Boston College Third World Law Journal

Volume 18 | Issue 1 Article 6

1-1-1998

Islamic Laws as Violations of Human Rights in the

Sudan
Carolyn Ratner

Follow this and additional works at: [Link]

Part of the Foreign Law Commons, Human Rights Law Commons, and the Religion Law
Commons

Recommended Citation
Carolyn Ratner, Islamic Laws as Violations of Human Rights in the Sudan, 18 B.C. Third World L.J. 137
(1998), [Link]

This Book Review is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been
accepted for inclusion in Boston College Third World Law Journal by an authorized administrator of Digital Commons @ Boston College Law School.
For more information, please contact [Link]@[Link].
 ISLAMIC LAWS AS VIOLATIONS OF
HUMAN RIGHTS IN THE SUDAN

CAROLYN RATNER*

GOD HAS NINETY-NINE NAMES. By JUDITH MILLER. New York:

Simon & Schuster, 1996. Pp. 574.

Judith Miller's book, God Has Ninety-Nine Names, examines the

rising wave of Islamic fundamentalism in the Middle East. 1 The book
presents its country-by-country analysis of the movement through his-
tory, recent politics, and personal accounts. 2 Miller bases the book
largely on interviews she has conducted and on her travels and adven-
tures during twenty-five years of reporting from the region.! She dis-
cusses the fervor that has gripped almost every Arab state, the young
militants who lead the movements, the visions of bringing about revo-
lutionary changes through a devout adherence to the prescriptions of
Islam, and the responses to these movements in the varied and cultur-
ally distinct countries where they have emerged. 4 Miller suggests that,
contrary to militant Islamic claims that religion will induce unification
among Muslims in the Arab world, fundamentalism is a fragmented
and diverse movement that does not have the power to surmount dif-
fering national, cultural, and religious identities. 5 In Miller's words:
Just as the Koran gives ninety-nine names for God, Islam-
and Islamic militancy, in particular-occurs in many variet-
ies, as distinct from country to country as Catholicism is in
France, Italy, Brazil, and America. There is no more an Is-
lamic world than there is an Arab world or a Christian world. 6
Miller approaches her study of each country by evaluating the
country within the contexts of society, history, political traditions,
and culture. 7

* Articles Editor, BOSTON CoLLEGE THIRD WORLD LAw JOURNAL.

1 SeeJUDITH MILLER, GoD HAs NINETy-NINE NAMES 13 (1996).
2 See id.
5Seeid. at 17.
4 See id.
5 See id.
6 MILLER, supra note I, at 14.
7 See id.

137
138 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 18:137

Miller perceives militants' utilization and involvement in politics

as a way to replace secular laws and rulers, with not only Muslim edicts
and rulers, but with their own brand of Islam. s She notes their contu-
macious desire to rid their societies of secular and traditionally un-Is-
lamic customs, influences, and cleavages, which militants see as impedi-
ments to Muslim advancement and prosperity.9 "The militants I write
about inhabit a 'hybrid world' and promote a cult of nostalgia for an
imagined past that they seek to reclaim by securing sufficient political
power to 're-Islamize' their societies and produce, if not a more demo-
cratic, a more 'just' government and 'authentic' environment."l0
The book focuses on the effect these movements will have on
non-Muslim minorities, intellectuals, and womenY While politics is
unavoidably at the center of the book, Miller attempts to convey, in a
historical context, the "mood of the countries[,] ... the tone of their
debates, and the forms taken by the struggle for dominance in each
ofthem."12
Islam endures and has become, in some countries, extremely
influential and threatening to the prevailing order. IS Even in countries
where there is little prospect that Islamic forces will rule, Islam provides
the vocabulary of everyday life, reshaping the language of politics,
fundamental aspects of national culture, and long-standing traditions. I4
A common feature of the Islamic fundamentalist movements re-
cently embraced in the Middle East is the demand for stricter adher-
ence to Islamic law. I5 One of the most obvious and prevalent manifes-
tations of the process of Islamization is the primacy of religious over
secular law. I6 The implementation of Islamic religious law, Shari'a, is
one of the ultimate goals of militant Muslims in their quest to funda-
mentalize the Arab world. 17 Islam itself is based on the principle of the
inseparability of religion and politics which necessitates the codifica-

8 See id. at 17.

9 See id.
10Id. at 18.
11 See MILLER, supra note 1, at 18.
12Id.
13 See id. at 13.
14 See id.
15 See Safia Safwat, Islamic Laws: The Case of Sudan, in ISLAMIC FuNDAMENTAUSM 12 (1990),
(papers presented at a seminar held by the Institute for African Alternatives on June 3,1989).
16 See Abdullahi Ahmed An-Na'im, Qur'an, Shari'a and Human Rights: Foundations, Deficien-
cies, Prospects, in THE ETHICS OF WORLD REUGIONS AND HUMAN RIGHTS 61, 64-65 (Koung
Moltmann ed., 1990).
17 See id. at 65.
1998] BOOK REVIEW 139

tion of Islamic law as the law of the country, proclaimed and adminis-
tered by national governments. I8 The recent resurgence of Islamic
fundamentalism has been most notably displayed in Saudi Arabia,
Pakistan, Iran, the Sudan, and Mghanistan. 19 The Sudan provides a
framework of analysis for, and an illustration of, fundamentalist imple-
mentation of Shari'a as state law and the consequent violations of
individual countries' constitutional guarantees and international hu-
man rights standards.20 The forced implementation of Islamic law in
the Sudan may be seen as a reflection of the resurgence of Islam
throughout the Muslim world. 21
The Sudan is a country that has been plagued by political insta-
bility.22 There have been eight failed governments since independence
from Great Britain and Egypt in 1956. 23 Since independence, the Su-
danese government has continually vacillated between military or ci-
vilian rule and sectarian democracy.24 Military rule has prevailed for
twenty-seven of the thirty-eight years of Sudanese independence. 25 The
most recent military rule has yielded an uncompromising Islamic mili-
tancy.26
Through interviews with the most predominant political figures
in the Sudan, personal accounts, and her own observances, Miller
notes numerous human rights violations occurring in the Sudan as a
result of this Islamic militancy and the laws of Islam. 27 This book review
addresses the intrinsic constitutional and human rights violations that
result from the dominance of Islamic law in the Sudan. Part I will
discuss the basic tenets of Islam and Islamic law. It will attempt to
define Islamic fundamentalism and some of the reasons posited for its
growth in the Middle East. Part II will deal with the political history of
the Sudan. It will address the inherent conflicts between the Sudanese
Constitutions and the implementation of Shari'a. 28 Part III will dem-

