World Report 2013: Events of 2012

The Day After

By Kenneth Roth

Two years into the Arab Spring, euphoria seems a thing of the past. The heady days of protest and triumph have been replaced by outrage at the atrocities in Syria, frustration that the region’s monarchs remain largely immune to pressure for reform, fear that the uprisings’ biggest winners are Islamists who might limit the rights of women, minorities, and dissidents, and disappointment that even in countries that have experienced a change of regime, fundamental change has been slow and unsteady. Difficult as it is to end abusive rule, the hardest part may well be the day after.

It should be no surprise that building a rights-respecting democracy on a legacy of repression is not easy. The transitions from communism in Eastern Europe and the former Soviet Union yielded many democracies, but also many dictatorships. Latin America’s democratic evolution over the past two decades has been anything but linear. Progress in Asia and Africa has been uneven and sporadic. Even the European Union, which has successfully made democratic reform and respect for human rights conditions of membership, has had a harder time curbing authoritarian impulses once countries—most recently Hungary and Romania—became members.

Moreover, those who excelled at overthrowing the autocrat are often not best placed to build a governing majority. The art of protest does not necessarily match the skills needed for governing. And allies in ousting a despot are sometimes not the best partners for replacing despotism.

But those who pine for the familiar days of dictatorship should remember that the uncertainties of freedom are no reason to revert to the enforced predictability of authoritarian rule. The path ahead may be treacherous, but the unthinkable alternative is to consign entire peoples to a grim future of oppression.

Building a rights-respecting state may not be as exhilarating as toppling an abusive regime. It can be painstaking work to construct effective institutions of governance, establish independent courts, create professional police units, and train public officials to uphold human rights and the rule of law. But these tasks are essential if revolution is not to become a byway to repression by another name.

The past year offers some key lessons for success in this venture—as valid globally as they are for the states at the heart of the Arab Spring. There are lessons for both the nations undergoing revolutionary change and the international community. Here are a few.

Avoid Majoritarian Hubris

Any revolution risks excesses, and a revolution in the name of democracy is no exception. It is no surprise that a revolution’s victors, long repressed by the old regime, do not want to hear about new restraints once they have finally found their way to power. But a rights-respecting democracy is different from unrestrained majority rule. Frustrating as it can be, majority preferences in any democracy worthy of its name must be constrained by respect for the rights of individuals and the rule of law. Majoritarian hubris can be the greatest risk to the emergence of true democracy.

As the region’s fledgling governments set about drafting new constitutions, no major political actor is proposing to jettison rights altogether. But unlike, say, Bosnia, Kenya, South Sudan, and many Latin American states, none of the region’s constitutions simply incorporates international human rights treaties— the surest way to resist back-sliding because it avoids watered-down formulations and helps to insulate the interpretation of rights from the perceived exigencies of the moment. Many of the region’s constitutions continue to make at least some allusion to Sharia (Islamic law)—a reference that need not substantially conflict with international human rights law but often is interpreted in a manner that threatens the rights of women and religious or sexual minorities.

For example, the controversial new constitution of the region’s most influential nation, Egypt—which was being put to a national referendum at this writing— seems a study in ambiguity, affirming rights in general terms as it introduces clauses or procedures that might compromise them. It has some positive elements, including clear prohibitions on torture and arbitrary detention— abuses that, perhaps not coincidentally, members of the governing Muslim Brotherhood regularly suffered under the ousted government of former President Hosni Mubarak. In article 2, it affirms the principles of Sharia, a clause copied from Egypt’s prior constitution, which is broadly understood to correspond with basic notions of justice, rather than the proposed alternative rulings of Sharia, which would impose strict rules and leave no room for progressive interpretation.

However, the new document contains dangerous loopholes that could cause problems down the line. All rights are conditioned on the requirement that they not undermine ethics and morals and public order—elastic caveats that are found in rights treaties but are susceptible to interpretations that compromise rights. The principles of Sharia are to be interpreted in consultation with religious scholars and in accordance with a certain school of Islam, potentially opening the door to interpretations that run afoul of international human rights law. The right to freedom of expression is qualified by a proscription against undefined insults to the individual person or the Prophet Muhammad. Freedom of religion is limited to the Abrahamic religions, which would appear to exclude those who practice other religions, such as the Baha’i, or no religion at all. Military trials of civilians appear to be allowed for crimes that harm the armed forces, which leaves intact the military’s broad discretion to try civilians. Gender discrimination is not explicitly prohibited, and the state is asked to balance between a women’s obligations toward the family and public work—a possible invitation for future restrictions on women’s liberties. A proposed ban on human trafficking was rejected because some drafters feared it would block the shipment of Egyptian children to the Persian Gulf for early marriage. And efforts to exert civilian control over the interests of the military, whether its impunity, budget, or businesses, appear to have been abandoned.

So for the foreseeable future, rights in Egypt will remain precarious. That would have been true even if even a less qualified document emerged, since every constitution requires interpretation and implementation. But it is all the more risky because of this constitution’s limits on many rights.

