The International Criminal Court, Islamic Legal Tradition, and the Arab World: Quo Vadis? †
In [the Situation in Mali] decision, the Pre-Trial Chamber upheld the Prosecutor’s conclusion that the installation and implementation of Sharia law in Timbuktu proves the existence of an organizational policy to commit a widespread or systematic attack against a civilian population. Not only this, but the Pre-Trial Chamber also accepted the Prosecutor’s contention that applying different forms of Sharia punishments amounted to torture under Article 7(2)(e) of the Rome Statute. It explicitly stated that cultural relativism was rejected in international criminal law. The ramifications of this decision have been highlighted by the defense for Al Hassan, the latter stating that “the allegation that Sharia law constitutes a policy to commit an attack against a civilian population is problematic on many legal and evidential levels.”
Almost twenty-five years after the conclusion of the Rome Statute, a ground-breaking international treaty which established the world’s first, permanent and (intended) universal International Criminal Court (ICC), the Court appears to have reached a quagmire, whereby its reach and jurisdiction is far from universal. The intended universal reach of the Court that was envisioned in 1998 has been undermined throughout the past quarter of a century by a singular operation of the Court and narrow interpretation of the Rome Statute that have placed Western international law principles and institutions on a pedestal, and largely neglected the alternative visions of law that exist in the world, particularly Islamic Law. The implication of this has been to alienate Islamic law countries from reach of the Court, notwithstanding that many of prosecutions that have been brought before the ICC have related to the Muslim world in one way or another. It is therefore critical that steps are taken to redirect the course towards a more inclusive, pluralistic Court, which acknowledges the legal traditions of the whole world, and not just those belonging to the West. In light of this, this comment seeks to provide some solutions for the Court, by illuminating the historical development of the Court and its place in the Muslim world, and exploring the points of contact and tension between international criminal law as it is traditionally conceived by Western international law institutions and Islamic law.
The Court is viewed as a Westernized adjudicator of international criminal law (ICL), which has alienated the East. This comment seeks to examine the extent to which the ICC has under-represented non-Western laws, traditions, principles, rules, and practices in its legal structure and system, and more importantly to propose solutions for the Court in order to address this issue. As Fraser has warned, “despite the salience of Islamic law for the ICC, recognition, engagement and understanding is only nascent.” 1 This comment explores this issue in the specific context of the Islamic legal tradition across the Arab world. The majority of populations in Arab countries, apart from Lebanon, are Muslims, and their constitutions place Islamic—or Sharia—law at the heart of their legal and political administration. Thus, it is important to clarify that this comment refers only to Arab States, and not to all Muslim majority States in the Muslim world.
Arab States refer to those post-colonial societies whose present realities have been significantly influenced by the colonial experience. This necessarily underpins their view of the imperialistic structures that persist within international criminal law (ICL), which, as this comment demonstrates, is central to the tension that exists between the westernized, or Eurocentric, conception of ICL that dominates international legal institutions, and Islamic law. The timely nature of this question cannot go unacknowledged, with many investigations under consideration by the ICC relating to Muslim-majority States, and the prominence of conflict in Islamic contexts,2 it is time for an international court that is truly universal in its jurisdiction. More particularly, this comment addresses the extent to which Muslim majority states are skeptical of the ICC and its reliance on western systems of justice, and the extent to which Islamic law aligns with the principles of the ICC and could be better incorporated into the ICC’s jurisprudence.
As Section II of this comment outlines, the broader context in which Arab States exist underpins and explains their lack of engagement with ICL. This was apparent in the process of enacting the Rome Statute establishing the ICC, which highlighted the definitional discrepancies that exist between ICL and Islamic—or Sharia—law, particularly in the realm of international human rights law and the prohibition of torture, a jus cogens norm alongside the international crimes contained within the Rome Statute. This was exacerbated by the preclusion of reservations being made by signatory States to the Statute, in order to avoid interpretations of the Statute that are inconsistent with Sharia being enforced upon those States who follow Sharia law.
Section III explores the extant relationship between the Arab world and the ICC, and in particular highlights the sovereignty concerns raised by Arab States around the ICC, on foot of the power afforded to the United Nations Security Council (S.C.) to refer and defer cases to the ICC. This power has operated unequally against Western States on one hand, and Muslim majority States on the other. Section III also demonstrates the unequal operation of the ICC itself, through actions of the Office of the Prosecutor (OTP) and the abuse of principle of complementarity by powerful Western States to avoid accountability for the commission of international crimes. This concern has again very recently resurfaced with allegations of extra-judicial killings by the British elite Special Air Services (SAS) in Afghanistan during joint British-American occupation. This section does, however, highlight a certain hope regarding the ruling on the Court’s competence over Palestine.
Section IV examines the way forward for the ICC, exploring the various points of tension and contact that exist between ICL and Islamic law and proposes solutions that the ICC could implement in order to move forward with a more inclusive development of ICL.
II. Islam, Arab States, and the Rome Statute
Despite Islamic Law (Sharia) being applied differently in Arab States, the compatibility of treaty law with Sharia has been one of the determining factors for Arab States when deciding whether to ratify a treaty or not. This is reflected in the practice of Arab States to make reservations—known as the Sharia reservations—to human rights treaties, by which they arguably intend to avoid any incompatibilities between the treaty provisions and Sharia rules and principles.3 Therefore, it is reasonable to conclude that one of the reasons preventing most of the remaining Arab States from ratifying the Rome Statute is their persisting concern that the Rome Statute is prone to being implemented in a manner incompatible with Sharia.4
Arab States expressed their concerns during the Rome Conference about specific provisions in the Statute and their incompatibility with Sharia. They expressed concern regarding the inclusion of forced pregnancy as a separate act constituting crimes against humanity. In the opinion of Arab States,5 forced pregnancy was related to rape and does not warrant separate mentioning. They expressed fear that its inclusion would impact their national legislations regarding abortion.6 To accommodate their concerns, paragraph 7(2)(f) was added to stipulate that the definition of forced pregnancy “shall not in any way be interpreted as affecting national laws relating to pregnancy.” The revival of debates regarding the definition of torture as a crime against humanity suggests that Arab States were also concerned that the definition of torture in the Statute could be interpreted to include certain forms of punishments in Islamic law. Two alternatives were presented: the first was to exclude from the definition of torture “pain or suffering arising only from, inherent in or incidental to, lawful sanctions [in conformity with international law]”, the second alternative was to employ the definition of torture in article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (Convention Against Torture) which excludes “pain or suffering arising only from, inherent in or incidental to, lawful sanctions” without qualifying the lawful sanctions as being in conformity with international law.7 It was then accepted that article 7(2)(e) retains the language of the Convention against Torture.8
Furthermore, Arab States expressed their preference of allowing reservations to the Rome Statute.9 Nevertheless, this proposal was rejected by other states, and article 120 was included in the Statute, stipulating that “no reservations may be made to this Statute.” Arab States expressed concern about this and the Sudanese representative—speaking on behalf of the Arab Group—stated that “the right to express reservations should also have been granted. The removal of that right by article 120 would be an obstacle to accession.”10 Although there was no explicit reference to Sharia, it is reasonable to conclude—based upon their practice—that Arab States are in favor of allowing reservations to avoid incompatible interpretations with Sharia.
