Interview with Nazila Ghanea

Late last November, as President Hassan Rouhani passed the mark of 100 days in office, he delivered on a key election promise and published the initial draft of the citizens’ rights charter. Within a few weeks the U.N. General Assembly, which had adopted a resolution on the situation of human rights in Iran expressing serious concerns about ongoing abuses, praised Rouhani for plans to implement the charter.

But the draft has also met with great criticism from human rights activists and organisations. Human Rights Watch wrote a letter to the Iranian president recently, applauding his “efforts at identifying human rights as a priority issue” but said it had “serious concerns” about the charter, its content and its implementation.

Rouhani himself asked for feedback. “I invite our people & legal experts in particular, to review this draft & propose improvements and provide feedback on the Charter of Rights,” he tweeted in November.

Earlier this month, Nazila Ghanea, professor of international human rights law at the University of Oxford, wrote a critique of Rouhani’s rights charter, warning that without major revision it “will only serve to camouflage continuing and serious human rights concerns.” We talk to her here about the draft charter, what it bodes for human rights in Iran, and the flaws Ghanea sees in the language.

Rouhani has made an effort to bring human rights to the center of his administration, at least at the level of rhetoric. How do you assess the situation of human rights in Iran since he took office last August?

I don’t underestimate the importance of rhetoric, human rights rhetoric can filter down, win supporters and lead to changed approaches. However, all the indicators we have suggest that the situation of human rights in Iran has regrettably deteriorated since August. The number of executions has gone up, attacks on minorities have gone up, restrictions on journalists have increased. A few populist moves have been announced as being on the agenda, though. The possible release of the two former presidential candidates and their wives after four years imprisonment, the reopening of the ‘House of Cinema’ and of course the release of Nassrin Sotoudeh and a few other prisoners. These are of course welcome. However, we should not lose our perspective and our values or measures. These steps are good but they are only a partial correction of a deep system of injustice. We cannot be indebted to the authorities for the release of an upright lawyer who needlessly suffered three years of imprisonment and separation from her toddler and the rest of her family, especially when hundreds of innocent others remain behind bars.

In your view, what has prompted Rouhani to work on a citizen's rights charter?

The context outlined above already offers some indications of why. We could simply say that President Rouhani is working on the Citizens’ Rights Charter because he promised to do so during his campaign. Beyond that, though, it can create provide a ‘feel good’ atmosphere for a while and be declared to international fora as an indicator of a new environment. There are international academic studies that have shown that human rights announcements (such as the ratification of international treaties, or here the crafting of a new Charter) buy regimes several years of congratulatory welcomes before the international community really starts assessing whether there has actually been any positive domestic effect whatsoever. More worryingly, these studies suggest that regimes may use such human rights announcements to buy time, sometimes during periods of calculated/planned violations of human rights.

Iran has ratified a number of intertnational human rights treaties and covenants. So what underpins the need for a specific citizens' rights charter?

Of course, it may be stated that the Charter is not intended to have legal effect so it cannot violate provisions of the human rights treaties Iran has ratified. However, since the Charter is intended to declare the human rights priorities of the Presidency for the next four, maybe eight, years, and since the presidency is tasked with implementing the Iranian Constitution, we cannot neglect it. There is a general contradiction between the Citizens’ Charter and the provisions of the UN human rights treaties that Iran has ratified, and then there are also a whole host of specific violations.

Three of the key general contradictions are that the Charter restricts itself to Iranian nationals whereas human rights commitments apply to all those within a state’s jurisdiction, regardless of status. There are only very narrow restrictions in this regard. For example a tourist would not enjoy the right to stand for election. In Iran, the main ‘losers’ of this confinement of rights to nationals is millions of Afghans who fall outside the purview of the Charter. The second general contradiction is that the grounds of discrimination are very narrowly and purposefully crafted and go against 65 years of international protections, which Iran voluntarily legally committed to. Thirdly, are the 50 or so limitations or restrictions on rights. All human rights treaties and charters contain limitations, but they first clearly outline the right and guarantee it, and only then do they set out very narrow limitations. Limitations to human rights should not be open to vague interpretation, they should not be stated alongside the clear statement of the scope of the right, and they should not leave room for abuse. For example, the UN Human Rights Committee has outlined that

“Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed ... [Limitations should] be strictly interpreted ... Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. The Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations ... for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.” (General Comment 22, paragraph 8).

See the level of precision required of limitations, and the effort required to ensure that limitations do not lead to discriminatory outcomes. This protection against discriminatory outcomes goes so far as to outline that even limitations on ground of ‘morals’ cannot draw from a single tradition.

In contrast, here we have a Charter that mentions limitations more than 50 times, every time on grounds whose impact is not clear and is prone to discriminatory outcomes. I won’t list the specific violations that result from the Charter, but there are many and a few have been outlined in the article.

Has Rouhani's citizens rights charter advanced or improved human rights in Iran in comparison to the existing laws and the Iranian constitution?

Frankly, ‘improved’ is too strong a word. Furthermore, advancements and improvements in human rights always need to be shown in action on the ground and not in declaratory flurries. Nevertheless, we should welcome the fact that the Charter gives attention to, for example, the need for green spaces, to youth, to the environment and to communities.