Despite these disappointments, it is essential that electoral losers not give up on democracy. That is a dangerous tactic, premised on the view that Islamists, once having taken power by electoral victory, can never be trusted to cede it by electoral loss. When Algeria’s military acted on that rationale by halting elections that Islamists were poised to win, the result was not democracy but a decade of civil war with massive loss of life. It is a perspective that undervalues the potent combination of domestic protest and international pressure that would coalesce to challenge new attempts to monopolize power. Its proponents have a high burden to meet before they can convincingly contend that the prognosis for elected government under an Islamic party is so bleak that a return to the dark days of the past is warranted.

By the same token, electoral victors must resist the temptation to impose whatever restrictions on rights a majority of legislators will support. That is important as a matter of principle: unbridled majority rule is not democracy. It is important for reasons of pragmatism: today’s electoral victor can be tomorrow’s loser. And it is important for reasons of compassion: even those unable to conceive electoral loss should have sufficient empathy to recognize the defeated as deserving of their own freedom and aspirations.

Defend Women’s Rights

As the Islamist-dominated governments of the Arab Spring take root, perhaps no issue will define their records more than their treatment of women. International human rights law prohibits the subordination of people on the basis of not only race, ethnicity, religion, and political views, but also gender. That is, it prohibits forcing women to assume a submissive, secondary status, and similarly rejects a complementary role for women as a substitute for gender equality. As noted, the Egyptian constitution contains troubling language on this subject, and while Egypt’s Supreme Constitutional Court has historically interpreted the principles of Sharia progressively, many fear that more conservative interpretations may now prevail.

Some opponents of women’s rights portray them as a Western imposition, at odds with Muslim religion or Arab culture. But rights do not prevent women from leading a conservative lifestyle if they choose. Rather, the imposition involved is when national or local authorities—inevitably dominated by men—insist that women who want equality and autonomy cannot have it. Calling such rights a Western imposition does nothing to disguise the domestic oppression involved when women are compelled to assume a subservient role.

The need for vigilance is highlighted by the Middle Eastern government that is most notorious for subordinating women in the name of Islam: Saudi Arabia. Once discrimination is entrenched in law, progress becomes extraordinarily difficult, as demonstrated in 2012 by the kingdom’s grudging progress toward recognizing women’s rights by allowing (under pressure) two women to compete on its Olympic team, even though women and girls may not participate in most sports at home. Saudi Arabia did announce that for the first time, it would allow women to obtain licenses to practice law and represent clients in court, as well as the right to work in four new industries, but it did so in the context of a male guardianship system that forbids women from traveling abroad, studying at university, seeking a job, operating a business, or undergoing certain medical procedures without a male guardian’s consent. Strict gender segregation prevails in all educational institutions and most offices, restaurants, and public buildings, and women still may not drive.

A small group of Saudi women have made clear in social media that they see these restrictions as unwelcome impositions by male authorities. The Saudi and other governments should recognize that a desire for autonomy, fairness, and equality is shared by many women in all parts of the world—including their own countries—and that the invocation of culture, tradition, and religion cannot justify denying them these rights.

Protect Freedom of Speech

Electoral majorities are also tempted to restrict others’ rights when speech is seen to transgress certain bounds, such as by criticizing government leaders, disparaging ethnic or racial groups, or offending religious sentiments. Some restrictions on speech are, of course, justified: for example, speech that incites violence should be suppressed through the justice system. Hate speech should also be challenged through rebuttal and education. Politicians especially should refrain from language that fosters intolerance.

The line between speech that incites violence and speech that is merely controversial varies with local conditions, such as the degree of risk that speech will lead people to violence and the ability of the police to prevent a violent turn. But it is also important to distinguish between those who incite violence, and those who oppose free speech and use violence to suppress or punish it. And while international law permits restrictions on speech that incites hatred and hostility, they must be enshrined in law, strictly necessary for reasons of national security or public order, and proportionate.

Those who seek to suppress controversial speech typically claim the moral high ground by suggesting they are guarding cherished values or preventing national discord. But that is not how such restrictions tend to play out because it is usually the strong who repress the speech of the weak. When Pakistani authorities charged a 12-year-old Christian girl with a mental disability with blasphemy, the values of the Quran that she was (falsely) accused of desecrating were never in jeopardy, but the girl was a conveniently weak figure for unscrupulous adherents of the dominant religion to exploit. When Indonesian officials prosecuted members of the minority Ahmadiyah religious community for blasphemy, the country’s dominant religion was never at risk, but a Muslim sect that many Islamic countries declare to be deviant was persecuted. The same could be said of the Saudi youth facing the death penalty for apostasy because of a Tweet questioning his own faith.

Governments sometimes justify prosecuting a contentious speaker by arguing that he or she provoked a violent reaction. That is a dangerous concept. It is easy to imagine governments seeking to suppress dissenters by suggesting they provoked a violent response from government forces or their allies. Security forces in Bahrain, for example, attacked and rounded up peaceful activists on the grounds that they were disturbing public order. Even the early Tahrir Square demonstrations in Egypt might have been shut down under such a robust concept of provocation. When people react violently to non-violent speech because they object to its content, they—not the speaker–are the offender. The state has a duty to stop their violence, not give them an effective veto over the speech by censoring it.

