass…(a) Physical, sexual and psychological violence occurring in the family, including…female genital mutilation and other traditional practices harmful to women.”
International institutions and instruments recognize the importance of cultural contexts and diversity. Article 31 of the ICCPR provides that elected members of the Human Rights Committee include “representation of the different forms of civilization and of the principal legal systems.” ILO Convention 169 on Indigenous and Tribal Peoples4 refers in the preamble to “removing the assimilationist orientation” and “the cultural diversity and social and ecological harmony of humankind.” Article 2 requires protection and full realization of rights and Article 5 mentions, “social, cultural, religious and spiritual values and practices” be recognized and protected.
States have the right of reservations to treaties to allow some exemption from legal obligations. Nonetheless, the challenge to the universal approach of equal rights and application to “everyone” has continued. Even the most ardent defenders of the universalist approach acknowledge some necessity of flexibility given different contexts.
Freeman states “Universalism can recognize diversity in two ways:
- by insisting that some moral rules apply in all cultures, despite their diversity;
- by explaining how universal principles may require diverse interpretations
applications in different social contexts: the right to a fair trial, for example,
does not require identical trial procedures in all countries.5
It has been suggested that the idea of human rights is based on a western idea of liberal individualism. This criticism contends that human dignity and the advancement of civilization can be developed and enhanced by local culture or interpreting rights in a culturally specific way. Others criticize universal human rights by saying “that rights only make sense in the context of a particular kind of society – an ‘ethical community.’6 Brown writes:
Liberal societies of the last 150-200 years have indeed been the freest and most generally congenial societies known to history, but not because they have been constructed on the basis of rights; their success has been based on features within them that pointed towards a different, less individualist, context for political action…because these societies were…ethical communities…rights were widely honoured and respected…7
He contends that rights arise from a “functioning ethical community and not as a phenomenon that can be taken out of this context and promoted as a universal solution to the ills of an oppressive world.” and goes so far as to say, “societies in which human rights are respected are more civilized and secure than those in which they are not.”8 A gentle way of encapsulating this argument is that the advocacy and legalization of human rights rings hollow and subordinate to major power politics. That underlying conditions, including philosophical and cultural problems, are not right in many societies and pushing too hard risks not only a backlash, but discrediting of human rights.
“Ethical relativism is generally conceived as standing at the opposite pole from absolutism, which is the position that there is a set of moral principles that are universally valid as standards of judgment.”9 The American Anthropological Association, Statement on Human Rights10 stressed respect for cultural difference and human rights must take into account individuals are members of a group whose “modes of life” shape their values and personality. It was critical of “white man’s burden” and “primitive mentality” attributed to colonialism. It advocated that while any human rights Declaration “must be of worldwide applicability. It must embrace and recognize the validity of many different ways of life.”11 The statement noted, “the scientific fact that no technique of qualitatively evaluating cultures has been discovered” and “Even the nature of the physical world, the colors we see, the sounds we hear, are conditioned by the language we speak, which is part of the culture into which we are born.”12
The Statement came under harsh criticism, such as “either we tolerate everything, and keep hands off…Where shall the line be drawn?”13 Others contended, “cultural relativism was introduced in part to combat…racist, Eurocentric notions of progress.”14 The Statement placed value on culture and recognized its consideration in defining human rights. The 1999 Declaration stated: “People and groups have a generic right to realize their capacity for culture…so long as such activities do not diminish the same capacities of others.”15 Engle concludes, “It calls for a right to difference and then places limits on it.”16
A difficulty with the argument for culture arises in the area of the universality of women’s rights and clashes over violations. Culture itself is not static. There are competing versions and groups within a culture. “Globalization has led anthropologists to rethink, not just relativism, but ‘its underlying assumption of culture as a homogenous, integral, coherent unity.”17
Culture involves the concept of collective or group rights. This is pertinent with the advance of multiculturalism and rights of indigenous peoples – although the latter likely consitute a special category. Kymlicka characterizes this as “ group-differentiated…why members of certain groups should have rights regarding land, language, representation, etc., that the members of other groups do not have.”18 The ICCPR, in Article 27, provides a legal basis for protection of minority rights to “persons belonging to …minorities…to enjoy their own culture, to profess and practice their own religion, or to use their own language.” Rights have tended to be viewed as granted to individuals, even as an individual may be a part of a group. The collective nature of human identity appears to have recognition, for example, in the Genocide Convention, to encompass “a national, ethnical, racial or religious group.” Thornberry observes, “through the shared consciousness of its members, manifested perhaps through language, culture, or religion, a shared sense of history, a common destiny. Without this ‘existence’ it is possible to say individuals live but the group does not.”19 Minorities experience persecution in times of upheaval or transition and seek protection. The nature of such protections or rights for full realization of culture or practices creates conflicts between individual and group interests and for governments.
Ignatieff states, ”the ultimate purpose and justification of group rights is not the protection of the group as such but the protection of individuals who compose it.”20 How then to reconcile individual human rights, with those claimed by a minority, and those expressed by a democratic majority? Jovanovic suggests a “test of proportionality”, “compelling interest” or “minimum impairment interest.”21 Kymlicka advocates refusal to tolerate “illiberal cultures” which may permit protection of women from certain human rights violations. It also raises the question of “whose culture” and “right of entry and exit.”
Volpp challenges the feminism versus multiculturalism discourse, of gender subordination as embedded only in certain cultures and points to other contributing factors that shape the lives of women and cultural practices. “Our culture is not constructed within ‘hermetically sealed’ boxes that travel with us from cradle to grave.”22 We have much to learn from each other and the “insistent focus on immigrant and third world women as victims also leads many to deny the existence of ‘agency within patriarchy,’ ignoring that these women are capable of emancipatory change on their own behalf.”23 “West is Best” generates a backlash from criticized communities and groups. This is exploited by vested interests whose resistance is portrayed as a protecting a culture and keeps women vulnerable to the “binary logic.” It becomes complicated with FGM because some of strongest defenders of the traditional practice are women.