Although there have been elaborated studies on the compatibility of Sharia and ICL,11 those studies do not seem to constitute a strong catalyst for abolishing Arab States’ concerns about the Rome Statute. One reason for that seems to be the functioning of the ICC itself, and its non-engagement with Islamic Law.12 Although the ICC could resort to Islamic Law under Article 21(1)(c) of the Rome Statute,13 the Court has not, to date, conducted a deep analysis of Islamic principles of criminal law, despite establishing its jurisdiction over situations in States whose national laws have been enacted on the basis of Islamic Law.14 Ignoring Islamic principles affects the Court’s legitimacy by affirming the view that international criminal law is a “distinctly Western venture”.15 This lack of engagement with Islamic law has even driven several scholars to call for the establishment of a hybrid court for the prosecution of members of the Islamic State for crimes committed in Iraq and Syria.16
The ICC’s latest decision on the situation in Mali could amplify Arab and Muslim States’ concerns. In that decision, the Pre-Trial Chamber upheld the Prosecutor’s conclusion that the installation and implementation of Sharia law in Timbuktu proves the existence of an organizational policy to commit a widespread or systematic attack against a civilian population.17 Not only this, but the Pre-Trial Chamber also accepted the Prosecutor’s contention that applying different forms of Sharia punishments amounted to torture under Article 7(2)(e) of the Rome Statute. It explicitly stated that cultural relativism was rejected in international criminal law. The ramifications of this decision have been highlighted by the defense for Al Hassan, the latter stating that “the allegation that Sharia law constitutes a policy to commit an attack against a civilian population is problematic on many legal and evidential levels.” It also pointed out that upholding the Prosecutor’s contentions:
[W]ould have catastrophic effects as concerns the potential universalization of the Rome Statute: clearly, States will not ratify the Statute if the mere fact that Sharia law is practiced in their territory renders them liable to be prosecuted for war crimes and crimes against humanity.18
Regarding the Court’s interpretation of torture, it stated that pain or suffering arising from, inherent in or incidental to, lawful sanctions can only be excluded from the definition of torture when “in conformity with international law”. Consequently, the Court considered that the different forms of punishments in Sharia law were not in conformity with international law and were thus considered acts of torture. The Court based its decision on recommendations and statements made by the Committee against Torture and other human rights bodies and legal scholars. However, the Court neither took into consideration the preparatory works of the Article 7(2)(e) of the Rome Statute nor those of article 1 of the Convention Against Torture. By referring to both, the Court would have recognized that there was no consensus reached among the States regarding the interpretation of the term “lawful sanctions” and thus States had accepted to resort to constructive ambiguity in that respect.
In the drafting history of the Convention Against Torture, a proposal was presented to exclude from the definition of torture “pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.”19 However, Western States refused to refer to the “Standard Minimum Rules for the Treatment of Prisoners” as this would render the latter a binding instrument.20 At the same time, those States expressed their concern that excluding lawful sanctions without any qualification would weaken the definition of torture and thus argued for the limitation of the exception only to lawful sanctions that are in conformity with international law.21 Nevertheless, a compromise was reached among the negotiating States to delete any limitation to the lawful sanctions. This compromise was made to ensure the ratification of Arab and Muslim majority States applying Sharia punishments.22 Nor did the Court examine whether there is any subsequent State practice establishing the agreement of the parties regarding the interpretation of the term “lawful sanctions”.23 By this, the Court decided to give supremacy to the law de lege ferenda over the law de lege lata. Furthermore, the Court implicitly granted to the statements of the Committee Against Torture and the other human rights bodies a binding character; a character long rejected by States. Such a flawed decision that fails to conduct a thorough examination of different State opinions and does not take into consideration non-western traditions and cultures would further undermine the legitimacy of the ICC in the eyes of the Arab world. As Cherif Bassiouni has highlighted:
ICL is proscriptive, whereas IHRL is prescriptive. In other words, ICL criminalizes, while IHRL does not. One of the consequences of this essential distinction is that ICL is at least theoretically bound by principles of legality, which requires its terminology to be more specific, whereas international human rights law, which is not bound by such a requirement, tends to be more general.24
III. An Overview of the Relationship Between the Arab World and the ICC
As previously mentioned, the Arab States role in the establishment of the ICC is generally recognized as a positive one.25 Nonetheless, this has not guaranteed their accession to the Rome Statute. At the end of the Rome Conference, six Arab States, namely Libya, Iraq, Yemen, Qatar, Syria, and Sudan, joined the United States (U.S.) in opposition to the Statute.26 By the time the Statute was opened for signature, only two Arab states ratified it, namely Jordan and Djibouti. Other Arab states followed, becoming signatories in 2000, yet Qatar, Libya, Lebanon, and Iraq neither signed nor ratified the Rome Statute at that date.27 As of today, five Arab countries have ratified or acceded to the Rome Statute, namely Jordan, Djibouti, Tunisia, Palestine, and Comoros.
