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Will International Human Rights Be Used as a Tool of Cultural Genocide? The Interaction of Human Rights Norms, Religion, Culture and Gender

Published online by Cambridge University Press:  24 April 2015

David M. Smolin
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Extract

Ironically, certain contemporary international human rights norms appear to place governments in an adversary relationship to certain peoples, such as Hasidic and Orthodox Jews, whose attempted destruction provided the impetus for modern human rights law. This raises the paradoxical spectre of human rights law being used as a tool of cultural genocide.

This conflict is, of course, not confined to Hasidic and Orthodox Jews; indeed, it appears that the majority of people on the earth are identified with a people-group whose cultural/religious practices violate certain international human rights norms. While it is common to use Islam as an example, this paper initially concentrates on traditional Judaism because of the special place of the Holocaust as a catalyst for the modern international human rights movement.

Type
Articles
Information
Journal of Law and Religion , Volume 12 , Issue 1 , 1995 , pp. 143 - 171
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1995

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References

1. See, for example,Webster's Seventh New Collegiate Dictionary 934 (G. & C. Merriam Company, 1967)Google Scholar (defining “totalitarian,” inter alia, as “centralized control by an autocratic leader or hierarchy” and “a political regime based on subordination of the individual to the state and strict control of all aspects of the life and productive capacity of the nation”); Skillen, James W. and McCarthy, Rockne M., eds, Political Order and the Plural Structure of Society (Scholars Press, 1991)Google Scholar (contrasting both “collectivism” and “individualism” to three pluralist traditions: the historical (including Burke and Gierke), Roman Catholicism's theory of subsidiarity, natural law, and the common good, and neo-Calvinist theories of sphere sovereignty, creation order, and public justice). Among the varied writings on totalitarianism, Hannah Arendt's book, The Origins of Totalitarianism (Harcourt Brace Jovanovich, 1979) should be particularly notedGoogle Scholar.

2. Universal Declaration of Human Rights, GA Res 217 A (III), UN Doc A/810 at 71 (1948), (hereinafter UDHR)Google Scholar.

3. Deut 11:18–20 (Jewish Publication Society of America, 1955)Google Scholar.

4. Compare Greenawalt, Kent, Private Consciences and Public Reasons 181 (Oxford U Press, 1995)CrossRefGoogle Scholar (“One feature of liberal democracy is that it allows people peacefully to reject existing political ground rules.”).

5. See, for example, Brandenburg v Ohio, 395 US 444 (1969) (upholding free speech rights of leader of the Klan, Ku Klux)Google Scholar; United States v Eichman, 496 US 310 (1990)(flag-burning)Google Scholar; Texas v Johnson, 491 US 397 (1989)Google Scholar; Keyishian v Board of Regents, 385 US 589 (1967)Google Scholar.

6. International Covenant on Economic, Social and Cultural Rights GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 49, UN Doc A/6316 at Art 13, para 1 & 4 (1966), entered into force Jan 3, 1976 (hereinafter ESCR). Convention on the Rights of the Child, GA Res 44/25, UN GAOR Supp (No 49) at 166, UN Doc A/44/736 at Art 29, para 1(b) & 2 (1989) (hereinafter CRC).

7. See Cynthia Cohen, Price and Davidson, Howard A., eds, Children's Rights in America 182 (ABA, 1990)Google Scholar.

8. See International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 at Art 5, para 1 (1966) entered into force Mar 23, 1976 (hereinafter CPR). ESCR at Art 5, para 1 (cited in note 6).

9. CPR at Art 20 (cited in note 8).

10. Id at Art 18(3), 21, 22.

11. See generally Nowak, John E. & Rotunda, Ronald D., Constitutional Law 382–84, 399–404, 595–606, 1002, 1016–1018 (West Publishing Co., 5th ed, 1995)Google Scholar (discussing fundamental rights, equal protection, and various standards of review used in American constitutional law). It seems particularly significant that under American constitutional law public morals do not constitute a compelling governmental interest, and hence cannot be the basis for restricting fundamental rights or employing suspect classifications, whereas the standard frequently employed in United Nations documents for the restriction of fundamental rights appears to recognize public morals as a sufficient justification for the limitations of rights such as freedom of religion, assembly, and association. See for example, CPR at Arts 18(3), 21, 22 (cited in note 8).

12. See generally Meron, Theodor, Human Rights Law-Making in the United Nations 173–202 (Clarendon Press, 1986)CrossRefGoogle Scholar. A small number of rights achieve primacy through being non-derogable, see, for example, CPR at Art 4, para 2 (cited in note 8); or perhaps through achieving the status of jus cogens. However, on the whole, the international community has yet to address, let alone come to a consensus, on a hierarchy of rights. See Meron, , Human Rights at 177 (cited above)Google Scholar.

13. See Kuper, Leo, Genocide 30–31 (Yale U Press, 1981)Google Scholar.

14. Id at 31.

15. Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 at Art II (1948) entered into force 01 12, 1951Google Scholar.