18 See NAGATY SANAD, THE THEORY OF CRIME AND CRIMINAL RESPONSIBILITY IN ISLAMIC LAw
46 (1991); see also Steven Sherman, Shari'a Law in the Sudan: Why it Does Not Work Under the
Sudanese Constitutions of 1973 and 1985,7 DICK.]. INT'L L. 277, 279 (1989).
19 See generaUy MILLER, supra note 1, at 14-17.
20 See id. at 14--15.
21 See Carey N. Gordon, The Islamic Legal Revolution: The Case of Sudan, 19 INT'L LAw. 793,
798 n.3 (1985).
22 See MILLER, supra note 1, at 134.
2S See id.
24 See id.
25 See id.
26 See id. at 15.
27 See MILLER, supra note 1, at 15.
28 The Arabic word Shari' a is a noun derived from the verb Shari'a, which means to set the
140 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 18:137

onstrate that Muslim law, as it is applied in the Sudan, violates inter-

nationally recognized human rights standards. Finally, Part IV will
argue that cultural relativism does not justifY violations of internation-
ally recognized human rights standards.

I. ISLAM, ISLAMIC LAw, AND ISLAMIC FUNDAMENTALISM

There was considerable international optimism as to the role the

Sudan would play in forming bridges between Mrica and the Middle
East as the country approached independence. 29 Geographically, the
Sudan is the largest country in Africa30 and is adjacent to eight sub-Sa-
haran and North African countries: Egypt, Ethiopia, Kenya, Uganda,
Zaire, Central Mrican Republic, Chad, and Libya. 31 The Sudan is an
Mro-Arab microcosm due to the ethnic and cultural diversity that is
represented within its borders.32 The U.S. Department of State said of
the newly independent Sudan, "As a new African nation, the Sudan
will be deeply involved in [the] future cause of Mrica. But as a Middle
Eastern nation too the Sudan will also be a bridge to Mrica, imparting
to it ideas, philosophies, and forces which may have great influence on
Africa's decisions and on its future."33
The Sudan, however, has been afflicted with chronic domestic
conflict, the central theme of which is a North-South religious, racial,
and cultural dichotomy.34 The North, is Islamic and Arabized and has
benefited from political, economic, social, and cultural development. 35
The South is more indigenously Mrican in religion, race, and culture
with the exception of a small, educated, predominantly Christian mi-
nority.36 The South has received little benefit from the country's socio-
economic development. 37 This rift, and the resultant fears of northern

path, or road that provides access to a source. See An-Na'im, supra note 16, at 63. The term may
also be interpreted to mean way of life or method. See id. The term has come to mean "divinely
ordained way of life." See id. It includes legal and jurisprudential matters as well as rituals,
theology, ethics, personal hygiene, and good manners. 'See id.
29 See Francis M. Deng, A Three-Dimensional Approach to the Conflict in the Sudan, in RELIGION
AND NATIONAL INTEGRATION IN AFRICA: ISLAM, CHRISTIANITY, AND POLITICS IN THE SUDAN AND
NIGERIA 39, 40 (John O. Hunwick ed., 1992).
30 See id. at 39-40.
31 See id.
32 See id. at 39.
33Id. at 40.
34 See Deng, supra note 29, at 40.
35 See id.
36 See id.
37 See id.
1998] BOOK REVIEW 141

domination, culminated in a seventeen-year civil war. liB This conflict has

been the main source ofinstability in the Sudan since independence. 1l9
Religion is the controlling theme of the Sudan's history because
of the comprehensive influence of Islam on all aspects of public and
private life.40 Islam links together all facets of life into a composite
whole that is regulated by Shari'a.41 Shari 'a, which can be literally
translated as "the road to the watering place" or "the clear path to be
followed," means in the legal context, "the sacred law of Islam. "42 It
encompasses the entire system of Islamic law, dictating penal laws and
daily religious, social, and personal interactions.411 The whole of the law
is permeated by religious and ethical considerations, and everything is
measured by the standards of religious and moral rules. 44 In Islam
there is an integral relationship between religion and morality.45 This
relationship necessitates the set of rules embodied in Islamic law for
the protection of the moral values of the Muslim community.46 The
Islamic community is responsible for watching over the practice of
what is good and decent, and prohibiting that which is evil. 47 In the
Holy Koran,48 God is quoted as saying, "Ye are the best community that
hath been raised up for mankind. Ye enjoin right conduct and forbid
indecency. "49 The premise of Shari'a is that one lives his or her public
and private life, twenty-four hours a day, under the watchful eyes of
Allah. 50 The laws of Shari'a that are important for the purposes of this
review are the personal laws governing women and non-Muslims and
the criminal laws of the reformulated penal code.
The first and most important source of Shari'a is the Koran. 51 The
Koran is the Holy Book for Muslims.52 In addition to monotheism and

S8 See id. at 40-41.