The current world legal order has developed from the Western legal systems of great European powers,28 meaning that the majority of the modern world are expected to rely on the oversight of Westernized institutions such as the United Nations (U.N.). Indeed, many of the “Great Powers” that sit as permanent members on the S.C. often do not feel obliged by the rules under the U.N. Charter and, as a result, use force under the cover of, for example, war against terrorism.29 This alleged protective oversight, therefore, is rightly perceived by other nations as imperialistic—something that remains an obstacle for universal acceptance. Although the Rome Statute was compromised to accommodate some of the Arab States’ concerns, sovereignty remains one of the main issues pulling them back from ratifying the Statute. Due to the role granted to the S.C. in referring and deferring situations to the ICC, Arab States feared that the ICC would be a political tool in the hands of Western countries to pursue their interests and infringe upon the sovereignty of Arab States.30 So far, the only two situations referred to the ICC by the S.C. have been Sudan and Libya. Indeed, Gissel highlights that this could be seen to pull “the entire doctrine of equality before the law in a sphere which ought to be insulated from such extraneous influences.”31 These concerns have not diminished through the functioning of the ICC but, rather, have been buttressed. The ICC’s engagement with Sudan meant other Arab States became involved, particularly with regard to Al Bashir’s arrest warrant. Its issuance in 2009 spurred the Arab League’s support for Sudan, which was propelled further when Jordan, a State Party to the Rome Statute, failed to arrest the former Sudanese President during his attendance at the 28th Summit of the Arab League in Amman, in March 2017. In contrast to how the ICC handled South Africa’s failure to arrest, the ICC referred Jordan’s inaction to the S.C. and the Assembly of States Parties.32 Both Jordan and the League of Arab States contended that these referrals “constituted an abuse of discretion.”33 Further, the Court’s differential treatment of Jordan from South Africa meant that the Court had not relied on the specific facts of the case but rather on “the situation of a different State Party.”34 Instances such as these create the “ambivalence towards universal justice [that] defines the relationship between the Arab League and the [ICC, who is] perceived as a neo-colonial instrument of power.”35
Not only did the indictment of the then Sudanese President receive opposition from the Arab Governments, public opinion in Arab States also opposed it. According to a survey, conducted by WorldPublicOpinion.org in seven Muslim majority and African States (namely Egypt, Turkey, Kenya, Nigeria, Pakistan, Iraq, and the Palestinian territories) regarding charging Al Bashir before the ICC, a majority disapproved the indictment: the Palestinian territories (70% with 25% approving) and Egypt (52%, with 47% approving). Iraqis were evenly divided (35% approved, 37% disapproved).36 This adds to the extant negative public opinion generated by the trial of the former Iraqi President Saddam Hussein. Arab public opinion viewed the trial “as an American-backed enterprise intended to justify an unpopular war.”37 It is without doubt that public resentment strengthens the prevailing reluctance to engage with the institutional framework of ICL.
However, the Arab Spring in 2011 was thought to be a turning point in the Arab-ICC relationship.38 After ousting President Ben-Ali, Tunisia’s interim government ratified the Rome Statute.39 Along the same lines, the Egyptian Ministry of Foreign Affairs pledged to ratify the Statute.40 Morocco, on its part, included article 23 in its Constitution which criminalizes three core crimes of the Rome Statute (crimes against humanity, genocide, and war crimes).41 Moreover, the ICC held its first regional conference in Qatar, sponsored by Qatar and the League of Arab States, a step recognized as a “a dramatic and impressive shift in the attitudes of the Arab world towards international criminal justice generally, and the International Criminal Court, in particular.”42 During the conference, the ICC launched a campaign, entitled “Calling Arab Lawyers”, to encourage Arab counsels to participate in the Court’s proceedings, highlighting the importance of language and culture in understanding the conflicts from which cases arise before the Court.43
Soon, it became recognized that the Arab Spring was not a strong enough catalyst for improving Arab engagement with the ICC. While there has been thirst for accountability in the wake of the Arab Spring, this—as rightly highlighted by Frédéric Mégret and Nidal Nabil—is not the same as “questions of accountability that the international community has emphasized through its investment in international criminal law.”44 Furthermore, the functioning of the ICC both prior to the Arab Spring and afterwards seems to hold back the remaining Arab States from ratifying the Rome Statute. Although Egypt pledged to ratify the Statute, its political relations with Sudan have delayed this step.45 Arab States also raised concern, during the Qatar Conference, about the ICC’s delay in responding to Palestine’s declaration to accede to the Court’s jurisdiction over events taking place in the Occupied Palestinian Territories after July 1, 2002.46 It took the ICC Prosecutor three years to decide that he was not competent to decide on the validity of Palestine’s declaration.47
While reluctant to ratify the ICC, Arab States did not reject the referral of the situation in Libya by means of Security Council Resolution 1970.48 However, the NATO intervention in Libya and the killing of former President Mu’ammar Gaddafi revealed the instrumentalization of the ICC by Western States to pursue regime change.49 After using the ICC “to frame the intervention in the name of justice and to marginalise and pressure Gaddafi,”50 Western powers quickly abandoned the Court by tacitly supporting the right of the new government to try those responsible for the commission of grave crimes. Similarly, Arab States became more inclined to support domestic prosecutions rather than prosecutions at the ICC.51 The Arab League explicitly supported Libya’s quest to try Saif El Islam domestically.52 Mauritania has surrendered El Senussi to Libya, refusing the ICC’s repeated calls for his extradition.53 The newly appointed ICC Prosecutor, Karim Khan, seems to have received little support during his first briefing on the situation in Libya to the Security Council, as Western states merely called upon the national authorities to secure the arrest and surrender of those wanted by the ICC.54
The instrumentalization of the ICC in the Libyan conflict was a mistake not to be repeated in the Syrian conflict. This has been reflected by the number of Arab States supporting a referral by the Security Council of the situation in Syria to the ICC. Although Saudi Arabia and the Arab Group presented a proposal, that later became a U.N. General Assembly Resolution, calling for the accountability of those responsible for the commission of international crimes and calling upon the S.C. to consider appropriate measures in that regard,55 proposals at the S.C. for an actual referral were explicitly supported by only a few Arab States (namely Libya, Jordan, Qatar, UAE, and Saudi Arabia).56
The perception of the ICC as a neo-colonial Court seems to be reinforced by its decision regarding crimes committed by U.K. military forces in Iraq and its decision regarding the situation in Afghanistan. Although the OTP decided that there is reasonable basis to believe that crimes were committed by members of British forces against Iraqi civilians in detention, the OTP decided to close the preliminary examination into the situation in Iraq because the U.K. has been conducting its own investigations into allegations of crimes committed by its military forces. Despite having concerns about the comprehensiveness of those investigations, the OTP stated that there was no evidence to conclude that:
[The] UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions (Article 17(1)(a)) or that decisions not to prosecute in specific cases resulted from unwillingness genuinely to prosecute (Article 17(1)(b)).57
This decision has spurred strong criticism and sustained Arab States’ concerns that the principle of complementarity provides a leeway to powerful states to avoid accountability for the commission of international crimes.58
Not only this, but the decision also paints a false picture of said crimes being prosecuted adequately at U.K. national courts. The worst part of the report in terms of narrative, however, is that it perpetuates falsehoods from the lead up to the invasion of Iraq. It describes the events in the following paragraph:
After the January 1991 Gulf War, the Security Council adopted a resolution setting out ceasefire terms, including ending production of weapons of mass destruction and permitting inspection teams on the territory of Iraq. In September 2002, the US and UK argued that Iraq was in material breach of the relevant resolutions and was seeking to develop weapons of mass destruction. UN weapons inspectors stated they had not found any ‘smoking gun’ in their search for weapons of mass destruction but noted that this was ‘no guarantee that prohibited stocks or activities could not exist at other sites, whether above ground, underground or in mobile units.’ The US gathered a coalition of 48 countries, including the UK, for the stated purpose of searching and destroying alleged weapons of mass destruction in Iraq.59
This misleading description implies that S.C. Resolution 699 of 1991 authorized the invasion and does not mention that the S.C. itself never endorsed this view, or that this has been a highly disputed question in international law. The cited inspectors’ report detailed that no evidence of weapons of mass destruction (WMDs) had been found and that Iraqi authorities were cooperating with the inspectors, yet the above paragraph chooses to focus on a sentence of the report allowing for the hypothetical existence of WMDs.60 Moreover, in a footnote, the report relies on The Assessment of the British Government on Iraq’s Weapons of Mass Destruction, a document now known as the “dodgy dossier”, a piece of pro-war propaganda that has long been discredited.