16. Kuper, , Genocide at 31 (cited in note 13)Google Scholar.

17. Id at 30.

18. Id at 31.

19. Id at 31 (quoting Beardsley, Monroe C. in Arens, Richard, Genocide in Paraguay 85, 86 (Temple U Press, 1976))Google Scholar.

20. The United Nations Charter, 59 Stat 1301 at Art 1(3), 55, entered into force 10 24, 1945Google Scholar.

21. UDHR at Art 2 (cited in note 2).

22. Id at Art 23.

23. Id at Art 25(2).

24. Id at Art 16(3).

25. Id at Art 16(1).

26. See, for example Baehr v Lewin, 74 Haw 645, 852 P2d 44 (1993)Google Scholar(holding that prohibition of same-gender marriage is a gender classification triggering strict scrutiny under state equal rights amendment); Koppelman, Andrew, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 NYU L Rev 197 (1994)Google Scholar; Meron, , Human Rights at 73–74 (cited in note 12)Google Scholar (expressing concern that provision in Convention on the Elimination of All Forms of Discrimination Against Women which allows State Powers to legislate to protect maternity could undermine anti-discrimination purposes of that Convention).

27. See Westen, Peter, The Empty Idea of Equality, 95 Harv L Rev 537 (1982)CrossRefGoogle Scholar.

28. For present purposes it is not necessary to provide a comprehensive analysis of gender norms in human rights conventions; thus, this article does not separately analyze the International Convention on Civil and Political Rights, and the International Convention on Economic, Social and Cultural Rights. For present purposes it is sufficient to note that these conventions are subject to the same difficulties of interpretation as noted above in regard to the United Nations Charter and Universal Declaration of Human Rights. It thus seems appropriate to turn primary attention to the Women's Convention, which is specifically addressed to issues of gender.

29. Convention on the Elimination of All Forms of Discrimination Against Women, GA Res 34/180, UN GAOR Supp (No 46) at 193, UN Doc A/34/46 (1980) entered into force Sep 3, 1981 (hereinafter CEDAW). A list of ratifying countries may be found in Carter, Barry E. & Trimble, Phillip R., international Law, Selected Documents and New Developments 432 (Little, Brown & Company, 1995)Google Scholar. For a useful (although slightly dated) bibliography, focusing on both the Women's Convention, and the broader theme of international human rights, see Cook, Rebecca J., Women's International Human Rights: A Bibliography, 24 NYU J Intl L & Pol 857 (1992)Google Scholar.

30. CEDAW at Art 1 (cited in note 29).

31. Id at Art 2.

32. Id at Art 2(b), (e), (f).

33. Id at Art 5(a).

34. Id.

35. Meron, , Human Rights at 72 (cited in note 12)Google Scholar.

36. Id at 66.

37. Id.

38. Id at 66.

39. Id at 62.

40. Id at 70.

41. CEDAW at Art 10(c) (cited in note 29).

42. Meron, , Human Rights at 70 (cited in note 12)Google Scholar.

43. Id.

44. Id at 55.

45. See Meyer v Nebraska, 262 US 390 (1923)Google Scholar; Bartels v State of Iowa, 262 US 404 (1923)Google Scholar; Pierce v Society of Sisters, 268 US 510 (1925)Google Scholar; Ross, William G., Forging New Freedoms, Nativism, Education and the Constitution 1917-1927 (U of Nebraska Press, 1994)Google Scholar.

46. Id.

47. See, for example, Roe v Wade, 410 US 113, 152–53 (1973)Google Scholar, aff'd in part, overruled in part, Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833 (1992)Google Scholar.

48. Ross, , Forging New Freedoms at 3 (footnote numbers omitted) (cited in note 45)Google Scholar.

49. Id at 4.

50. Id at 3.

51. CEDAW at Art 10(c) (cited in note 29).

52. See Board of Educ. of Kiryas Joel Village School Dis. v Grumet, 114 S Ct 2481 (1994)Google Scholar.

53. Id at 2485.

54. Id.

55. CEDAW at 10(b) & (c) (cited in note 29).

56. See Plaskow, Judith, Standing Again at Sinai (Harper & Row, 1990)Google Scholar.

57. Id at xi.

58. Id at xiv.

59. Id at xv.

60. Id at xi.

61. Id. Judith Plaskow's assessment of the highly patriarchal nature of the historical Jewish tradition finds confirmation in other sources. For example, Jacob Neusner's sympathetic portrayal of the Mishnah does not neglect to emphasize its highly-gendered vision, in which women are “the indicative abnormality in a world in which men are the norm.” See Neusner, Jacob, An Introduction to Judaism 176 (Westminster/John Knox Press, 1991)Google Scholar; id at 176-91. Leonard Swidler's study takes a less sympathetic, more broadly negative view of historical Judaism's treatment and characterization of women. See Swidler, Leonard, Women in Judaism (Scarecrow Press, 1976)Google Scholar.