Respect Minority Rights: The Case of Burma

The problem of unbridled majority rule is not limited to the Arab world. In the past year, the most vivid demonstration of the problem could be found in Burma, a long-entrenched military dictatorship that is giving way at a surprising pace to at least signs of limited democracy. Many of the outstanding issues concern the military: Will it give up its constitutionally guaranteed quarter of the seats in parliament? Will it countenance civilian oversight of its conduct and business interests? Will it release all political prisoners still languishing in prison and permit unfettered competition in the 2015 elections? The leading opposition political party, the National League for Democracy (NLD), headed by Nobel laureate Aung San Suu Kyi, is understandably preoccupied with these questions of power and political rights.

But the NLD has been disappointing in its reluctance to look beyond a quest for power to secure the rights of less popular, more marginal ethnic groups. For example, it has not pressed the military to curtail, let alone prosecute, war crimes being committed against the ethnic Kachin population as part of continuing counterinsurgency operations in the north. Most dramatically, the NLD has refused to speak out against severe and violent persecution of the Muslim Rohingya in the west, many of whom are stateless as a result of a discriminatory nationality law, despite coming from families who have lived in Burma for generations. Suu Kyi has disappointed an otherwise admiring global audience by failing to stand up for a minority against whom many Burmese harbor deep prejudice.

Western sanctions played a key role in convincing the Burmese military that, without reform, it would never match the economic development of its Association of Southeast Asian (ASEAN) neighbors (let alone escape economic dependence on China). However, European nations and the United States rushed to suspend sanctions and to undertake high-profile visits to Burma before genuine reforms—including protections for persecuted minorities—were implemented, losing considerable leverage in the process to protect minority and other rights.

Bolster Weak States that Lack the Rule of Law:

The Case of Libya

As much as strong states can be dangerous when unrestrained by basic rights protections, so are weak and disintegrating ones. Paradoxically, the state can not only be a threat to human rights, but is also a necessity for their realization. To avoid the plight of Afghanistan or Somalia, the alternative to a repressive state should be a reformed, not a dismantled, one.

Among the Arab Spring states, Libya best illustrates the problem of a weak state. No longer plagued by the dictatorship of Muammar Gaddafi and its repressive grip, Libya suffers foremost from a lack of government—one that is dedicated to respecting rights and incapable of enforcing them.

That void is partly Gaddafi’s design: he deliberately kept governmental institutions weak to reduce threats to his reign. But it is also due in part to the NATO powers’ eagerness, having overthrown Gaddafi, to declare victory and move on, rather than commit serious effort and resources to the less dramatic but essential work of institution building.

The problem is particularly acute with respect to the rule of law. The Libyan government still does not have anywhere near a monopoly on the use of force. Militias operating autonomously continue to dominate many parts of the country and in some places commit serious abuses with impunity, such as widespread torture, occasionally resulting in death. Thousands remain in detention, including many accused Gaddafi supporters—held sometimes by the government, sometimes by militias—with little immediate prospect of being charged, let alone of confronting in court whatever evidence exists against them. The problem is illustrated by the case of Saif al-Islam Gaddafi, the late dictator’s son. Libya resists surrendering him to the International Criminal Court (ICC), promising instead to provide a fair trial itself, but the government cannot even secure custody of him from the militia that is holding him.

Address the Atrocities in Syria

Syrians do not yet have the luxury of erecting a rights-respecting democracy. At this writing, opposition forces are fighting the brutal dictatorship of President Bashar al-Assad, and the world has been at once preoccupied with stopping the slaughter of civilians by Assad’s forces and ineffective at doing so. Tens of thousands have been killed. The leading Western countries and several Arab states imposed sanctions in an effort to curb the government’s atrocities, but Russia and China have blocked a unified international response with their multiple vetoes in the United Nations Security Council.

Russia and China deserve blame for their obstructionism, yet other governments have not put enough pressure on them to make them end their indifference to countless atrocities. For example, the United Kingdom and France allowed Rosoboronexport, the principal Russian arms exporter that has been a major supplier to Syria, to continue to display its wares at sales exhibitions outside London and Paris. For much of 2012, the US continued to purchase helicopters from Rosoboronexport for service in Afghanistan.

The UN Security Council’s referral of Syria to the ICC would have provided a measure of justice for the victims and helped to deter further atrocities. But even though many Western governments said they supported such action, they have not exerted the kind of strong, sustained, public pressure that could have moved Russia and China to allow the referral to go forward in the Security Council. For example, only in December 2012 did the EU adopt a formal common position on the matter; at this writing, it was unclear if that would yield a strong diplomatic effort to build a global coalition in favor of referral. So far, Switzerland has been left to spearhead such an effort.

The Arab League, for its part, announced various sanctions against Syria but appeared unable to build a consensus among its member states to implement them, or even to stop its member Iraq from enabling the transfer of weapons to Syria from Iran.

The leading powers of the Global South were also disappointingly complacent. Many have been preoccupied with their belief that NATO went beyond protecting civilians in Libya to deliver regime change—a belief facilitated by NATO’s refusal to debate its actions. Seemingly determined to avoid this overreach in Syria, leading members of the UN Security Council from the Global South, such as Brazil, India, Pakistan, and South Africa, never used their positions to press for an end to atrocities in that nation. All abstained on at least one of the key Security Council votes, providing political cover for the Russian and Chinese vetoes. Rather than also press the world to uphold its responsibility to protect people facing crimes against humanity, Brazil devoted its energies to promoting the important but distinct concept of responsibility while protecting, which focuses on the actions and duties of forces assigned the task of protecting.