An-Na’im and Ghanea identify the pervasive influence of Islam and that advancement of human rights is best developed through existing societal frameworks. Na’im says, “human rights violations reflect the lack or weakness of cultural legitimacy on international standards in a society.”24 Ghanea points to the necessity of an “emancipatory” interpretation of (Islamic) traditions. Both caution a backlash if human rights are seen as an attack on Islamic tradition. This poses yet further challenges to the universalist approach, including women’s rights.
Increasingly, we live in multi-ethnic and multicultural societies. How people should live with their differences challenges us. Cultural identity is important to us, but it is not alone in our influences. Class, race, religion, gender and economic status also determine who we are. It is erroneous to view culture as homogenous. There are many variations within a “culture.” Moreover, culture is ever changing to different influences.
Amartya Sen asserts, “cultural freedom has to be distinguished from the celebration of every form of cultural inheritance…the focus has often tended…on the need for cultural conservation. Cultural freedom may include…the liberty to question the automatic endorsement of past traditions.”25 He warns against “tyranny of conformism” that may be used to control the lifestyle choices of individuals. He posits nothing can be justified in the name of freedom without meaningful opportunity to people to exercise that freedom. For example, controlling the freedom of a young woman from a conservative immigrant family for fear she may emulate western behavior, tips the balance in favour of “diversity” at the expense of cultural freedom.26 Individuals do not have a choice into which community they are born. Maintaining it for that sole reason is not an exercise of freedom, without opportunity of choice. He calls for “cultivating of reason” and the need for “scrutinized choice.” Labeling or placing a person within a society neglects the plurality and diversity, itself, of the myriad influences that shape a person. We must resist the “miniaturization of human beings.”27
The benefits of diversity depend on how they are brought about. Multiculturalism has been, at times, reduced to simplification of groups. Multiculturalism can enhance human dignity and equality irrespective of “racial or ethnic origins, language, or religious affiliation.” The goal of diversity and multiculturalism must be linked with integrating and not separating. “Leaders” of certain groups are often male, self-interested and exercising power over the community. Politicians can be too quick to pander to these voices.
The matter of elders is, also, not without controversy. In Canada, some Aboriginal elders have claimed hereditary leadership. This has resulted in conflicts within the community as to who speaks for whom and whose interests are being served. Governments must consult widely and ensure that views are truly representative. Genuine democracy within groups is not a bad thing. A specific culture can be difficult to define. In most liberal states, immigrants are entitled to speak their language at home, teach children a second language, organize as community groups, and practice their religion. These are individual, not group rights. It allows individuals to secure and practice their different cultures. It is an extension of equal rights of citizenship.
France has the right as a sovereign state to enact laws including the prohibition of FGM. It is also a signatory to international instruments that prohibit or espouse the elimination of the practice. The WHO report on FGM states it to be a public health issue. FGM, including infibulation, causes irreparable harm and is reasonable justification for limiting individual or group traditional or cultural practices, long held in some societies. There is ample scientific and medical evidence to deplore the practice. It is the State’s responsibility to protect the physical integrity and health of females. This outweighs any defence of cultural practice. The implications for women are profound.
In Greou, the first complainant was a French woman of Malian descent. It was forced upon her and a serious violation of the physical integrity of the victim. Some might argue, the nature of the forced act was cruel and degrading, a violation of a “fundamental right.” Dozens of girls between the ages of one month and 10 years had FGM performed on them. It was an aggravated case. The judge may have reasoned that a strong message needed to be sent, in imposing an 8-year sentence. It does seem severe when the accused entered a guilty plea and accepted legal responsibility. She also appeared largely immersed and defined by her Malian background and very little by her immigrant experience in her chosen state of France. Still, the 8-year sentence is difficult to criticize given the number, ages of the victims and extent of the procedures.
The Warzazi U.N. report criticizes strongly attempts to dilute the term “female genital mutilation,” since “the practice is a violation of human rights and a form of violence against women. Only this terminology reflects the full seriousness and the extent of damage caused by these practices and captures the element of violence and physical assault.”28 She wrote it was injurious to the physical and mental health of women and children. She noted the Protocol to the African Charter on Human and People’s Rights (Women) and that 16 African countries had passed legislation.
Burkina Faso has severely sanctioned the practice since 1996 with numerous convictions. The government has combined the force of law with public campaigns, trained police and army personnel to intervene, integrated the topic into the school curriculum, provided affected women free health care and engaged civil society against the practice. The number of girls excised has fallen rapidly. Others have suggested media campaigns, income substitution to those who rely on the procedure for income and empowerment for women through alternate rites. International financial aid to poor countries in health services and education is also warranted.
The medical evidence alone is sufficient to justify its abolition. It is a matter of approach. The fact situation herein relates to France. In that context, the decision of the French court is defensible. By the act of immigration a person implicitly accepts being subject to the laws of the adopted country. She also can expect cultural influences and values to be mutually exchanged. This involves an education of human experience.
The Special Rapporteur expressed the idea of being sensitive to the culture, socialization and background of the offender and the act as possibly an expression of cultural identity. A wise Judge ought to do that. The Rapporteur also simplifies an individual act, which involved considerable harm, with the complexity and many factors that instill and create identity. Along with education and representative consultation, the French State has the right and many would say proper justification for prosecuting and obtaining the severe sentence imposed on the facts of this particular case. It cannot be said that justice was not served and valid societal objectives not addressed.