Furthermore, the OTP’s Report labels the Iraqis who resisted the foreign occupation as “insurgents” throughout the document. As historian Craig Murray notes:
The idea that the invaders were the respectable power and the locals were ‘insurgents’ may be the language of the British MOD and may be adopted by the Daily Mail, but it should not be the language of the International Criminal Court.61
This biased narrative further contributes to delegitimizing the ICC in the Arab world. Additionally, the U.S. would not allow the Iraqi government any attempt to become a State party to the Rome Statute because of the atrocities and numerous violations of international law, in particular the law of armed conflict, committed by its soldiers against the Iraqi civilians and those placed hors de combat during their invasion of Iraq in 2003 and its aftermath period, until their withdrawal in 2011. Furthermore, a number of cases, such as Abu Ghraib prison and the so called Nisour Square Massacre, were undergone without a transparent and impartial trial. This has enhanced the belief that the international community is paralyzed and silent towards such violations.
In addition to that, the Pre-Trial Chamber II (PTC) decision on the situation in Afghanistan raises many legitimacy concerns. In that decision, the PTC rejected the request of the OTP to open an investigation into the situation in Afghanistan because it would not “serve the interests of justice”.62 This decision was subject to criticism63 and resulted in alarming calls for reform.64 Refusing to open an investigation in Afghanistan that could have ended in investigating crimes committed by U.S. troops and the Central Intelligence Agency (CIA) was regarded as an act of succumbing to pressure from the Trump administration,65 affirming Arab States’ concerns that the ICC is only a Court for the weak states and never a tool for achieving universal international justice. Cautious hope arose when the PTC decision was reversed by the Appeals Chamber.66 However, the following sequence of events was not promising. The Government of Afghanistan—led by then-President Ashraf Ghani—was granted the request to defer the investigation to the Afghan National Authorities. Then, on September 27, 2021, the Prosecutor filed an application before the Pre-Trial Chamber seeking authorization to resume investigation in Afghanistan because “there is no longer the prospect of genuine and effective domestic investigations.”67 Nevertheless, he emphasized that his investigation will focus “on crimes allegedly committed by the Taliban and the Islamic State—Khorasan Province and to deprioritise other aspects of this investigation.”68 This implies that crimes committed by U.S. Troops and the CIA will be outside the scope of his investigation. This decision has been criticized.69 The decision to deprioritize investigations against the U.S. troops was regarded as a “bow to political as well as resource pressure,”70 and constitutes another decision that will contribute to delegitimizing the ICC in the eyes of the Arab world amid concerns about its double standards and its selectivity.
Concerns surrounding the ability of the ICC to investigate alleged crimes committed by U.K. troops in a Muslim majority state have recently resurfaced, with the revelations by investigative journalists at the BBC of extra-judicial killings committed against Afghan detainees by British soldiers, with apparent impunity, during the period of 2010 to 2013, when Afghanistan was under American-British occupation.71 The reported failures of the British Military to investigate and report such allegations goes to the very heart of Arab States’ concerns over apparent inapplicability of ICL to Western, imperial powers. Indeed, in response to the allegations, the U.K. Ministry of Defense accused the journalists of jumping to “unjustified conclusions from allegations that have already been investigated” and indicate they would only investigate the allegations if new evidence comes to light.72 This is worrying, given the track record of impunity for U.K. actors in the Iraq and Afghan conflicts, and will likely exacerbate the distrust harbored by Muslim majority states and Arab countries towards the ICL framework and institutions.
Nevertheless, the Court’s very recent decision affirming its jurisdiction over crimes committed in Palestine raises hope that there could be light at the end of the tunnel in the relationship between the Arab States and the ICC.73 The League of Arab States has welcomed—in Resolution 8594 adopted by the Council of the Arab League at the ministerial level at its extraordinary session held in Cairo on February 8, 202174—the ICC decision regarding Palestine. It has also emphasized in its 155th Extraordinary Session held in Cairo on March 3, 2021 that any peace plan inconsistent with the terms of reference for the Middle East peace process will be rejected and cannot succeed; to reject any political or financial pressure brought to bear on the Palestinian people or its leadership in an attempt to impose unjust solutions to the question of Palestine.75 The ICC’s continued engagement in the situation in Palestine will certainly contribute to enhancing the legitimacy of the Court in the Arab world, if it is able to overcome pressure exerted from powerful states.76
Before concluding this overview, it must be mentioned that the failure on the part of the Arab States to engage with the institutional framework of ICL does not mean that the connection is lost between the Arab world and the normative framework of this field of international law. In various forms, national legislations of Arab States have incorporated international crimes. According to the International Committee of the Red Cross’s Eighth Periodic Report on the implementation of international humanitarian law at the level of Arab States (2015–2018), Arab States’ incorporation of international crimes into national legislation could be grouped in four categories. Incorporation has either taken the form of a stand-alone legislation on international crimes,77 or the form of generally integrating some aspects of those crimes into military codes, or incorporation has taken the form of generally including some international crimes in penal codes, or it has taken the form of a legislation establishing a special domestic tribunal, or fact finding Commission, related to international crimes.78 Proposals for stand-alone legislation for international crimes is still pending in Egypt,79 Kuwait,80 Morocco,81 Tunisia, and Palestine.82 In that context, it is noteworthy that adopting those pieces of legislation has been incentivized by their importance to evade the jurisdiction of the ICC.83
IV. Overcoming the Residual Barriers to Universal Acceptance of ICL
This comment has covered a substantial part of the history of international law, including its origins, its overall development into the modern world, and, more importantly, the inherent flaws it continues to carry. However, the only way to progress modern international law away from the aforementioned issues, is to suggest a way forward, in order to bridge the gap between the ICC and the Arab world. Indeed, the structural differences between both legal systems, arising from the traditional and religious foundations of Islamic law, on one hand, and the secularity of ICL84 on the other, contain a certain flexibility in both legal systems which can prove useful to developing a sustainable and complementary relationship between them. For instance, just as international judges assume the responsibility of interpretation, so too does Islamic law rely on doctrinal interpretation.85 The laws in both systems are not strictly stagnant, but instead are capable of some evolution to accommodate more present and relevant social needs. There is a necessity, therefore, to promote rigor in both research and study of Islamic legal norms, as well as dialogue within and between the two traditions.86
Scholars such as Mashood Baderin have advanced a number of suggestions to support the argument that modern international law must be further developed to create a more inclusive system. To begin with, Baderin develops the argument that the majority of the academic questions posed to general international law are often dealt with by strict Western, Eurocentric legal scholars, who naturally have limited knowledge of the effect it will have on other legal systems.87 To exacerbate the problem, there is also little consideration of relevant contributions that have been made by other legal systems, such as Islamic law. If these contributions are given fair notice then it may encourage an increase in the universal acceptance of international law.88 The first argument, therefore, is to tailor the response to academic questions to involve better inclusion of more than one legal perspective in order to create a more accurate response—a multi-disciplinary approach.89 Another suggestion that is advanced by Baderin is that there must be an allowance for international law to be developed further. While the theory of legal pluralism is the picture of an ideal international legal system, there must be a recognition of what Baderin refers to as the pluralistic reality.90 While the concept of legal pluralism is good, the development of current modern international law must include the consideration of other legal systems around the world as well as an understanding of what role other legal systems can play in the overall development.