Which group of ethnic, religious or sexual minorities or other social groups are particularly ignored in Rouhani's citizens rights charter?

The Charter’s reference to groups and minorities is indeed very limited and confined to the usage of the terms in the Constitution of the Islamic Republic of Iran. When using the term religious minority, it ensures that it specifies recognized religious minority in line with article 13 of the Constitution. In all other contexts it uses the term‘mazhab’minorities, i.e. fellow Muslims from other schools of thought. It also outlines rights applying to ethnic minorities. We should not forget that Muslims belonging to other schools of thought, ethnic minorities and recognized religious minorities also suffer enormous discrimination in Iran and if the Charter takes strides to ensure non-discrimination and equality even just for them, that in itself would be very welcome indeed. However, that would still leave much discrimination and persecution untouched.

We know that the term minority is being used much more expansively at the international level, though there are of course other states that also distance themselves from the term too. ‘Minority’, in international human rights law usage, refers to persons with distinct characteristics – such as religious, linguistic or ethnic characteristics – that they wish to maintain and minority rights and provisions are there to allow them to do so on an equal footing with others. When those characteristics are those of the majority, many legal, political and societal pillars uphold them. Minority rights allows that same continuity of characteristics for persons belonging to minorities.

Iranian officials often accuse the West of imposing its values on other countries, especially Islamic countries. They say gay rights are a Western issue not a universal concern, for example. What makes human rights universal?

Sixty-five years ago the international community adopted the Universal Declaration of Human Rights (UDHR). Iran was a member of the Commission on Human Rights which undertook the drafting of the UDHR. Iran also voted in favour of the adoption of the UDHR in 1948. Article 2 of the UDHR states something that I think is at the heart of universality:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

This has, of course, found its way into tens of other binding legal standards which are also binding on Iran. From the outset, therefore, the foundational idea of human rights was that they apply to all of us without distinction and regardless of borders. This, I believe, is the heart of universality. Particular religious, cultural and national nuances can exceed the minimum guarantees of human rights and shape and colour them, even make them more compelling. For example, the Islamic obligation of charitable giving can provide for us to go beyond the minimal guarantees of economic and social rights captured in international standards. However, universal rights should never be undermined by such particularities.

Iranian officials often accuse the West of hypocrisy when they accuse Iran of grossly violating human rights. They say the West ignores human rights conditions under an ally regime like that of Saudi Arabia while highlighting concerns in countries that happen to be political foes. Is there anything to such claims?

If we take the countries of particular concern to the UN Human Rights Council – with specific experts designated as Rapporteurs to report on their human rights situation – then we see that there are 15 such countries of concern including Iran. The 15 are: Belarus, Cambodia, Central African Republic, Cote d’Ivoire, Eritrea, Democratic People’s Republic of Korea, Haiti, Mali, Myanmar, Palestinian territories occupied since 1967, Somalia, Sudan, Syrian Arab Republic and the Islamic Republic of Iran. These mandates are generally set up on the basis of detailed domestic human rights information and fiercely contested by the different UN member states, so it is hard to be dismissive about the political motivation of the 47 member states of the UN Human Rights Council and the 193 member states of the United Nations voting in the General Assembly. After all, what would the political motivation of 193 states even be?

If the point is that the ‘accusations’ of the spokesperson of any particular state is politically motivated, then there is no doubt that self interest, political motivation, trade interests, regional and neighborly relations, etc. all play a role here; as indeed it does for the Islamic Republic of Iran.

Iran's judiciary chief recently criticised those who say death penalty should be abolished, saying Islam dictates qisas and that those who say death sentence should be abolished are contravening Islam. How do you view his comments?

One could merely point out that there are other Islamic views on this question and indeed very diverging practices, both in the current period as well as historically. Three well-articulated Islamic interpretations come from Professor Khaled Abou El Fadl of UCLA, Professor Abdullahi Ahmad An’Naim of Emory University and Professor Mashood Baderin of SOAS. Merely taking the question of evidentiary requirements seriously may lead to the conclusion that the death penalty should at least be sharply reduced, even if not absolutely abolished. There is a very healthy debate to be had here, even within a strict Islamic framework.

If you were to list the top five worst human rights violations in Iran, which areas would you select?

I’m afraid I’ve always criticized hierarchies of rights, and I’m going to resist it here. But if I was going to comment on the 5 worst impediments that contribute to human rights violations in Iran, then perhaps I would outline the following:

The absence of the political will for the creation of a society based on respect and equality for all and the enjoyment of human rights by all living in the jurisdiction of the Islamic Republic of Iran

The limitations that lie within the framework of the Constitution itself

The absence of the rule of law, an independent judiciary and equality before the law

Neglect of the need to overturn deeply-embedded prejudices, divisions, exclusions and inequalities from the societal level upwards

Lack of acknowledgement for the need to reframe society on the basis of humanity rather than power, inclusion rather than exclusion, consultation rather than violence, and on the basis of mutual respect and essential unity.

Such measures would not be ‘western’, ‘alien’, ‘politically motivated’ or non-Islamic. They would be both entirely Iranian and entirely human.