lI9 See Deng, supra note 29, at 41.
40 See id.
41 See id.
42 Sherman, supra note 18, at 279.
4S See id.
44 SANAD, supra note 18, at 46.
45 See id.
40 See id. The Koran prohibits such vices as drinking alcohol, adultery, fornication, gambling,
usury, and fa1se testimony on the basis of their moral consequences. See id.
47 See id.
48The Koran is the Holy Book for Muslims. See SANAD, supra note 18, at 38. Quoran has
been spelled many ways including Koran, Quran, Qu'ran, and Qur'an. I will use Koran, as it is
the English transliteration. Sherman, supra note 18, at 280.
49 SANAD, supra note 18, at 46. (citing Surat al-Imran V:ll0).
50 See id.
51 See id.
52 See id.
142 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 18:137

the postulate of the exclusive worship of God, the Koran creates a

complete moral system for human beings and sets down the founda-
tions of the world order for humankind. 55 There are dogma, ethics,
history, wisdom sayings and legislation in the Koran. 54 It is the totality
of rules which God has laid down and revealed to the Prophet Moham-
med for governing man's behavior. 55 The Koran is a code which gov-
erns the religious and social life of mankind. 56 As the aggregate of
divinely ordained rules known as Ahkam alshari'a, the Koran is first
among Islamic legal sources.57 The rules derived from the Koran are
therefore regarded as the highest rules, and all rules derived from
other sources should be in full accord with Koranic ones. 58
The second source of Islamic law is the Sunna, which is comprised
of collections of sayings and records of the Prophet Mohammed, who
founded Islam in seventh century Arabia.59 It includes what the
Prophet is recorded to have said, done, approved, or forbidden. 50 The
third source of Islamic law, Ijma, is the consensus of Islamic legal
scholars on any particular point oflaw. 61 The final major source is the
concept of deduction by analogy, Qiyas, which involves the use of logic
and reason. 62
Within the past three decades Islamic fundamentalism has be-
come a political movement.65 The ousting of the Shah of Iran and his
subsequent replacement by the Ayatollah Ruholla Khomeini marked
the induction of the Middle East into the Islamic fervor that has
dominated politics in the region since 1979.64 While the original roots
of Islamic fundamentalism can be traced to Muslim Brother Sayyid
Qutb, fundamentalism in the Middle East, as a powerful movement,
has been augmented as a result of the peculiar conditions of particular
Arab countries. 55 Islamic leaders who favor a fundamentalist reading

53 See id.
54 See SAN'AD,
supra note 18, at 38.
id.
55 See
56 See id.
57 See id.
58 See id.
59 See SANAD, supra note 18, at 38.
60 See id.
61 See id.
62 See id.
65 See Gordon, supra note 21, at 800.
M See id.
65 See YOUSSEF M. CHOUEIRJ, IsLAMIC fuNDAMENTALISM 70 (1990); see also MILLER, supra
note I, at 13.
19981 BOOK REVIEW 143

of sacred texts, are the new leaders of an old battle. 66 They are fighting
a battle to militantly impose on Muslims, the way enjoined by the
Prophet Mohammed. 67 The defining features of the modern funda-
mentalist movement are its inflexibility and antiquated prescriptions.68
The movement endorses the original principles and commands of
Islam without taking into consideration changes in the countries them-
selves and the world around them. 69
Fundamentalism in the Middle East has been a parasite to eco-
nomic instability, attracting and recruiting the poor and dispossessed-
those whom Muslims call "the disinherited. "70 Islamic fundamentalism
preaches hostility to the existing secular authoritarian states. 71 It prom-
ises a better life if secular governments can be replaced by simpler
religious governments that are closer to the people. 72
The "Islamist" response ... seems to be a pragmatic response
to the problems of modernity-matters of convenience and
afIordability rather than ideology. Modernity is frightening
and disorienting, especially when its cost is likely to exceed
its promised benefit In the Middle East as elsewhere, social
roles, values, and traditions are undergoing great changes for
which tradition offers psychic protection. 7!l
Contemporary Islamic fundamentalism is distinct from earlier fun-
damentalist movements in that it demands a return to a "distant
utopian past. "74 The consequence of this ideology is that in addition
to considering technical, socio-economic and political changes to
be a direct threat to Islam and the Islamic way of life, fundamental-
ism also assumes that these changes have been constructed in order
to threaten Islam. 75
Fundamentalism is not unique to Islam, nor does Islam uniquely
encourage fundamentalism. It is the economic, social, and political

66 See MILLER, supra note I, at 13.

67 See itl.
66 See generally itl.
69 See generally An-Na'im, supra note 16, at 63.
70 See MILLER, supra note I, at 13.
71 See itl.
'7ll See James Paul, Islam and the State: The Problems of Establishing Legitimacy and Human
Rights, 12 CARDOZO L. REv. 1057, 1071 (1991).
7sId.
74 See M. H. A Reisman, Some Reflections on Human Rights and Clerical Claims to Political
Power; 19 YALE]. OO'L L. 509, 512-13 (1994).
75 See itl.
144 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 18:137

environment that encourages the formation of forces for change-

sometimes minor and at other times radical. Islamic fundamentalism
is like any other form of mystical or secular religion that can be used
as a force for the political mobilization of people and as an instrument
of socio-economic and political change. Nevertheless, it would be de-
lusory or deceitful to minimize the authentic indigenous character of
Islamic fundamentalism. Islam is more than Islamic fundamentalism,
but Islamic fundamentalism is one authentic expression of Islam. 76
Theocratic government defines fundamentalist political aspira-
tions. '17 This type of governmen t is diametrically opposed to democracy
in its belief that authority derives from God as opposed to the popular
support of the people. 78 Because Islamic fundamentalism believes that
humans do not have the authority to change or prescribe laws, they
may only be executed by those individuals who have dedicated their
lives to worshipping and studying God's wishes in the Koran. 79 Any
indication of the people's wishes is unnecessary for the legitimacy of
the fundamentalist government. so Because fundamentalism demands
total commitment to God and the community, individual rights of
Muslims are considered subordinate to God and the community.81