To begin with, there must be an understanding that there are three types of legal pluralism: combative legal pluralism, competitive legal pluralism, and co-operative legal pluralism.91 As co-operative legal pluralism is more centered around the notion of complementarity, naturally this is what modern international law should aim for. Co-operative legal pluralism will complement other domestic legal systems within the international criminal justice system in order to encourage universal acceptance.92 The goal is co-operative legal pluralism, and in order to achieve this, we must move on from the primarily exclusive Eurocentric approach taken towards modern international law, and begin to encourage inclusive analysis. There have been suggestions as to how this can be achieved. For example, as already mentioned, there is an obligation to change the exclusively Eurocentric approach to change the overall narrative of ICL and the overall judicial interpretation and recognised principles of ICL, as well as its political manipulations.93 Similarly, there is also an obligation on Muslim-majority states to fulfil their primary obligation of prosecuting domestically where necessary, fulfilling their secondary obligation of regional responsiveness, and maintaining co-operation with the ICC if they fail in their obligations.94
The inherent difference between traditional ICL and Islamic law is undeniable—ICL being rooted in principles of secularism and legal positivism, in contrast to Islamic law—yet not insurmountable. For example, the chasm between the embrace of modernity by the two legal traditions creates division, whereby religious States feel they are unrepresented in the developing world order that is dominated by secular institutions and frameworks. This tension manifests through the so-called “sword of Damocles that is the conflict of Islamic doctrine with ‘universal’ human rights.”95 Although international treaties and conventions are acknowledged by many states, and indeed many Muslim majority states, the violation and infringement of said human rights are still occurring in varying degrees of intensity.96 Steiger demonstrates that the likely reason behind the inconsistency of human rights implementation is primarily because many nations perceive the notion of democracy and liberalism as western conceptions that only take into account European thought in an attempt to increase international dominance.97 It is often the case, therefore, that based on the belief that public international law is too western-focused, many nations go further than refusing its implementation by also questioning its validity in the first place.98 It follows that many Arab nations are adverse to the process of modernity within their legal systems, viewed as an imperialistic, colonial process imposed by the militarily and economically dominant West.99 In relation to the role of modernity alongside the implementation of Sharia law, Mohamed Khalil demonstrates the friction between Islam and modernity being caused by the issue, inter alia, of proper interpretation of Islamic law, and the compatibility of Islam with democracy and human rights (modernity from a Western perspective advocates the encouragement of a democracy that may not align with Islamic values).100
Corporal punishments laid out in Islamic law are inherently contrary to modern, universal human rights standards, and particularly, as outlined above, the prohibition of torture.101 This highlights a certain irreconcilability between the two systems, which is rooted in maxims of ICL, such as the one contained in Article 22 of the Rome Statute, which prohibits derogation from a minimum human rights standard. This creates a perception among Islamic systems of Western human rights as an imposition.102 Furthermore, the dearth of Muslim judges sitting on benches of international tribunals in proportion to the fifty-seven Muslim majority States who are members of United Nations exacerbates this problematic perception in the Muslim World that Western legal principles, and Western justice, are also being imposed upon them.103
In light of this, to further encourage universal acceptance, Baderin suggests adopting an object and purpose paradigm approach towards the analysis of international treaties. In adopting this approach, one must analyse the object and purpose of the treaty that is often outlined in its preamble.104 If only the substantive content of the treaty is focused on, it will naturally lead to the argument of imposed hegemonic dominance and will not be willingly applied on an international scale.105 If steps such as these are taken into consideration and, ideally, enacted, then it may encourage future universal acceptance and a better designed universal international legal system that is more inclusive of more than one legal system.
In relation to designing a system that encourages better inclusivism, other legal perspectives must be included in the discussion. This can be achieved through inviting experts of different legal systems to the drafting of present and future international treaties, allowing an open-table discussion of how current modern international law can be improved, and inviting more legal experts of different backgrounds into the ICC itself. In relation to the first advancement of inviting experts of different legal backgrounds, the inclusion of Third World Approaches to International Law (TWAIL) scholars is crucial in this respect. While TWAIL scholars have typically focused on the difficulties of the foundations of modern international law, there have been some suggestions provided that could improve the situation.106
For example, as already mentioned, there have been some scholars of various backgrounds, such as those from Asia, that have criticized the Eurocentric approach towards the historiography of international law. These filtered versions of history have been utilized by European scholars to create an international system that is far from an accurate representation of other legal systems. This discussion is similar to that advanced by Baderin, aforementioned, in that this naturally creates combative legal pluralism—one version of events versus another. If this method of narrative continues unchecked, universal acceptance of international law will always waiver.
A similar discussion can be had over the notion of cultural difference. Ronald Dworkin advances the argument that if we continue to emphasize the cultural differences between nations without attempting to find some form of middle ground, there will always be an obstacle against modern acceptance of universality.107 The primary focus on scholars that deliberately dismiss the inclusion of religion in public and political life has automatically framed the matter entirely as one of religious irrationality versus modern secular rationality.108 If narratives such as this continue to dominate the conversation of modern international law, any notion of religious influence will be disregarded as irrational and so will not be afforded sufficient consideration. To create a system that is centered around the notion of co-operation, there cannot continue to be a pattern of selectivity with what is considered to be suitable inclusion.