The experience of Libya shows that, even while armed conflict continues, it is not too early to work toward a new government that upholds rights. The international community can start by pressing the Syrian rebels to respect rights now—to refrain from torturing or executing prisoners, or fomenting sectarian strife. Yet the principal arms suppliers to the rebels—Qatar and Saudi Arabia— handed out weapons without any apparent effort to exclude forces that violate the laws of war.

The international community should be particularly attentive to atrocities and actions that exacerbate sectarian tensions—the greatest threat of sustained violence after the Assad government. Rebel groups should be urged to promote a vision for their country that has a place for all Syrians and to subscribe to and promote codes of conduct that reinforce their forces’ obligations under the laws of armed conflict. And when ICC member states press to bring Syria’s atrocities before the international court, they should remind rebel leaders that the court would look at atrocities committed by both sides.

Prescriptions for the International Community

The transition from revolution to rights-respecting democracy is foremost a task for the people of the country undergoing change. But the international community can and should exert significant influence to ensure its success. Too often, however, global powers sell their influence short—or settle for less than they should—because of competing priorities. For example, the US and European governments, as noted, in their eagerness to wrest Burma from China’s influence have been tempted to embrace the new government before genuine reforms are adopted. A similar temptation exists for Washington to downplay domestic threats to rights in Egypt so long as Cairo supports US policy toward Israel. A more constructive international response would include the following:

Be principled

Fortunately, we have come a long way since the Western powers abandoned democracy promotion in the region once Islamists did unexpectedly well in elections in Egypt and Gaza. This time around, the international reaction to the victory of Islamic parties has been more principled: accepting their electoral triumphs while encouraging them to uphold internationally recognized rights. That is as it should be, since elections are an essential, if insufficient, part of democracy.

However, Western support for human rights and democracy throughout the region has been inconsistent. It was easy for the West to support popular aspirations for reform in the case of governments that were traditionally adversaries, such as Gaddafi’s Libya and Assad’s Syria. Western support for protest movements in countries led by friendly autocrats, such as Egypt and Tunisia, was belated but, in the end, principled. Yet Western support for democratic change has fallen short when interests in oil, military bases, or Israel are at stake.

For example, the West gave only lukewarm support to Bahraini protesters facing killings, detention, and torture amid worries that the US Fifth Fleet naval base in Bahrain was at risk, and Saudi fears about the emergence of a democracy so close to its own shores, especially given the Shia majorities in Bahrain and in Saudi Arabia’s own oil-producing Eastern Province. There has been virtually no international pressure to reform the other monarchies of the region. At this writing, the United Arab Emirates held more than 60 peaceful Islamist activists in arbitrary detention with nary a peep of international protest. There is much hand-wringing about the dangers to women and minorities from newly elected Islamists in Egypt and Tunisia, but Saudi Arabia’s institutional oppression of women and discrimination against religious minorities warrant at most a shrug. Much is made of Morocco’s modest reforms rather than pressing its monarchy to do more. The message sent is that the West is willing to tolerate Arab autocrats who support Western interests and will jump on the reform bandwagon only when it is about to arrive at its destination.

That lack of principle is noticed. The Arab uprisings have created a new solidarity among the people of the Middle East and North Africa that is more genuine than the worn rhetoric of Arab nationalism sometimes invoked by the Mubaraks and Gaddafis of the region. Double standards are sniffed out and resented, more readily.

Don’t forget justice

New governments must subject officials to the rule of law if they are to break from the impunity that fueled their predecessors’ abuses. Yet international support for that effort has been uneven, fueling protests against selective justice from many repressive governments. And by reducing the certainty of justice being done, inconsistency undermines its deterrent value.

For example, the UN Security Council accepted an impunity deal for former Yemeni president Ali Abdullah Saleh. It seemed to lose interest in justice in Libya once Gaddafi fell, failing to condemn an amnesty for abuses committed by Libyans in the course of toppling the dictatorship. As the UN General Assembly prepared to grant Palestine observer-state status, the United Kingdom pressed Palestinian leaders to promise not to access the ICC, evidently fearful that it might be used against Israeli settlements on the West Bank or war crimes in Gaza (even though it might also address Hamas’ rocket attacks on Israeli civilians).

Elsewhere, the US and the EU provided financial and political backing to the International Criminal Tribunal for the former Yugoslavia (ICTY), a notable success. But the UN Security Council still has not launched a commission of inquiry to examine war crimes by Sri Lankan government forces and the separatist Tamil Tigers that resulted in up to 40,000 civilian deaths in the final months of the armed conflict in 2008 and 2009. There was little international concern expressed about the ICC’s sole focus to date on atrocities committed by forces allied with ousted C te d’Ivoire President Laurent Gbagbo, which left the impression that the world was ignoring abuses of forces loyal to sitting President Alassane Ouattara. The US went out of its way to prevent the UN Security Council from naming Rwanda as the main military supporter of the abusive M23 rebel movement in eastern Congo, let alone imposing sanctions against Rwandan officials complicit in the rebel group’s war crimes or encouraging their prosecution (the way former Liberian president Charles Taylor was convicted for aiding and abetting rebels in neighboring Sierra Leone). Western governments (particularly the US) backed President Hamid Karzai’s efforts to suppress a report by Afghanistan’s independent human rights commission on past atrocities by warlords, many of whom are now Karzai’s allies or in his government.