II. SUDANESE POLITICAL AND CONSTITUTIONAL HISTORY

Despite the Sudan's historical instability, it established a peaceful

existence in March of 1972 when PresidentJaafar Mahammed Nimeiri
signed the Addis Ababa Agreement ending the seventeen year civil war
between Northern and Southern Sudan. 82 The agreement provided for
complete autonomy for the Southern Region subject only to national
regulation of defense, foreign affairs, currency, economics, and inter-
regional affairs.8!! In 1972, shortly after the Addis Ababa Agreement,
the President formed the Sudanese People's Assembly.54 The Assem-
bly's sole responsibility was the drafting of a new Constitution based
on democracy and socialism. 85 The Constitution was completed in 1973

76 See id. at 513.

77 See id. at 514.
78 See id. at 515.
79 See Reisman, supra note 74, at 515.
80 See id.

81 See generally id. at 516-17.

82 See Sherman, supra note 18, at 283.
85 See id.
84 See id.
85 See id.
1998] BOOK REVIEW 145

and embodied paradigmatic democratic principles: guarantees of per-

sonal rights and freedoms, powers and duties of the executive, legisla-
tive, and judiciary branches, functions of the military, state sovereignty,
supremacy oflaw, and several additional rules regarding procedure for
the effective operation of the government. 86 Islamic law maintained its
deferential status while accommodating the rights and customs of
non-Muslims. 87 The 1973 Constitution reads, "Islamic law and custom
[Shari'a law] shall be the main sources of legislation. Personal matters
of non-Muslims shall be governed by their personal laws. "88 The 1973
Sudanese Constitution charges the Sudanese Supreme Court with the
task of determining what is constitutional, and contains a supremacy
clause which states that the "Rule of Law" is paramount. 89 This has been
interpreted by non-Muslims and non-fundamentalist Muslims to mean
that any acts not conforming to the Constitution are conceptually
unconstitutional; this applies specifically to Shari'a law. 90
In 1977, Nimeiri, unable to attract Sudanese support away from
traditional rival political and religious groups, increasingly emphasiz-
ed his own Islamic orientation and made a deal with other Islamists
(the Ansar and the Muslim Brotherhood) to stay in power. 91 Despite
the urgings of these allies, Nimeiri resisted imposing Islam on his
heterogeneous country and inevitably reinstating civil war. 92 However,
in 1980, Nimeiri published a book, Why the Islamic Path? in which he
praised Islam as the best way to achieve Sudanese unity.911 Shortly after
his book was published, the Nimieri regime destroyed any remaining
facades of national unity and equality by applying Shari'a throughout
the country.94 In September of 1983, Nimieri declared that a version
of Shari'a law would be applied in the criminal, civil, and personal law
systems. 95 Nimeiri asserted that these laws, referred to specifically as
the "September Laws" would be a "step toward transforming the Sudan
into an Islamic state."96 The civil war that Nimeiri had ceased a decade

86 See id.
87 See Sherman, supra note 18, at 283-84.
88 [d. at 288 (citing THE PERMANENT CoNSTITUTION OF THE SUDAN (1973) Art. 9).
89 See id. at 286.
90 See id.
91 See MILLER, supra note I, at 185.
92 See id. at 136.
95 See id.
94 See id.; see also Angela M. Lloyd, The Southern Sudan: A Compelling Case For Succession, 32
CoLUM.J. ThANSNAT'L L. 419, 448 (1994).
95 See Lloyd, supra note 94, at 448.
96 [d. (citing Ann M. Lesch, Confrontation in the Southern Sudan, 40 MIDDLE EJ. 410, 418
146 BOSTON COLLEGE THIRD WORW LAW JOURNAL [Vol. 18:137

before once again resumed and his hold on power as well as Sudan's
economic position rapidly deteriorated.97 In 1985, Nimieri was over-
thrown by Major-General Abdul Rahman Sawar-Dahab. 98 In October of
that year, the transitional military government adopted the Transi-
tional Constitution of the Republic of the Sudan 1985.99 The 1985
Constitution was remarkably similar to the 1973 Constitution, and
Nimieri's "September Laws," were never repealed despite promises of
extreme modification or in the alternative, complete [Link]
General Sawar-Dahab was succeeded by the democratic but inef-
fective government of Sadiq EI Mahdi whose rule was indecisive and
[Link] economy in the Sudan continued to decline through-
out Mahdi's rule and the civil war exacted increasingly large amounts
of resources and lives. 102 The subsequent rule of Brigadier General
Orner Hassan Ahmed EI Beshir and the National Islamic Front long
dominated by Hassan al Turabi, a well known militant fundamentalist,
marked the most draconian and militantly Islamic government in Su-
danese history. lOll "Few governments will bear so much responsibility
for such a painful and needless human tragedy as the Islamic military
junta in Khartoum. "104
Both Sudanese Constitutions guaranteed such personal liberties
as freedom of religion, equal rights, and freedom from inhumane
punishment. 105 Yet, there are several inconsistencies that have arisen
between Shari'a and the ConstitutionsYJ6 According to Shari 'a, the
criminalization of apostasy (conversion or some other means of re-
nouncing one's religion) is in direct violation of the 1985 Constitu-
tion. 107 The 1985 Constitution explicitly protects freedom of religion