In taking the time to develop an understanding of Islamic legal systems, we can arrive at a number of similarities that can be utilized to develop a more inclusive system. For example, Kamari Clarke demonstrates that the foundations of most Islamic legal systems are based on the authority and teachings of the Prophet Muhamed—similar to western-centric legal systems that are historically based on the foundations of Christian-Judeo principles.109 While each system is centered around its own particular regime of truth, and arguably its own religious perspectives, it is only the western-centric legal systems that narrate the history and future of international law while regarding alternative viewpoints as irrational.110
While a substantial argument can be made for the incompatibility of modern international law and its implementation at the ICC with Islamic law, it is important to highlight that it was not an idea that was entirely rejected by many Islamic nations. For the majority of Islamic nations, there was no objection to the introduction of the ICC.111 To provide an example of the support for the ICC from some Muslim states, a delegate from the Islamic Republic of Iran declared that “the establishment of an international criminal court, independent, universal, effective and impartial, would be a milestone towards achieving peace with justice.”112 There was a general consensus of satisfaction with the idea of international justice that drafters of the Rome Statute were proposing. However, it is questionable whether this agreed upon principle became a point of friction through the method in which the ICC operates and implements international criminal law. Other evidence provides that there was still plenty of support provided from nations that still had some reservations about the idea.
However, while there was a general consensus of satisfaction, this is not necessarily well reflected into unanimity over signatures and ratifications.113 As outlined in Section III, there were some concerns over the apparent threat to national sovereignty. The foundations of ICL, enforced by the ICC, were built on the principle of complementarity. The ICC should not be able to step in and take charge of a prosecution unless the concerned state is proven to be unwilling or unable to carry out effective proceedings. In theory, this method upholds the principle of complementarity as it allows the opportunity for a case to be handled domestically. However, as mentioned, many states were uncomfortable with the role and powers handed to the OTP to initiate proceedings where they deemed necessary.114 While some states were in favor of an independent prosecutor having the power to pursue prosecution where it was necessary, many nations believed this to be a threat to their state sovereignty and so remained wary of the role of the ICC. As Siraj Khan demonstrates, therefore, the reluctance surrounding the ICC was not necessarily relevant to Islamic law or Sharia. The concerns were primarily centered around an ineffective principle of complementarity that could be overlooked to threaten state sovereignty.115
However, while there is an important note to make that the inclusion of Sharia law is not always one of the primary obstacles towards ratification, there are some discussions to examine that emphasize the role of Sharia law. In situations where there is a choice to accept ratification of the Rome Statute, there can be a general reluctance to do so. The issue is often relevant to the subject of international human rights. As discussed in detail above, there are different ideals that are advanced from differing cultures on topics such as human rights—its implementation often varies according to local religious practice and belief. An act that is committed in Saudi Arabia, for example, may be of no concern in the state itself. However, from the point of view of a European nation, for example, the act could be one that warrants investigation and potential prosecution. If the understanding of certain concepts such as human rights continues to vary, there will always be a potential disagreement in relation to its implementation. It is this possibility of disagreement that often leaves some states concerned that if they were to ratify the Rome Statute and incorporate it into domestic legislation, the ICC would pursue prosecution against that state were certain acts which were previously not deemed to be unlawful.
Finally, having Islamic expertise participate in the Court process can illuminate the historical, political, social, and even geographical context in which Arab societies exist, which can improve Arab States engagement with ICL. This could empower the Court to truly engage with, and apply, Islamic legal concepts, where applicable, to matters that come before it, while ensuring principles of ICL remain strictly adhered to. This could apply particularly to a matter that concerns alleged offenses that occurred in Islamic jurisdictions, by alleged perpetrators who are Muslims, and in apparent pursuance of Islamic laws, as was the context of two recent prosecutions brought before the ICC in the cases of Al Mahdi and Al Hassan (ongoing).
V. Concluding Remarks
To conclude the aforementioned suggestions and discussions, the overall takeaway is that there must be a more effective method of taking into consideration alternative viewpoints of different legal systems that does not primarily focus on a western perspective. While the history is inevitably from a western perspective, as during its development there was not necessarily an open discussion or consideration of alternative legal systems, there is still an opportunity to adopt more inclusive methods of developing a future international legal system that can truly be applied internationally.
The message must be conveyed to the ICC that the interpretation by its judges of the provisions of the Rome Statute should benefit from the plurality of legal traditions that occupy our world, in order to make the adjudication of ICL a truly universal and far-reaching mechanism of justice. The undeniable differences that exist between the foundations and operation of ICL and Islamic law respectively do not justify the Court simply setting Islamic law to one side, in favor of traditional ICL. Indeed, as this comment has demonstrated, such differences are not wholly irreconcilable.
In the context of Islamist militant groups who stand before the ICC, it is submitted that the legality of their acts must be examined through the lens of Islamic legal principles, and not solely through that of Western ICL principles, in order to legitimize such legal scrutiny in the eyes of Muslim majority States.
The ignorance of Islamic law by the ICC is counter-productive, serving only to further alienate the Arab world from its jurisdiction, thus weakening its own legitimacy and outreach. The implications of this unfamiliarity with other legal traditions are already evidenced through the Court’s lack of reach to Arab countries, manifested through feelings of distrust and refusals to cooperate with ICC warrants, and the distortion of Islamic law by extremist militant groups to justify their contravention of ICL. This appears particularly reckless on the part of the Court in light of the submissions made in this comment concerning the potential for these legal traditions to collaboratively implement the most fundamental laws in our universal society and uphold the most important of humanity’s values.