Speak to the people

An important lesson of the Arab Spring is that a mobilized public can be an agent of positive change. Yet many governments in their foreign policies still frequently prefer quiet diplomacy and backroom dialogue to the exclusion of public commentary that all can hear. Social media has proven a powerful new tool, giving each individual the potential to report repression and mobilize against it. To enlist this newly empowered public in reform efforts, the international community must speak to it. Talking privately with governments about reform has its place, but it is no substitute for engaging the public.

Respect rights yourself

It is difficult to preach what one does not practice, yet the rights records of the major powers have fallen short in areas of relevance to Arab Spring states, reducing their influence. The US, for example, remains handicapped in efforts to bring torturers to justice—a major issue in Egypt, for example—because President Barack Obama refuses to allow investigation of officials in former president George W. Bush’s administration who are implicated in torture. The US government’s failure to prosecute or release most detainees at Guantanamo hamstrings its ability to oppose detention without trial. And US efforts to rein in the arbitrary use of deadly force bump up against its deployment of aerial drones to target individuals abroad without articulating clear limits to their use under the laws of war and law-enforcement standards, and a process beyond the executive branch’s unilateral determinations to guard against misuse.

The problem is not only the US. No UK official has been held accountable for helping to send Gaddafi’s opponents to endure torture in Libya, and the UK has yet to convene a credible inquiry into wider allegations of its complicity in overseas torture. Europe’s efforts to oppose sectarian tensions are hurt by its own difficulties securing Roma, immigrant, and minority rights. Its laws on insulting religion and Holocaust denial undermine its attempts to promote free speech. Some European states’ restrictions on religious dress that target women, and on building mosques and minarets impede their promotion of religious freedom.

Turkey’s ability to serve as a model for blending democracy with an Islamic governing party, as many people wish, is marred by its persecution of journalists, continuing restrictions on its Kurdish minority, prolonged impris-onment of Kurdish political activists, and serious concerns about unfair trials and the lack of judicial independence.

Similarly, Indonesia, a country often cited as successfully blending democracy and Islam, has a rights record plagued by discrimination against religious minorities and impunity for military abuses. Its constitution protects freedom of religion, but regulations against blasphemy and proselytizing are routinely used to prosecute atheists, Baha’is, Christians, Shiites, and Ahmadiyah. Some 150 regulations restrict the rights of religious minorities. More than 500 Christian churches have been closed since President Susilo Bambang Yudhoyono took office in 2004. The government has cracked down on Jemaah Islamiyah, the al Qaeda affiliate that has bombed hotels, bars, and embassies, but because the governing coalition includes intolerant Islamist political parties, the government has not intervened to stop other Islamist militants who regularly commit less publicized crimes against religious minorities. Meanwhile, there is no civilian jurisdiction over soldiers who commit serious human rights abuses, leaving only military tribunals that rarely convene, lack transparency, and often treat major crimes as mere disciplinary measures.

Help springtime wherever it takes root

Russia and China do not pretend to set a democratic example. Rather, they are preoccupied with preventing the inspiration of the Arab Spring from catching on at home. Despite their power, the international community should regularly speak out against their repression, both for the sake of the Russian and Chinese people, and because these highly visible examples of repression embolden authoritarian leaders worldwide who seek to resist the same currents in their own countries.

The Kremlin was clearly alarmed when large numbers of Russians began protesting in late 2011 against alleged fraud in parliamentary elections and Vladimir Putin’s decision to seek a new term as president. The protests at the time sparked hope for change and greater space for free expression, but Putin’s return to the presidency has sent the country into a steep authoritarian backslide. The result is a spate of repressive laws and practices designed to induce fear—to discourage public dissent and continuing protests. Participants in protests face massive new fines; human rights groups that receive foreign funding are now required to wear the demonizing label of foreign agent; criminal penalties for defamation have been restored; and the crime of treason has been amended so broadly that it now could easily be used to ensnare human rights activists engaged in international advocacy.

As China underwent a highly controlled leadership transition to the presidency of Xi Jinping, it responded to threats of a Jasmine Spring and a growing dissident movement with its own crackdown. It has paid particular attention to social media, to which the Chinese people have taken in enormous numbers— an estimated 80 to 90 percent of China’s 500 million internet users. Beijing’s notorious Great Firewall is of little use to this effort, because the source of dissident ideas is not foreign websites, but the Chinese people’s own thoughts. The government is devoting massive resources to preventing discussion of issues that it deems sensitive, but many people in China have come to excel at using circumlocutions to evade the censor. That social media users are winning this cat-and-mouse game is suggested by the government’s need to climb down from several controversial actions because they had become the subject of mass critical commentary.