(1986». Many speculated about why Nimieri imposed an Islamic code. Miller reports that he
claimed that he had a ''revelation that came to him in a dream." MILLER, S'Upra note I, at 137.
Former advisers suggested he was trying to bolster his popularity in the face of a deteriorating
economy. See ill. Others suggest he was attempting to place himself at the forefront of what he
saw as the resurgence of a winning trend. See ill.
97 See MILLER, supra note I, at 136.
98 See lloyd, S'Upra note 94, at 449.
99 See id.
100 See id.
101 See ill. at 450; see also MILLER, supra note I, at 146-47.
102 See lloyd, S'Upra note 94, at 450.
lOS See ill.
104 Id.
(citing Julian Ozanne, Sudan Plays the Politics a/Famine (clipping from private file of
John Koehring, USAIO Fellow».
105 See Sherman, supra note 18, at 295-96 (citing TIm PERMANENT CONSTITUTION OF THE
SUDAN (1973), TIm TRANSITIONAL CONSTITUTION OF THE REPUBLIC OF THE SUDAN (1985».
106 See generally ill. at 278, 284.
107 See id. at 296.
1998] BOOK REVIEW 147

for all Sudanese pursuant to Article 18. 108 This is also in direct violation
of Article 47 of the 1973 Constitution which explicitly protects "free-
dom of belief, prayer, and performance of religious practices. "109 The
criminalization of apostacy renders freedom of religion an empty guar-
antee,llo It implies that freedom of religion for Muslims is defined as
freedom to practice Islam or die. 111 This inconsistency is defended by
the fundamentalist belief that once having been born a Muslim or
otherwise having adopted the Islamic beliefs, the freedom of belief no
longer exists. ll2 This interpretation denies freedom at any level to all
but a minority of Sudanese. m
The Constitutions also endorse equal rights. 114 However, the impo-
sition of a set of laws for Muslims, different from those applied to non-
Muslims, violates the equal protection guaranteed by Article 17 (1) (2)
of the 1985 Constitution.ll5 Unequal treatment is also prohibited in
Article 38 of the 1973 Constitution, which provides that "Sudanese
have equal rights ... irrespective of ... sex, ... or religion. "116 How-
ever, according to Islamic law, non-Muslims constitute a secondclass
citizenship which precludes them from holding certain government,
military,judicial, and legislative positions. 117 Additionally, women, while
granted equal dignity in Islam are not given equal rights. 1I8 They are
most obviously discriminated against in family law.1I9 This is evidenced
in issues such as marriage, divorce, and inheritance. 120
Finally, Article 29 of the 1985 Constitution assures freedom from
inhumane punishment and is violated by the 1988 and 1991 Penal
Codes which institute flogging and amputation for certain crimes and

108 See id.

HY:l Id. at 287 (citing THE PERMANENT CONSTITUTION OF THE SUDAN (1973».
lIO See Sherman, supra note 18, at 287.
m See id.
112 See id.
mSeeid.
lI4 See id. at 295.
lI5 See Sherman, supra note 18, at 298 (citing THE TRANSITIONAL CONSTITUTION OF THE
REpUBLIC OF THE SUDAN (1985».
lIti Id. at 295 (citing THE PERMANENT CONSTITUTION OF THE SUDAN (1973».
117 See John L. Esposito, The Threat of Islam: Myth ar Reality, in THE ETHICS OF WORLD
RELIGIONS AND HUMAN RIGHTS 39, 44-45 (Koung Moltmann ed., 1990).
liS See An-Na'im, supra note 16, at 63. The general rationale of women's inferiority to men
under Shari 'a is the principle of quwama whereby men are deemed to be guardians of women.
See id. Based on verse 4:34 of the Koran, this principle has been used as the basis for limitations
on women's rights. See id.
lI9 See id.
120 See id. at 63-64.
148 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 18:137

death for adultery and fornication. 121 These punishments also violate
Article 72 of the 1973 Constitution which states, "No person shall be
subjected to any unusual or inhuman treatment or punishment. "122
Additionally, Articles 70, 72, 73, 74, and 75 of the 1973 Constitution,
when read in conjunction, suggest a fairness or proportionality stand-
ard to be applied to decisions on punishment. 123 Non-Muslims and
human rights observers believe that the violent per se nature of Shari' a
punishment, as applied by the fundamentalist government, is contrary
to human dignity.124 The National Islamic Front's most recent literal
interpretation of Islam's injunctions is manifested in the 1988 Penal
Code which defines existing crimes, makes provisions for crimes not
previously criminal, and applies punishments not previously utilized. 125
The imposition of the 1988 Penal Code violates both the 1985 Consti-
tution and the 1973 Constitution and renders Sudanese criminal law
unacceptable for Muslims and non-Muslims alike. 126

III. VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS STANDARDS IN

THE SUDAN

The contemporary human rights movements have succeeded in

conferring on the international community the competence to recog-
nize and determine whether a violation has occurred. 127 This process
is based on international standards which transcend national, cultural,
and religious boundaries. 128 The wave of international human rights
resolutions originated with the Universal Declaration of Human Rights
in 1948 and has been subsequently reinforced by several human rights
affirming instruments, most notably the International Bill of Rights. 129
These are the rights that are claimed by individuals against their
governments and are supported by the international community.130
In 1948, seven out of the then eight Muslim states voted in favor
of the Universal Declaration of Human Rights. l3l Saudi Arabia re-

121 See Sherman, supra note 18, at 296.

122 Id. at 289 (citing THE PERMANENT CONSTITUTION OF THE SUDAN, Art. 72).
123 See id.
124 See id. at 289-90.
125 See Safwat, supra note 15, at 17.
126 See Sherman, supra note 18, at 298.
127 See Reisman, supra note 74, at 510.
128 See id.
129&e id. at 511.
130 See id.
131 See id. at 516.
1998] BOOKREVlEW 149

mained the only Muslim country in the United Nations that failed to
ratify it. ll1!! Despite majority endorsement of the Declaration, reserva-
tions among the Muslim states were never entirely vanquished. ll1l1
The Universal Declaration of Human Rights was adopted by the
General Assembly of the United Nations, on December 10, 1948Y14 As
the very term indicates, human rights apply universally, to all people,
regardless of the color of their skin, their gender, or their religious
convictions. 1M
All Islamic states are bound by the obligation, imposed by the
United Nations Charter on all member states, to respect and promote
human rights. ll16 It is now clearly agreed that the rights to be promoted
are those set out in the Universal Declaration of Human Rights. 1l17 The
general consensus is that the Declaration has become binding on all
states. l118 Additionally, the Covenants are most likely binding because
they essentially elaborate the Declaration's provisions.l!I9 It is widely
agreed that the legal obligation to respect these rights rests on a moral
obligation. l40
The application of strict Shari'a since 1983, and more extensively
since 1989, in the Sudan, has brought the legal relationship between
Shari'a and human rights violations to a significantly more serious
level,l41 The expanded application of Shari'a violates the fundamental
human rights of women and non-Muslims. 14!!Taken together, these two
groups constitute about one-third of the total population of the Su-
dan. l 4!1 The main human rights violations for women and non-Muslims
under Shari'a can be discussed under the rubric of equality before the
law. l44 The Universal Declaration of Human Rights posits in Article I:
"All human beings are born free and equal in dignity and rights" and
Article 7: "All are equal before the law and are entitled without any

