JINEL's goal is to emphasize and critically analyze all legal issues—social, political, civil, historical, economic and commercial—that are of particular relevance to Muslims and Near Easterners in both Muslim and non-Muslim societies.
Volume 18, 2020
Table of Contents
This Essay focuses on Beijing’s repression of its Uigher population, a religious and ethnic minority community residing in northwest China. Recent human rights violations have attracted significant attention among journalists, activists and policy makers. Still, this writing argues that Beijing’s tactics reflect worsening human rights violations spanning decades rather than years. In addition to providing historical context, this Essay makes an important contribution to existing literature because it applies Interest Convergence Theory to the instant context. Insofar as its laws, policies and practices create fertile breeding grounds for violent extremism locally and internationally, it is in Beijing’s strategic interest to respect, protect and advance human rights for all citizens.
This Article examines the constitutionality of an Israeli bill that criminalizes the use of PA systems in prayer houses, punishable by a fine of 5000–10,000 NIS (the Muezzin Law). The Bill was presented to the Israeli Parliament (the Knesset) as a religiously-neutral environmental law. This Article asserts that a careful reading of the Bill’s language reveals that it is specifically tailored to apply precisely to Muslim prayer houses, thus criminalizing the Muslim call for prayer (the adhan), especially the call occurring between dawn and sunrise (the Fajer adhan). As such, we perceive the Muezzin law as violating the right to equality and the right to dignity of the Muslim minority in Israel, as well as infringing upon its religious feelings. Additionally, we contend that the Muezzin Law is not truly driven by environmental concern, but rather that it represents a conflict with religious dimension (a CRD)—namely, the perception that the adhan, as a Muslim symbol, poses a threat to the identity of Jews in Israel. Examining the constitutionality of the Muezzin Law introduces a crucial question relating to the interplay between constitutional law and criminal law. Our assertion is that in any constitutional democracy, in order for the legislature to validly classify conduct as a crime, such criminalization must befit the values of constitutional democracy, serve a proper purpose, and be proportionate. The requirement for proportionality consists of three subtests: (a) the rational connection test; (b) the necessity test; and (c) the balancing benefits test. It is our contention that the Muezzin Law comprises an unconstitutional criminalization of the Fajer adhan. It stands in contrast with the basic values of constitutional democracy, primarily that of tolerance towards a religious minority, particularly, the Muslim community. Additionally, we assert that the Muezzin Law’s purpose is improper as it aims at infringing upon the religious feelings of the Muslim minority in Israel, holding that the value of protecting religious feelings is a constitutional value. Finally, we view such criminalization as provided in the Muezzin Law as being unproportionate. In this latter regard, we hold the view that our CRD analysis provides a more delicate, proper, and proportionate solution to the question at stake.
The international human rights movement is facing an existential crisis—a crisis created in part by its continuing failure to adequately address strong criticism that international human rights law (IHRL) is a form of cultural imperialism designed to destroy local religion and culture. While the debate underlying the crisis is not new, the strength of its threat to IHRL and the liberal democratic order is. One of the primary points of friction is over IHRL’s seeming rejection of a group right to be governed by religious or cultural law—a right IHRL proponents fear would open the doors to discrimination against women, the LGBT community and nonconformists. Already, populist leaders like President Erdogan of Turkey have been able to capitalize on a combination of demands for a role for religion in governance and frustration with economic inequality to claw back on human rights and democratic guarantees.The debates surrounding group rights have reached an impasse that will do little to promote either human rights or greater respect for religion and culture. This Article seeks to break that impasse. First, it relies on progressive Muslim and African scholarship to tear down the assumptions shared by both IHRL and group rights proponents that make the impasse seemingly intractable: (1) that religious and cultural law are determined from the top down; and (2) that they demand total submission of their followers. Having debunked those assumptions, it then challenges both groups to consider whether a theory of substantive human rights could allow countries to guarantee individuals the right to feely and equally choose whether to be governed by religious or cultural law without risking that this choice will become a ruse for favoring the majority group or for subjugating women and vulnerable groups.
Unlike other areas of law, where rules have either been borrowed from Western regimes or only apply to certain segments of society, Saudi family law touches every member of Saudi society, from ordinary citizens to royalty, and originates in an Islamic legal tradition that predates most modern legal systems by several hundred years. Nonetheless, most writers on Saudi Arabia (the Kingdom) have largely neglected the role of Saudi family law in influencing the Kingdom’s royal family and policymaking, despite the dominance of family businesses, tribes, and family offices in the Saudi economy and state. This Article outlines how Saudi family law produces economic incentives that, without reform, make the maintenance of political stability in the Kingdom unlikely past three generations.Accordingly, this Article can be understood as an alternative and supplement to the dominant political science theory for understanding Saudi policymaking, Rentier State Theory (RST). Specifically, this Article demonstrates how the incentives produced by Saudi family law can more accurately predict Saudi policymaking and disruptive political events than RST, including, but not limited to, the Kingdom’s Ritz-Carlton purge and building of largescale commercial real estate projects, which might otherwise appear irrational to outside observers. The Article begins with a discussion on the mathematics of polygamy in the Kingdom and ends with a discussion of how the incentives produced by Saudi’s family law system produce far-ranging implications for both the Kingdom’s neighbors and its current allies, including, but not limited to, the United States and Israel. The Article concludes with legal reforms that the current Saudi state may wish to undertake, should it wish to avoid a similar fate to the previous two Saudi states, both of which collapsed in under three generations (1744–1814; 1824–1891). Additionally, reforms suggested over fifty years ago by Saudi prince Talal bin Abdulaziz Al Saud are analyzed, as well as various legal customs found within Jordan, which Saudi policymakers may wish to borrow from and modify to provide the Kingdom increased political stability in the longer term.
Globalizing Anudo v. Tanzania: Applying the African Court’s Arbitrariness Test to the UK’s Denationalization of Shamima Begum
Under international law, every individual has the right to a nationality. States reserve a sovereign right to deny or revoke citizenship, but only insofar as these practices respect their international legal obligations, including the prohibition of arbitrary deprivation of nationality. In the 2018 case of Anudo v. United Republic of Tanzania, the African Court on Human and Peoples’ Rights applied an arbitrariness test based on, inter alia, an interpretation of the Universal Declaration of Human Rights to determine whether or not Tanzania had arbitrarily deprived the petitioner of his nationality. This Comment considers the potential of applying Anudo’s interpretation of the UDHR in other regional and national contexts. Specifically, the Comment applies the four elements of the Anudo arbitrariness test to the case of Shamima Begum, who joined Daesh (also known as ISIL, ISIS and IS) in Syria as a teenager, and whose British citizenship was subsequently stripped in 2019. Under the Anudo test, deprivation of nationality will be arbitrary under international law unless it: (i) is founded on a clear legal basis; (ii) serves a legitimate purpose that conforms with international law; (iii) is proportionate to the interest protected; and (iv) installs procedural guarantees which must be respected, allowing the concerned to defend themselves before an independent body. The Comment determines that the United Kingdom’s decision to deprive Begum of her nationality for national security purposes fails to satisfy the test outlined in Anudo for nonarbitrary denationalization, thus rendering the Home Office’s decision unlawful under international law. This analysis leads to wider implications for the arbitrariness of deprivation of nationality as a counterterrorism strategy within and beyond the UK, warning that if states continue to conduct arbitrary deprivations of nationality for purported national security purposes, they could continue to exile individuals based on unconfirmed allegations, perpetuate a system of racial exclusion, violate universal standards for human rights protection, and potentially exacerbate the exact threats the State purports to be fighting.