Even China, with its extensive resources, depends on private internet companies to hold the frontline in censorship efforts. In the Arab world, governments have used powerful internet surveillance technologies sold by Western companies to target human rights defenders and suspected dissidents. The absence of enforceable standards against corporate complicity in such censorship and surveillance efforts makes them more likely to succeed, undermining the potential of online technologies to facilitate political reform.

Conclusion

The Arab Spring continues to give rise to hope for an improved human rights environment in one of the regions of the world that has been most resistant to democratic change. Yet it also spotlights the tension between majority rule and respect for rights. It is of enormous importance to the people of the region–and the world–that this tension be resolved with respect for international standards. A positive resolution will require acts of great statesmanship among the region’s new leaders. But it will also require consistent, principled support from the most influential outsiders. No one pretends it will be easy to get this right. But no one can doubt the importance of doing so.

The Arab Spring has inspired people the world over, encouraging many to stand up to their own autocratic rulers. As its leaders act at home, they also set an example for the world. Much is riding on making this precedent positive—one that succeeds in building elected governments that live by the constraints of rights and the rule of law.

Kenneth Roth is the executive director of Human Rights Watch.

The Trouble With Tradition:

When Values Trample Over Rights

By Graeme Reid

Tradition! proclaims Tevye the milkman, in his foot-stomping opening to the musical Fiddler on the Roof. Tradition!

Tevye’s invocation of the familiar as a buffer against the vagaries of his hardscrabble life rings true—after all, what is more reassuring, more innocuous, than the beliefs and practices of the past?

Which is why the resolution passed by the United Nations Human Rights Council (HRC) in September 2012 seems, at first blush, to be so benign.

Spearheaded by Russia, it calls for promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind. It warns that traditions cannot be invoked to contravene rights, and even mentions such bedrock human rights instruments as the Universal Declaration of Human Rights and the 1993 Vienna Declaration, while calling for a survey of best practices—all in the name of promoting and protecting human rights and upholding human dignity.

By the sound of it, the resolution deserves a standing ovation.

But a close look at the context from which this resolution arose reveals that traditional values are often deployed as an excuse to undermine human rights. And in declaring that all cultures and civilizations in their traditions, customs, religions and beliefs share a common set of values, the resolution invokes a single, supposedly agreed-upon value system that steamrolls over diversity, ignores the dynamic nature of traditional practice and customary laws, and undermines decades of rights-respecting progress for women and members of the lesbian, gay, bisexual, and transgender (LGBT) communities, among others.

In countries around the world, Human Rights Watch has documented how discriminatory elements of traditions and customs have impeded, rather than enhanced, people’s social, political, civil, cultural, and economic rights.

In Saudi Arabia, authorities cite cultural norms and religious teachings in denying women and girls the right to participate in sporting activities—steps of the devil on the path to immorality, as one religious leader called them (Steps of the Devil, 2012). In the United States in the early 1990s, traditional values was the rallying cry for evangelist Pat Robertson’s Culture War—code for opposition to LGBT and women’s rights that he claimed undermined so-called family values. Today, it is familiar rhetoric of the US religious right, which has used the same language to oppose gay marriage and to accuse political opponents of undermining tradition and Western civilization. And in Kenya, the customary laws of some ethnic communities discriminate against women when it comes to property ownership and inheritance; while some traditional leaders have supported transforming these laws, many others defend them as embodying tradition (Double Standards, 2003). As one woman told us, They talk about African traditions, but there is no tradition you can speak of—just double standards.

International human rights law—including the Convention on the Elimination of All Forms of Discrimination against Women, and the Protocol to the African Charter of Human and Peoples’ Rights on the Rights of Women in Africa—calls for customary and traditional practices that violate human rights to be transformed to remove discriminatory elements.

United Nations treaty monitoring committees, such as the Committee on the Rights of the Child (CRC) and the Committee Against Torture (CAT), have also stated that customs and traditions cannot be put forward as a justification for violating rights. UN Secretary-General Ban Ki-moon in June 2012 told the New York Human Rights Watch Film Festival, In all regions of the world, LGBT people suffer discrimination—at work, at home, at school, in all aspects of daily life…. No custom or tradition, no cultural values or religious beliefs, can justify depriving a human being of his or her rights.

But such authoritative statements have done little to dampen growing support among UN member states for resolutions that support traditional values. Not only did September’s HRC resolution pass easily—with 25 votes for, 15 against, and 7 abstentions—it was the latest in a series of efforts that Russia has championed in an effort to formalize an abstract set of universal moral values as a lodestar for human rights. In October 2009, for example, the HRC passed a resolution calling for the UN high commissioner for human rights to convene an expert workshop on how a better understanding of traditional values of humankind … can contribute to the promotion and protection of human rights. And in March 2011, the council adopted a second resolution requesting a study of how better understanding and appreciation of traditional values can promote and protect these rights.

Tradition need not be out of step with international human rights norms and standards. For many people living in rural areas, such as parts of sub-Saharan Africa, traditional values interpreted in customary law may be the only recourse to any form of justice. Nor is the substance of the HRC resolution all bad. It does not, for example, necessarily indicate a global consensus (many countries, including some from the developing world, did not support it), and its text specifically states that traditions shall not be invoked to justify practices contrary to human dignity and that violate international human rights law.