152 See Reisman, supra note 74, at 516.

155 See ill.
154 See THE DECLARATION OF HUMAN RIGHTS, Adopted by the General Assembry on 10 December
1948 [hereinafter DECLARATION].
155 See An-Na'im, supra note 16, at 61.
1M See ill.
157 See ill.
IS8 See ill.
Il19See ill.
140 See Paul, supra note 72, at 1067.
141 See Abdullahi Ahmed An-Na'im, Shari'a and Human Rights Violations in the Sudan, in
ISLAMIC LAw REFORM AND HUMAN RIGHTS IlJ5, 144 [hereinafter Shari'a and Human Rights].
142 See ill.
145 See ill.
144 See An-Na'im, supra note 16, at 6lJ.
150 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 18:137

discrimination to equal protection of the law .... "145 Both of these

articles are inconsistent with the treatment and status of women and
non-Muslims. 146
The basis for women's inferiority in Islam is derived from the
Koran which states, "Men are in charge of women, because Allah hath
made the one of them to excel the other, and because they spend of
their property (for the support of women). So good women are the
obedient .... "147 The purpose of women, according to the Koran, is
to compliment men. l48 Women's rights to employment and participa-
tion in public life, freedom of movement and freedom of organization,
are severely restricted through a combination of the Shari'a principles
of qawam (men's guardianship over women), hijab (the veil) and
segregation between men and women. 149 Examples of women's in-
equality can be found in the administration of justice and in certain
aspects of family law. 150 A woman's judicial testimony is deemed to be
of half the value of that of a man, in civil cases, and is not accepted at
all in serious criminal cases. 151 In certain types of wrongful homicide,
monetary compensation paid to the heirs of a female victim is less than
that paid to the heirs of a male victim and a woman's share in inheri-
tance is half that of a man's.152 Additionally, no woman may hold any
public office which involves exercising authority over men. 153 This
effectively denies women access to high-ranking public office regard-
less of personal competence and qualifications. 154
In the application of Shari'a family law, women are persistently
discriminated against. 155 An Islamic man is entitled to take a maximum
of four permanent wives and may maintain an infinite number of
"temporary wives" at the same time. 156 He may divorce any of them at
will without justification or explanation. 157 A woman, on the other

145 DECLARATION, supra note 134.

See generally Shari'a and Human Rights, supra note 141, at 144.
146
147 Reisman, supra note 74, at 518-19 (citing Koran IV:34 translated in THE GLORIOUS KoRAN
109 (Muhammad Marmaduke Pickthall trans., 1976) at 104).
146 See id. at 519.
149 See Shari'a and Human Rights, supra note 141, at 145.
150 See generally An-Na'im, supra note 16, at 63-65.
151 See Shari'a and Human Rights, supra note 141, at 145.
152 See id; see also An-Na'im, supra note 16, at 13.
153 See An-Na'im, supra note 16, at 63.
154 See id.
155 See id.
156 See id. at 63-64; see also Reisman, supra note 74, at 519.
157 See An-Na'im, supra note 16, at 63.
1998] BOOK REVIEW 151

hand, is restricted to one husband at a time and may only obtain a

judicial divorce on very specific grounds. 158 Additionally, women must
obtain the permission of their husbands to work or to travel abroad. 159
The laws and treatment applied to non-Muslims are also in direct
violation of Articles 1 and 7 of the Universal Declaration of Human
Rights. lOO Non-Muslims are subject to restrictions based on what is
known as the dhimmi system. l6l Under this system, members of "toler-
ated" communities of non-Muslims living within an Islamic state are
guaranteed protection of their persons and property, the right to
practice their faith, and a certain degree of communal autonomy, in
exchange for submission to Muslim sovereignty and payment of a poll
tax. 162 According to the dhimmi system, non-Muslims are forbidden
from holding any public office which would involve their exercising
authority over Muslims. 16!! They are also forbidden from serving in the
armed forces of an Islamic state. l64 Due to the indivisibility of religion
and politics that defines Islamic fundamentalism, dhimmis are forbid-
den to participate in policy making or the management of any Muslim
affairs which require divine authority and deep Islamic conviction. l65
With regards to the criminal justice system, the testimony of a
non-Muslim witness is not accepted. l66 Furthermore, the monetary
compensation paid for the wrongful homicide of a non-Muslim victim
is less than that paid for a Muslim victim. 167
The dhimmi system only applies to "People of the Book," believ-
ers in other religions which are deemed to have had a heavenly-re-
vealed scripture. l68 Therefore, many southern Sudanese who are believ-
ers in traditional Mrican religions do not even qualifY for the inferior
dhimmi statuS. I69 Atheists and non-recognized religious minorities are
generally not recognized as persons by Shari'a, and are therefore