62. Plaskow, , Standing Again at xvi (cited in note 56)Google Scholar.

63. Id at xvi-xvii.

64. See Meron, , Human Rights at 66 (cited in note 12)Google Scholar. Meron is herein discussing the meaning of the term “appropriate” in article 3, but the discussion logically would apply to the same term (and phrase) as used in article 5. In both instances, the phrase “all appropriate measures” is used to describe the State's undertaking and affirmative obligation to act.

65. Id.

66. See generally id.

67. See Plaskow, , Standing Again at 18 (cited in note 56)Google Scholar.

68. Id at 20.

69. Id at ix-x.

70. This general assessment of Plaskow's work is supported, I would argue, by the very structure of Standing Again at Sinai. The first chapter describes Plaskow's commitments and methodology; the next three chapters describe systematically how three central concepts and associated practices in Judaism—Torah, Israel, and God—can be critiqued and reshaped according to feminist norms. The fifth chapter, addressing sexuality, follows the same pattern of treating feminism as normative and Judaism as the raw material available to be transformed. The final chapter's theme is reflected by its title, “Feminist Judaism and Repair of the World.” The author is willing to be critical of certain views or trends sometimes found within feminism, but fails to undertake any sustained critique of the central concepts of feminism from a Jewish perspective.

71. Id at 10-13.

72. See Davidman, Lynn, Traditions in a Rootless World (U of California Press, 1991)Google Scholar; Kaufman, Debra Renee, Rachel's Daughters (Rutgers U Press, 1991)Google Scholar. It seems relevant to note that Judith Plaskow, whose work is discussed extensively above, served as the outside reader for Davidman's book in its earlier form as a dissertation. Davidman, , Traditions at ixGoogle Scholar. Indeed, Davidman notes that Plaskow's work “has always inspired me and influenced my thinking,” and that her role as outside reader “helped shape” the dissertation's “evolution” into a book. Id.

73. See Telushkin, Rabbi Joseph, Jewish Literacy 433 (William Morrow and Company, Inc, 1991)Google Scholar.

74. Id.

75. Id at 434.

76. Id at 430-36.

77. Davidman, , Traditions at 162 (cited in note 72)Google Scholar.

78. Id at 166.

79. Id.

80. Id.

81. Id.

82. Id at 165.

83. See Telushkin, , Jewish Literacy at 617–19 (cited in note 73)Google Scholar; Kaufman, , Rachel's Daughters at 75 (cited in note 72)Google Scholar.

84. See Davidman, , Traditions at 158 (cited in note 72)Google Scholar.

85. See Kaufman, , Rachel's Daughters at 75–85 (cited in note 72)Google Scholar.

86. Id at 79.

87. Id at 75-85.

88. See Davidman, , Tradition at 102–106, 109–113, 116–120, 126–130, 205–06 (cited in note 72)Google Scholar.

89. Kaufman, , Rachel's Daughters at 39, 41 (cited in note 72)Google Scholar.

90. Id at 47-48.

91. Id at 49.

92. Id.

93. See, for example, Davidman, , Traditions at 127–135 (cited in note 72)Google Scholar; Kaufman, , Rachel's Daughters at 49 (cited in note 72)Google Scholar.

94. See, for example, Davidman, , Traditions at 130–34 (cited in note 72)Google Scholar; Kaufman, , Rachel's Daughters at 40–41, 47–49, 51 (cited in note 72)Google Scholar.

95. It should be noted that there is no indication in Davidman or Kaufman's work that Hasidic females actually marry at such a tender age; indeed, it is illegal to marry at age 14 in most states today even with parental permission. However, marriages presumably are sometimes arranged (although not legally or sexually consummated) well before that age. It is also interesting to note that the involvement of minor females in polygamous marriages, at an age where sexual activity would constitute statutory rape, was a rationale of the ultimately futile attempt to crush a modern polygamous community on the Arizona-Utah border through removal of the children. See Areen, Judith, Family Law 13–20 (Foundation Press, 3rd ed, 1992)Google Scholar.

96. See Glendon, Mary Ann, What Happened at Beijing, First Things, 30, 35 (01 1996)Google Scholar. Professor Glendon of the Harvard Law School led the Vatican Delegation to the Beijing Conference. Professor Glendon noted: “Unfortunately, there is an increasing tendency for advocates of causes that have failed to win acceptance through ordinary democratic processes to resort to the international arena, far removed (they hope) from scrutiny and accountability. The sexual libertarians, old-line feminists, and coercive population controllers can be expected to keep on trying to insert their least popular ideas into UN documents for unveiling at home as ‘international norms.’” Id.

97. Meron, Theodor, A Report on the N.Y.U. Conference on Teaching International Protection of Human Rights, 13 NYU J of Intl L & Pol 881, 901 (1981)Google Scholar.

98. See Glendon, , First Things at 31–36 (cited in note 96)Google Scholar.