But unfortunately, such language can seem out of touch with a reality in which tradition is indeed often used to justify discrimination and crackdowns on rights—especially those of women and members of the LGBT community, among others—and is easily hijacked by nations determined to flout the rights of particular groups and to quash broader social, political, and legal freedoms.

In such environments, tradition subordinates human rights. It should be the other way around.

Rights Curtailed, Rights Ignored

There are potentially negative implications for many groups when traditional values trample on human rights—but they are not always the same.

For women, upon whose shoulders the burden of upholding cultural norms and values often falls, traditional values can be a tool that curtails their human rights. Human Rights Watch has shown that such values are sometimes used to justify forced marriages in Afghanistan, virginity testing in Indonesia, honor crimes in Iraq, and marital rape in Kyrgyzstan. In Yemen, the abolition of the minimum marriage age on religious grounds in 1999 means that girls as young as eight are married off to much older men, some of whom rape their prepubescent girl brides without legal consequence (How Come You Allow Little Girls to Get Married?, 2011). In Bangladesh, unlike in neighboring India, even the most reasonable demands of Hindu women and women’s rights activists— such as divorce on a few grounds that include cruelty and abandonment—have been stalled for decades by critics of such moves, who cite religion (Will I Get My Dues … Before I Die?, 2012).

While many representatives in Yemen’s parliament agree that a minimum marriage age is vital to safeguarding young girls’ rights, they have been held hostage by a small but powerful group of parliamentarians who oppose any minimum age restriction on the grounds that it would lead to spreading of immorality and undermine family values.

For LGBT people, the traditional values argument may not just be used to limit human rights, it may be used to entirely negate them. That’s because the language of traditional values tends to cast homosexuality as a moral issue, and not a rights issue—as a social blight that must be contained and even eradicated for the good of public morality.

Public morality narrowly invoked, as the International Covenant on Civil and Political Rights (ICCPR) recognizes, may provide a legitimate reason to temporarily restrict some rights. But it should not be a smokescreen for prejudice or conflated with majority opinion, and it may never be used as an excuse to violate the covenant’s non-discrimination provisions.

It often is.

In 2008, for example, Human Rights Watch showed how vague and ill-defined offenses against public morality laws are used in Turkey to censor or close LGBT organizations and to harass and persecute LGBT people (We Need a Law For Liberation). A year later, the Philippine Commission on Elections invoked morality, mores, good customs, and public morals when it rejected an LGBT group’s application to register as a political organization. The Supreme Court of the Philippines rejected this argument in 2010, holding that the country’s democracy precluded using the religious or moral views of part of the community to exclude from consideration the values of other members of the community.

Similarly, several former British colonies, including Nigeria and Malaysia, use moral terms such as gross indecency and carnal knowledge against the order of nature in rejecting homosexuality, citing so-called traditional values embodied in laws that in fact only date to the relatively recent, and otherwise derided, colonial era. In the 2008 report This Alien Legacy, for example, Human Rights Watch highlighted the irony of foreign laws being exalted as citadels of nationhood and cultural authenticity. Homosexuality, they [judges, public figures, and political leaders] now claim, comes from the colonizing West, the report states. They forget the West brought in the first laws enabling governments to forbid and repress it.

In Uganda, Malaysia, Moldova, and Jamaica, where the state rejects LGBT rights, claims that homosexuality is simply not in our culture are ubiquitous. All countries are ruled by principles, Alexandru Corduneanu, the deputy mayor of Chisinau, said in 2007, after the Moldovan capital city banned a demonstration by LGBT activists for the third year running. Moldova is ruled by Christian principles, and that is why we cannot allow you to go against morality and Christianity by permitting this parade.

A Tool of Repression

Traditional values need not be at odds with human rights; indeed, they may even bolster them.

In Iraqi Kurdistan, for example, where tradition, custom, morality, and Islam have been invoked to justify continuing female genital mutilation (FGM) from one generation to the next, the highest Muslim authority issued a fatwa in July 2012, signed by 33 imams and scholars, saying that Islam does not require FGM (They Took Me and Told Me Nothing, June 2010). Disappointingly, implementation of the Family Violence Law that went into effect on August 11, 2011, and includes several provisions to eradicate FGM, has been lackluster.

There has also been some progress in adapting or banning traditional practices that fail to respect human rights. The 2009 Elimination of Violence Against Women Law in Afghanistan, for example, outlawed baad—the practice by which disputes are settled in the community by giving up women or girls as compensation for crimes—although implementation of the law has been poor.

Several countries have also amended their laws related to family—the conduit of many traditions—to different degrees, illustrating the space for negotiation and constant change to improve women’s rights rather than place them within a static framework of unchanging traditional values.

Several recent legal cases, including in South Africa, Kenya, and Botswana (which voted against the HRC resolution), also show that rights-limiting traditional practices need not hold sway over inclusive, rights-respecting national law.

In 2008, for example, South Africa’s Constitutional Court found in favor of a daughter inheriting her father’s chieftaincy—in line with the country’s constitution and against a male rival’s claim that the Valoyi people’s tradition of male leadership meant he was the rightful hosi, or chief, of the 70,000-strong group. In issuing its ruling, the court noted that tradition is never static, and should adhere to human rights standards laid out in a rights-based constitution.