158 See id.

159 See Reisman, supra note 74, at 519.
160 See DECLARATION, supra note 134.
161 See Shari 'a and Human Rights, supra note 141, at 145. Dhimmis may conduct their own
communal affairs in accordance with their own law but they are subject to the jurisdiction of the
Muslim state in public matters. See An-Na'im, supra note 16, at 64.
162 See Shari'a and Human Rights, supra note 141, at 145.
1M See id.
164 See id.
165 See Reisman, supra note 74, at 517; see also SANAD, supra note 18, at 46.
166 See Shari 'a and Human Rights, supra note 141, at 145.
167 See id.
168 See id.
169 See id. at 145-46.
152 BOSTON COLLEGE THIRD WORW LAW JOURNAL [Vol. 18:137

subject to the harshest discrimination. 17o For these reasons, Shari'a

violates the fundamental human rights principle of equal rights and
freedom from discrimination.l71
Article 18 of the Declaration reads: "Everyone has the right to
freedom of thought, conscience and religion; this right includes free-
dom to change his religion or belief .... "172 The fundamentalist ap-
plication of Shari'a, manifested in the law requiring death for apostasy,
is inherently violative of this freedom of religion and conscience. 1711
According to Shari'a, whereas non-Muslims are to be encouraged to
convert to Islam, it is a crime punishable by death for a Muslim to
repudiate his faith in Islam. 174 Article 126 of the post-Nimeiri 1991
Sudanese Penal Code now authorizes the death penalty for any non-
repenting Muslim who "advocates the rejection of Islamic beliefs or
announces his own rejection of Islam by word or act. "175 The most
recent and relevant illustration was the hanging of Mahmoud Muham-
mad Taha, a Muslim whose unorthodox religious views resulted in his
execution in 1985. 176 Taha had been convicted of sedition and apostasy,
abandoning Islam, a charge that he denied until his death.177 Many
believe that Taha was killed because of his strong religious convictions
rather than his lack of them. 178 Sheik Mohammed al-Ghozali, Egypt's
model of the mainstream Muslim cleric, when asked whether people
who espouse secular views should be punished, answered: "[Al secu-
larist represents a danger to society and the nation that must be
eliminated.... It is the duty of the government to kill him. "179
Finally, the Sudan has flagrantly violated international human
rights standards forbidding cruel and inhumane punishments and
treatments. 1SO Article 5 of the Declaration states: "No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or

170 See Reisman, supra note 74, at 518. Some non-believers may be granted safe conduct to
reside in Muslim lands and, according to some jurists, long-term residents may be treated as
dhimmis. See An-Na'im, supra note 16, at 64.
171 See Shari'a and Human Rights, supra note HI, at 146.
172 DECLARATION, supra note 134.
173 See An-Na'im, supra note 16, at 64.
174 See id.
175Donna E. Arzt, Religiuus Human Rights in Muslim States of the Middle East and North
Africa, 10 EMORY INT'L L. REv. 139, 144-45 (1996).
176 See gmera~ MILLER, supra note I, at 11-13.
177 See id.
178 See id.
179Reisman, supra note 74, at 518.
180 See gmer~ MILLER, supra note I, at 147-48.
1998] BOOK REVIEW 153

punishment. "181 However, militant Islamists in Sudan have, in addition

to death for apostasy, redefined several offenses and their punishments
in blatant disregard for human rights standards. 182 For example, under
the new Sudanese penal code the offense of "Highway Robbery" can
be punished by death (with or without crucifixion), amputation of the
right hand and left foot alternately, and/or imprisonment, depending
on whether murder was committed during the course of the robbery.183
The code also prescribes loss of appendages for theft; flogging for
drinking alcohol, homosexuality, and offending someone's modesty;
and, lengthy prison sentences for abortion and suicide attempts. 184 A
Muslim who drinks alcohol receives up to forty lashes; a suicide attempt
is punishable by a year in prison and/or a fine; and an abortion that
is not required to save the mother's life or is not the result of rape can
result in up to three years in jail and/or a fine. 185 A homosexual is
subject to a hundred lashes and imprisonment of up to five years. 186
"Gross indecency," which has been defined as "any act contrary to
another person's modesty," brings forty lashes, the same as the penalty
for someone who wears any "indecent or immoral uniform which
causes annoyance to public feelings. "187
The crime of adultery has been redefined to mean any act of
unlawful sexual in tercourse including rape and sodomy.188 Punishmen t
for these acts depends on whether the offender is married or unmar-
ried. 189 Furthermore, the offense has been expanded to include at-
tempted adultery.19o Police have been authorized to stop men and
women who are together and demand that they produce their mar-
riage certificates. 191 If they fail to do so, they are charged with at-
tempted adultery and, if convicted, flogged in public. 192 For those who
are married, "fornication shall be punished by death."193 Unmarried
male offenders "shall be sentenced to imprisonment and exile for one

181 DECLARATION, supra note 134.

182 See MILLER, supra note 1, at 147; see also Safwat, supra note 15, at 17.
185 See Safwat, supra note 15, at 18.
184 See MILLER, supra note 1, at 147.
185 See iii.
186 See iii.
187 Id. at 147-48.
188 See Safwat, supra note 15, at 17.
189 See iii.
190 See iii.
191 See iii.
192 See iii.
195 Safwat, supra note 15, at 17.
154 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 18:137

year in addition to whipping. "194 Most disturbing is the amount of

discretion the Penal Code accords the courts in regards to punish-
ment. 195 Section 458(f) reads: "[T]he court may at its discretion impose
any sentence it deems appropriate even if no such sentence is expressly
provided for in the Penal Code. "196
In 1990, Human Rights Watch/Africa, a non-governmental hu-
man rights group, branded Sudan's Islamic government, the most
"brutal" to govern Sudan since independence. 197 The report stated that
the regime was guilty of human rights abuses "never before seen" in
the country.19B
In addition to the aforementioned laws specifically promulgated
in the Penal Code, sanctioned torture has become widespread in the
Sudan, especially in the South. 199 Examples of the torture include:
paper bags filled with chili powder placed over men's heads; being tied
to anthills; having one's testicles crushed and burned by cigarettes and
electrical current. 2OO Gaspar Biro, a Hungarian law professor and the
United Nation's special envoy to the Sudan in 1993, accused the
Sudanese government of "widespread and systematic torture" of politi-
cal detainees and "degrading treatment" in front of their family mem-
bers. 20l When governments impose a set of beliefs on their citizens,
through the use of violence or torture, it is for the purpose of political
expediency not culture. 202