In order to develop more inclusive legal pluralism, we must adopt a co-operative stance rather than a combative one. Combative legal pluralism has played a substantial part in the history of international law by consistently highlighting the strong cultural differences that has long justified a single-minded development. Provided that the concerned cultural differences can be examined and settled in an open discussion between scholars and legal practitioners from multiple backgrounds, there is a better chance that future international law can be developed from a more co-operative perspective. As long as scholars and legal practitioners continue to sit down with one another and continue the discussion on how things can be improved through a more inclusive consideration, we may at some point achieve the idealistic reality of an international legal system that operates fairly on the international stage.116 The Court will undoubtedly be presented with ample new opportunity to work towards this reality, as it will likely be confronted with matters from various Muslim majority States, including Myanmar/Bangladesh, Palestine (as mentioned above), Iraq, Nigeria, Sudan, and perhaps even Syria or Yemen.117 Let us hope this can mark an end to Islamic exclusion from the ICC, and wave in a new era of true universality of ICL. As Rudolph Schlesinger put it nearly seventy-five years ago:
The time has come, perhaps, to discard or limit the visionary goal of “one law” or “one code” for the whole world and to substitute for it the more realistic aim of crystallizing a common core of legal principles.118
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
The views and opinions expressed here are those of the author acting in his personal capacity and do not necessarily reflect the views or position of Mr. Al Hassan’s Defense Team. ↩
Exploring Legal Compatibilities and Pursuing Cultural Legitimacy: Islamic Law and the ICC, in Intersections of Law and Culture at the International Criminal Court 379 ( 2020), & eds., paywall, earlier version available online, doi; see also Is There a Place for Islamic Law Within the Applicable Law of the International Criminal Court?, in Islam and International Criminal Law and Justice, 2 Nuremberg Academy Series 201 ( 2018), ed., available online. ↩,
This is not to assert the validity of Sharia reservations with the object and purpose of human rights treaties. On that subject, see , Sharia Reservations to Human Rights Treaties, in Max Planck Encyclopedia of International Law ( 2020), ed., paywall. ↩
Cf. & , What is the Measure of “Universality”? Critical Reflections on “Islamic” Criminal Law and Muslim State Practice vis-à-vis the Rome Statute and the International Criminal Court, in Islam and International Criminal Law and Justice, 2 Nuremberg Academy Series 175 ( 2018), ed., available online. ↩
See , U.N. Doc. A/CONF. 183/13 (Vol. II), Summary records of the plenary meetings and of the meetings of the Committee of the Whole 72 (Jul. 17, 1998) [hereinafter Summary Records], available online.
(Jordan was not among those Arab States). ↩
See Preparatory Committee, supra note 7, at 27.
(There were four alternatives for reservations. Most Arab States expressed preference for option four that suggests that no reservation clause should be inserted and that it should be left to the general rules of reservations in international law).
See , U.N. Doc. A/CONF.183/C.1/SR.19, Summary Record of the 19th Meeting of the Committee of the Whole, Comments of Syrian Arab Republic 252 ¶ 10 (Jun. 29, 1998) [hereinafter 19th Meeting], available online; 19th Meeting, supra note 9, at Comments of Iraq 256 ¶ 57; 19th Meeting, supra note 9, at Comments of Kuwait 254 ¶ 29. ↩
See Summary Records, supra note 5, at Comments of Libyan Arab Jamahiriya 102 ¶ 83.
(Previously, during the Rome negotiations, Libya pointed out that “Western values and legal systems should not be the only source of international instruments. Other systems were followed by a large proportion of the world’s population.”). ↩
Except for a reference to Islamic law in Situation in the Democratic Republic of the Congo, ICC-01/04-168, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ¶¶ 25–31 (Jul. 13, 2006), available online. ↩
On these points, among others, see Al Hassan’s defense submissions [hereinafter collectively Defense Submissions]: The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18-394-Red, Submissions for the confirmation of charges, ¶ 82 (PTC I, Jun. 4, 2019), [hereinafter June 4th Submission] available online; The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18, Defence’s final submissions regarding the confirmation of charges, ¶¶ 11–14 (PTC I, Jul. 31, 2019), available online. ↩
U.N. Doc. E/1978/34-E/CN.4/1292, Report of the Thirty-Fourth Session, 31 (Mar. 10, 1978), available online; see also , Art. 1 Definition of Torture, in The United Nations Convention against Torture and its Optional Protocol: A Commentary ¶¶ 42–53 ( Feb. 19, 2020), , & eds., 2d ed. paywall. ↩,
Annotations on the Provisions of the Convention, in The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 119 ( Jul. 1, 1988), & eds., paywall, doi. ↩& ,
Crimes Against Humanity: Historical Evolution and Contemporary Application 208–09 (Oct. 2014), paywall.
See , The Ratification and Implementation of the Rome Statute of the International Criminal Court by the Arab States: Prospects and Challenges (Dec. 2015) (Ph.D. thesis, University of Brunel), available online. ↩
Universality and Continuity in International Law 18 (Jun. 28, 2011), paywall; , A Seat at the Table: Islamic Law’s Neglected Potential in Universalising International Humanitarian Law, in Human Rights and International Humanitarian Law: Challenges Ahead 225, 238 ( May 20, 2022), & eds., available online, earlier version available online, doi. ↩& eds.,
The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-309, Decision under Article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender o[f] Omar Al-Bashir (PTC II, Dec. 11, 2017), available online. ↩
The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-367, The League of Arab States’ Observations on the Hashemite Kingdom of Jordan’s appeal against the “Decision under Article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir,” ¶ 37 (AC, Jul. 16, 2018), available online. ↩
The Arab World and the ICC: A New Chapter or Smoke and Mirrors?, Just. in Conflict (May 30, 2011), available online; see also , The International Criminal Court and the Arab Spring: Overcoming Bias, Increasing Engagement, in Human Rights, Human Security, and State Security: The Intersection 43 ( Jul. 2014), ed., paywall. ↩,
(Lebanon stated that voting in favor of the resolution was in line with the Arab Consensus). ↩
Between Justice and Politics: The ICC’s Intervention in Libya, in Contested Justice: The Politics and Practice of International Criminal Court Interventions 466–69 ( 2015), & eds., available online, doi. ↩,
(See Kuwait’s statement on the occasion of the ICC Prosecutor Fatou Bensouda’s briefing on the situation in Libya where it stressed that Libya has the primary responsibility in prosecuting perpetrators of international crimes and that the international community shall assist it in that respect). ↩
The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-130-Red, Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute (PTC I, May 1, 2012), available online. ↩
See , U.N. Doc. SC/14710, International Criminal Court Prosecutor, Outlining Vision, Calls for New Era of Engagement with Security Council to End Atrocity Crimes in Libya (Nov. 23, 2021), available online. ↩
See , U.N. Doc. S/2014/348, Draft Resolution (May 22, 2014), available online.
(In a proposal to refer the situation in 2013, only two states, Tunisia and Libya, explicitly supported it).
See , U.N. Doc. A/67/694 S/2013/19, Letter Dated 14 January 2013 From the Chargé D’Affaires a.i. of the Permanent Mission of Switzerland to the United Nations Addressed to the Secretary-General (Jan. 16, 2013), available online; see , The Countries That Support Referring Syria to the International Criminal Court-and Some Absent “Friends”, Amnesty Int’l U.K. Blog (Sep. 20, 2013), available online
(This remark was also made by a report issued by Amnesty International United Kingdom).