Kenyan courts ruled in 2005 and 2008 that, despite customary laws of particular ethnic groups favoring sons for inheritance purposes, daughters must have an equal right to inherit a father’s property. The courts noted that where discrimination is at stake, human rights must prevail. Kenya has since amended its constitution, enshrining women’s equal rights to land and property.

Meanwhile, Botswana’s High Court in October 2012 ruled in favor of four sisters who had fought a five-year battle with a nephew who claimed rightful ownership of the family home. The court ruled that the customary law upon which the nephew based his case contravened constitutional guarantees of equality for men and women. The attorney general had reportedly agreed that customary law was discriminatory, but argued that Botswana was not ready to change it. Culture changes with time, the court observed

But such examples are rare.

Too often, traditional values are corrupted, serving as a handy tool for governments in the business of repression. For Russia, which spearheaded the HRC resolution, the insertion of traditional values into the realm of human rights comes amid intensifying government repression of civil society and the media, and is part of a concerted effort to roll back the gains made by women and LGBT people in Russia.

In 2012, St. Petersburg became one of nine Russian regions to date to adopt so-called homosexual propaganda laws that outlaw creating distorted perceptions about the social equality of traditional and non-traditional family relationships. Russian Foreign Minister Sergei Lavrov justified the laws—which Russia’s Supreme Court upheld in restricted form in October—by arguing that LGBT human rights were merely an appendage to universal values. There is active debate about introducing similar legislation that cynically links homosexuality and child abuse, in Moscow and on a federal level.

And in 2010, the Constitutional Court of the Russian Federation upheld the conviction of lesbian activist Irina Fedotova for an administrative offense under provincial law after she displayed posters near a school in the city of Ryazan, southeast of Moscow, declaring, Homosexuality is normal and I am proud of my homosexuality. The court ruled that the homosexual propaganda law, which the city adopted in 2006, did not interfere with Fedotova’s freedom of expression, since traditional understandings of family, motherhood and childhood were values necessitating special protection from the State.

The UN Human Rights Committee, the international expert body that monitors implementation of the ICCPR, begged to differ, ruling in November 2012 that the federation was in violation of the covenant’s freedom of expression provisions. [T]he purpose of protecting morals, the committee stated, must be based on principles not deriving exclusively from a single tradition.

A Comforting Ideal

It’s no coincidence that traditional values—and the related push against LGBT rights—are finding an eager and broadening international audience at this time.

In some cases there’s a specific context, as in Russia with President Vladimir Putin’s broader clampdown on civil society and Russia’s efforts to roll back the mandates of the international human rights machinery while encouraging like-minded allies to do the same. In sub-Saharan countries, such as Zimbabwe and Uganda, the devastation of AIDS, economic crisis, and political instability have lawmakers scrambling to pass increasingly repressive legislation against homosexuality on the grounds that doing so is necessary to protect African culture and tradition in the face of encroaching foreign values.

More broadly, the current climate of political uncertainty, social upheaval, and economic crisis in much of the world has enhanced the appeal of the timeless universal essence that tradition is claimed to embody. In Uganda, as Human Rights Watch showed in 2012 (Curtailing Criticism), the government’s clampdown on civil society organizations is in part justified by an appeal to homophobia, amid increased political tension, escalating public criticism, and President Yoweri Museveni’s own political ambitions to serve another term after the 2016 elections.

Blaming one group for the ills befalling society is easy and appealing in the face of such instability. Gays and lesbians, who often live in secret due to laws and social prohibitions against homosexuality, are particularly easy targets for the moral panics that can erupt at a time of social crisis. In Jamaica, gay men in particular are seen as harbingers of moral decay, leading to public vitriol which often ends in violence, including a June 2004 mob attack on a man perceived to be gay in Montego Bay. The mob chased and reportedly chopped, stabbed and stoned him to death with the encouragement of the police (Hated to Death, 2004).

In Zimbabwe, where gays and lesbians frequently find themselves playing the role of folk devils, gay-bashing follows the election cycle all too predictably, with President Robert Mugabe raising the specter of homosexuality as a way to deflect attention from the country’s more pressing social, political, and economic problems. In 1995, as his regional stature was diminishing, Mugabe unleashed a vitriolic attack on gays, whom he said offend against the law of nature and the morals of religious beliefs espoused by our society. In 2012, Mulikat Akande-Adeola, the majority leader of Nigeria’s House of Representatives, was equally unequivocal when she supported a sweeping anti-LGBT bill when it passed its second reading: It is alien to our society and culture and it must not be imported, she said. Religion abhors it and our culture has no place for it.

Transformation, Not Rejection

The human rights movement is not opposed to the existence of customary law, religious law, and tradition; it is opposed to those aspects of them that violate rights.

As a result, the task at hand is one of transformation, not rejection—as reflected in international human rights law that calls for customary and traditional practices that violate human rights to develop in order to remove discriminatory elements. As the Convention on the Elimination of All Forms of Discrimination against Women stipulates, states should modify the social and cultural