IV. CULTURAL RELATIVISM: AN INSUFFICIENT JUSTIFICATION FOR

HUMAN RIGHTS ABUSES

The idea of universal human rights standards has been ardently

challenged by Islamic countries that have attempted to persuade the
world that their blatant violations of human rights are required by, and
are consistent with, Islamic law, culture and values. 203 They have postu-
lated that Islam prescribes unequal treatment of women and minori-

194 Id.
195 See generaUy id. at 18.
196Id.
197 See MILLER, supra note 1, at 147.
198Id.
199 See id. at 153.
200 See id.
201Id.
See Ann Elizabeth Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a
202
Clash with a Construct?, 15 MICH.]. INT'L L. 307, 397 (1994).
205 See Reisman, supra note 74, at 509.
1998] BOOK REVIEW 155

ties. 204 Fundamentalists also claim justifications for violations of free-

dom of religion and expression as well as freedom from cruel and
inhumane punishment. 205 This reasoning ignores the premise that
human rights apply to all humans irrespective of race, sex, religion, or
national origin. 206 As one scholar critiqued:
The legal and political practices of any group-majority or
minority, state or not-state, territorially or non-territorially
based, whether it be the United States, China, or Iran, Chris-
tian, Islamic,Jewish or Hindu fundamentalist-can no longer
be insulated from appraisal simply and exclusively by invoking
talismanic terms like: "sovereignty," "domestic jurisdiction,"
"tradition," "history," the supposed wills of assorted divinities,
"the way we have always done things," "nonpollution," "auton-
omy" or as alleged preconditions for group continuity.207
A code of international human rights does not insist upon termina-
tion of any specific group, rather, it demands adjustments that allow
for the coexistence of basic entitlements and traditional ideolo-
gies. 208 There is nothing in human rights law that justifies the viola-
tion of human rights based on an alleged divine revelation. 209 Mus-
lim governments, however, even those not explicitly fundamentalist
in nature, have held that human rights instruments do not ade-
quately consider the principles ofIslamic law, culture, and values. 21o
The "cultural relativist" argument, that universal rights can never
take hold in countries with deep-rooted traditions which appear anti-
thetical to rights principles, is unacceptable. 211 In recent years we have
witnessed the development of several human rights movements in
many culturally diverse regions of the Third World. 212
Cultural relativism posits that culture is the source of validity
of rules and that existence of differing cultures necessitates varying
responses to universal standards.2UI Cultural relativism requires that

204 See id.

205 See id.
206 See An-Na'im, supra note 16, at 61.
207Reisman, supra note 74, at 509-lO (citing W.W. Michael Reisman, Comment, Autonomy,
Interdependence, and Responsibility, 103 YALE LJ. 401, 416 (1993».
208 Id. at 510.
209 See id.
210 See id. at 516.
211 See Paul, supra note 72, at 1069.
212 See id.
215 See Mayer, supra note 202, at 382.
156 BOSTON COLLEGE THIRD WORLD LAW JOURNAL (Vol. 18:137

tolerance be elevated to paramount value and external critiques of

culturally-based practices be rejected. 214 'Where human rights are
concerned, cultural relativists claim that pressing for the universality
of human rights in their international formulations involves a failure
to respect the diversity of cultures. "215
Islamic Fundamentalists, in particular, have adopted this cultural
relativist argument as justification for human rights abuses. 216 They
contend that international human rights standards cannot be recon-
ciled with Islamic culture. 217 They argue that these standards are devel-
oped by and applicable only to Western countries. 218 Islamic fundamen-
talist governments posit that Islamic values are inimical to human
rights and democratic freedoms and that attempts at their implemen-
tation are misguided endeavors.219 This cultural justification is not a
sanction for disregarding the basic rights of equality and freedom from
discrimination and inhumane punishment. 22o Claims to power by the
clergy of any religion must be judged by basic international human
rights standards. 221 Allowances should not be made for cultural plural-
ism. 222 Accepting justifications based on cultural pluralism denies the
universality of claims of all human beings to dignity. 223
Mter her experience interacting with women's delegations from
around the world at the 1993 Vienna Conference on Human Rights,
Dorothy Thomas, a representative of Human Rights Watch, said:
Women from every single culture and every part of the world
are standing up and saying we won't accept culturaljustifica-
tion for abuses against us anymore. We are human, we have
a right to have our human rights protected, and the world
community must respond to that call and throw out any
attempts to justifY abuse on the grounds of culture. 224
Unfortunately, so long as blatant human rights abuses are per-
ceived as part of the "divinely ordained Islamic way of life," Islamic

214 See id.

215Id.
216 See id.
217 See id. at 402.
218 See Mayer, supra note 202, at 402.
219 See id.
220 See generally id.
221 See Reisman, supra note 74, at 510.
222 See id.
223 See id.
224Mayer, supra note 202, at 401.
1998] BOOK REVIEW 157

countries will continue to avoid compliance with international human

rights standards and governments will refuse to make a formal com-
mitment to the observance of human rights. 225
The recent implementation of Islamic law in the Sudan has left
its mark on the country's legal system. 226 Regardless of what the future
may hold for Sudan's legal system, the experience of Islamization has
been observed carefully by Muslim reformers in other countries. 227 The
substance and methods of the movement in the Sudan provide an
important chapter in the Islamic Fundamentalist movement that con-
tinues to grow in many parts of the world today.228

225 See An-Na'im, supra note 16, at 65.

226 See Gordon, supra note 21, at 794.
227 See id.
228 See id.