See also , Letter to Egyptian Foreign Minister on Syria and the ICC (Jan. 13, 2013), available online
(urging him to support the referral to the ICC). ↩
International Criminal Court Decision on UK Military in Iraq Rewards Obstructionism (Dec. 10, 2020), available online; see also , Complementarity (in)action in the UK?, EJIL Talk (Dec. 7, 2018), available online. ↩,
Notes for Briefing the Security Council (Jan. 9, 2003), available online; see also , U.N. Doc. S/2003/232, Twelfth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in Accordance With Paragraph 12 of Security Council Resolution 1284 (Feb. 28, 2003), available online. ↩, Executive Chairman UNMOVIC,
Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online. ↩
Interests of Justice? The ICC Urgently Needs Reforms, EJIL Talk (Jun. 11, 2019), available online; The International Criminal Court Decision on Afghanistan: Time to Start a New Conversation, Just Security (Apr. 13, 2019), available online. ↩
Situation in the Islamic Republic of Afghanistan, ICC-02/17-138 OA4, Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan (AC, Mar. 5, 2020), available online; On that decision, see , The Situation in Afghanistan, US Sanctions and the Historical Narratives Emerging From the ICC, EJIL Talk (Jun. 24, 2020), available online. ↩
The ICC’s Flawed Afghan Investigation: Why the Court Shouldn’t Let America Off the Hook, Foreign Aff. (Nov. 3, 2021), available online; , Prosecutor De-prioritizes ICC Investigation of US Torture Program, Opinio Juris (Oct. 1, 2021), available online. ↩,
Situation in the State of Palestine, ICC-01/18-143, Decision on the “Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine” (PTC I, Feb. 5, 2021), available online. ↩
See , U.S. Secretary of State, The United States Opposes the ICC Investigation into the Palestinian Situation (Mar. 3, 2021), available online;
(Several Western states have explicitly opposed the ICC decision on Palestine).
(British Prime Minister Boris Johnson issued a letter strongly opposing the ICC decision).
See , Australia Minister for Foreign Affairs, ICC Pre-Trial Chamber on Jurisdiction in Relation to the “Situation in Palestine” (Feb. 6, 2021), available online.
(Australia has issued a statement as well against the decision). ↩
Décret No 12-022/PR, Loi n°11-022/AU (Dec. 13, 2011) (implementing the Rome Statute), available online (Fr.), President de l’Union,
(As the report mentions only UAE and Bahrain, I would like to add Comoros). ↩
See , Eighth Periodic Report on the Implementation of International Humanitarian Law at the Level of Arab States 2015–2018, 26–27 (Nov. 24, 2019) [hereinafter Eighth Periodic Report], available online
(providing a comprehensive list of these laws). ↩
See & , The Law of Serious International Crimes Between UAE Reality and the Egyptian Mamluk 10 (Oct. 15, 2019) (Arabic); The authors also examine , Federal Decree Law No. 12 of 2017 on International Crimes (Sep. 18, 2017), available online; , Decree Law No. 44 of 2018 on International Crimes (Sep. 25, 2018), available online. ↩
See & , Islamic Law Across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials, 28 Denv. J. Int’l L. & Pol’y 145 (2000), available online; see also , Gender Violence Prohibition in IHL and in Sharia Law, 2nd Conference on Islam, Politics, and Law 59 (Nov. 27, 2009) (Presentation Abstract), available online. ↩
(“[Within Muslim societies,] the barriers to such research and dialogue are many: lack of support for such work, censorship and rigid or homogenous approaches to studying Islamic law, even profound misunderstandings circulated by authorities in public spaces.”). ↩
Islamic Socio-Legal Norms and International Criminal Justice in Context: Advancing an “Object and Purpose” cum “Maqáṣid” Approach, in Islam and International Criminal Law and Justice, 2 Nuremberg Academy Series 45 ( 2018), ed., available online. ↩,
(The prohibition of torture as well as cruel, inhuman, or degrading treatment is enshrined in the Universal Declaration of Human Rights, art. 5, International Covenant on Civil and Political Rights, art. 7, and the United Nations Convention against Torture, arts. 1, 16. The prohibition is generally considered to form part of jus cogens). ↩
Introduction: TWAIL-On Praxis and the Intellectual, 37 TWQ 1946 (2016), available online, doi; , Third World Approaches to International Law: A Manifesto, 8 Int’l Community L. Rev. 3 (Apr. 2006), available online. ↩, , & ,
Arab and Islamic States’ Practice: The Shari’ah Clause and its Effects on the Implementation of the Rome Statute of the International Criminal Court, in Islam and International Criminal Law and Justice, 2 Nuremberg Academy Series 145 ( Nov. 16, 2018), ed., available online. ↩,
See Conference on Legal Pluralism and Its Significance to the Work of the International Criminal Court (May 13, 2022), available online.
(This recent conference was organized by the present author and co-sponsored by the International Bar Association War Crimes Committee and Northumbria Law School. The author is currently working together with Professor Morten Bergsmo, Director of CILRAP, and a Team of Editors from the MENA region (academics and practitioners) on the Lexsitus-CLICC commentary (covering both the ICC Statute and RPE) which will be fully translated into Arabic and become available online before the end of 2022. Arabic-speaking lawyers, academics, and students, can now have free access to Lexsitus-Lectures, an audio-visual service where the subtitles of 234 films by leading ICL-experts from around the world are already available in Arabic. The Arabic subtitles are also available as separate transcript PDF files in the ICC Legal Tools Database. In the words of Bergsmo: “CILRAP is not only a ‘disseminator’, but a knowledge—and discourse-actor. Lexsitus-Lectures and Lexsitus-CLICC not only seek to disseminate information about the ICC Statute and RPE, but to foster independent knowledge-generation in international criminal law. The Arabic versions seek to do that among Arabic-speaking actors.”) ↩
Research on the General Principles of Law Recognized by Civilized Nations, 51 Am. J. Int’l L. 734 (Oct. 1957), paywall, doi; see also International Criminal Law at the Crossroads: From Ad Hoc Imposition to a Treaty-Based Universal System, in Future Perspective on International Criminal Justice 161, 177 ( 2010), & eds., available online,
(noting that a purely Western approach must be complemented by non-Western concepts of crime and punishment, such as Islamic law, to establish and develop a universal system). ↩
Suggested Citation for this Comment:
The International Criminal Court, Islamic Legal Tradition, and the Arab World: Quo Vadis?, ICC Forum (Jul. 25, 2022), available at https://iccforum.com/legal-traditions#Badar.,
Suggested Citation for this Issue Generally:
Has the ICC Under-Represented Non-Western Legal Traditions?, ICC Forum (Jul. 25, 2022), available at https://iccforum.com/legal-traditions.