According to a report by the Malaysian “New Straits Times” the idea of an Islamic court, dealing solely with human rights issues between and involving Islamic nations, might soon become a reality. Of course, the mere fact of creating a judicial institution focusing on the protection of human rights must be welcomed. Not at least, since the impact of such an institution on the overall political establishment and on the position of the individual human being in relation to the State in which he/she lives will be strengthened immensely; as has been shown before by inter alia the creation of the European Court for Human Rights (ECtHR). But disregarding these possible positive effects, it must be asked how such an institution can be integrated with the judicial (and political) systems of the Islamic States concerned. Will the interpretation of human rights by a court, which would have to follow purely legal and rational methods of reasoning and analysis, be accepted in all Islamic States, considering the often close connection between religious and political perceptions in those countries?
Furthermore, the comparison with the ECtHR gives rise to the following fundamental questions:
1) The ECtHR will only deal with a matter after all domestic remedies have been exhausted (Art. 35 lit. a Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR]). This provision is mainly based on the consideration that the ECtHR – not at least for practical reasons – may only function as a last remedy that can provide for and secure a harmonic development of the level of human rights protection within a geographical area which shares an equal set of fundamental values and thus is able to benefit from a uniform human rights protection. In other words, the ECtHR is not supposed to replace the national courts, not even as far as questions dealing with the protection of fundamental human rights are concerned. Instead, the common court presupposes a functioning court system on the national level. An Islamic human rights court would itself have to be part of a similar system of judicial institutions. But do (all or even most of) the Islamic countries provide for such a functioning court system? Because: one common court will surely not be able to resolve the possible deficiencies of the national court systems regarding human rights protection.
2) Also, as mentioned above, the ECtHR is based on a number of fundamental human rights principles shared by all European countries: the ECHR. Although the countries which might support a possible Islamic human rights court may be allowed to have different opinions on details of certain human rights provisions, they must nevertheless agree on what human rights the common court should oversee and protect. Considering the vast diversity of perceptions within Islamic countries of what human rights are/may be, the formulation of an “Islamic human rights convention” might turn out to be a considerable difficult task.
It will be interesting to see, if this report will in fact be followed by the creation of another regional human rights court … Indeed highly doubtful. Not at least since it must be seen as exceedingly questionable whether such an institution would actually improve the position of human rights in Islamic countries or merely function as a “competition” to the ICJ and/or the ECtHR i.e. a purely political instrument.