Regulation of the use of force by Islamist non-state actors : using law to regulate such use of force

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THE AUSTRALIAN NATIONAL UNIVERSITY

Regulation of the Use of Force by

Islamist Non-State Actors

Using Law to Regulate Such Use of

Force

A thesis submitted for the degree of

Doctor of Philosophy of

The Australian National University

April 2011

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Except where otherwise indicated, this thesis is my original work.

Asmi J Wood

7 April 2011

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ACKNOWLEDGEMENTS

There are many people who helped me along my journey of life, my

parents and teachers, from the first deacon to my university professors. I

owe them all a debt of gratitude that cannot be measured, but thank you all

nonetheless.

I would like to thank my principal supervisor Professor Don Greig

for his patience, kindness, good humour and generosity. I would like to

thank the chair of my panel, Professor Simon Bronitt, for his kindness and

support particularly in the difficult times and thanks also to Professor Don

Rothwell on my supervisory panel. To Dr Mark Nolan and Ms Diana Irvine

for their continuous support to post graduate students, Ms Glenda Waddell

for her help with the word processing and Mr Andrew Vella for his

support with the IT, for their ready, friendly help and who make a project

such as this so very enjoyable.

I would also like particularly to thank Mr Ahmed Youssef, a

gentleman and scholar for his patience and forbearance as I struggled with

the Arabic. In this category is also Mrs Salwah Kirk who proof read the

final documents with great care and patience.

To the late Professor Phillipa Weeks a great teacher and mentor,

who encouraged me to work in academia and to undertake further

academic studies. In this category is also our tireless, ever enthusiastic

Dean, Professor Michael Coper, a person who stands by his colleagues

through thick and thin, always supportive, a mentor and for whom nothing

is impossible. Thanks to my colleagues at the ANU College of law, you

know who you are, many who have been through this PhD process and

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Finally I would like to thank my children Adam, Sara and Hannah

for their patience during this entire period. Thanks also to Sara for her

proof reading and to Hannah for organising my working papers and

maintaining them in such fabulous order. Last but not least to my dearest

late wife Sue, for her love, her patience, for her sacrifice and for allowing

me to do my PhD first when she was the better, cleverer of us. For her

unconditional love and support through the best and worst of times. God

Bless You and May You Rest in Peace. This is for you ....

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ABSTRACT

This thesis is a comparative legal examination, of the use of force by non-

State actors under both international law and the

shari'a.

It aims to identify

measures for regulating the use of force and thus to promote harm

minimisation. The narrower, more specific topic examined here is to

determine the legality, or otherwise, of the contemporary use, or threatened

use of force, by non-State Islamist groups. Such Islamist groups often work

together formally or informally, sometimes to achieve purportedly strategic

ends, for reasons variously termed 'fighting for Islam' or being engaged in

djihad/jihad

or 'holy war' (one of

djihad's

less accurate contemporary

definitions).

Consequently, how a legal methodology can be used to regulate this

behaviour is examined by a comparative analysis of (a) lawful pre­

conditions for the use of force and (b) tire legitimate means that may be

employed during armed conflict. Under international humanitarian law

(IHL), 'tire means of inflicting harm upon the enemy are not unlimited

' 1

and similarly the

shari'a

prohibits certain means of fighting and targeting

.2

As with IHL these

shari'a

limits, can form the basis for creating

shari'a

crimes, and for criminalising such acts when perpetrated during armed

conflict.

Shari'a

legal principles and methodologies applicable to

humanitarian and criminal law are identified. There are differences

between IHL and

shari'a

laws of war which are also examined. Islamic law

however goes further than harm minimisation during conflict, emphasises

that a state of justice is mandated and calls for the elimination of all

injustice as a positive obligation

,3

through the use of force if necessary and

Art, 22, International Convention with respect to the Laws and Customs of War on Land

[Hague II], The Hague, 29 July 1899,)

Muhammad Al-Mughirah al-Bukhari, The Translations of the Meaning of Sahih al-Bukhari

vol 4 (1976), 158; Abu'l Hussain Muslim, A l janii'us Sahih vol 3 (1972), 946; Rudolph Peters, jihad in Classical and Modem Islam (1996), 13 (& 172 n 6).

Qur'an 4:135.

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is achieved through djihad, a strictly defined and circumscribed concept.4

Herein however, can lie the root of the problem of the gratuitous use of

force, particularly when djihad is instrumentally employed absent its

regulatory framework.

Shari'a views on fighting, justice, life and the reason for hum an

existence, among other issues are also in many ways fundamentally

different from the moral yardsticks underlying the current secular

international legal regime, signalling potentially significant differences

with respect to the regulation of the legitimate use of armed force.

However, while the differences between the Western and Islamic legal

traditions may at first appear substantial, the laws that result are not

significantly different, arguably because w hat is considered 'criminal' in

both legal traditions is deeply rooted in the Mosaic Law.* 3 It is shown

therefore, that most differences are not irreconcilable.

The shari'a is a system of law and should be treated on its merits

rather than dismissed out of hand merely because of an emotive link with

'terrorism ' or with radical Islam. On the other hand, critique of the shari'a

(as with any system of law) is clearly legitimate and necessary, but for a

useful outcome, such criticisms should be fair and objective both options

examined in some detail in this thesis. This thesis concludes that the most

egregious international crimes can be criminalised under the shari'a and

examines practical means for doing this.

4 Q ur'an 2:190.

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A C K N O W L E D G E M E N T S v

ABSTRACT vii

Table o f Cases xvi

C ha pter 1 1

Is Islamist Violence Permissible Under the Shari'a? 1

Introduction 1

The Central Question 7

Al-Qa'eda 8

Humanitarian Law 9

Establishing a Baseline: Who is the Gatekeeper? 11

Methodology and Structure 16

Shari'a Crime Defined 22

Who Interprets the Shari'a? 23

Terminology and Language Issues 28

Thesis Structure and Layout 34

Conclusion 36

C ha pter 2 41

Speaking Truth to an Unjust Leader: Djihad in Islamic Law' 41

Introduction 41

The Meaning and Scope of Djihad 43

The Aim of Djihad Generally - Universalising Islam 46

Universalising Islam through the Greater Djihad 47

Universalising Islam through Armed Djihad 54

Practical Aims of armed djihad 55

Deterrence 55

Subduing the Enemy 57

Leadership and Checks on the Exercise of Muslim Power 58

The Composition of a Muslim Army 61

Muslims exempt from armed djihad 65

Individual Exceptions 65

Exempt Muslim Groups 65

When Migration is Possible 67

Methodology — Conduct of Hostilities 70

lus ad bellum: Shari'a Laws Governing the 'Right' to Engage in Armed Conflict 72

Leadership and Vicegerency 72

Contemporary Muslim Leadership 74

Contemporary Islamist Leadership 77

Power to Declare an Armed djihad and initiate hostilities 79

Legality of Actions 80

Obedience to Leaders under the Shari'a 81

Legal basis for hostilities 83

(a) Reasons for which hostilities may be initiated 84

Pre-conditions for armed djihad 86

Armed djihad and the individual 88

Determining the individual 'necessity' to fight 89

Legitimacy of Intervention by Muslims Against Oppression 92

Conclusion 94

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Chapter 3 97

lus in bello Law Regulating the Conduct o f Hostilities 97

Introduction 97

Part 1: Conditions for Ceasing an Armed Djihad. 98

Part 2: War Crimes: Comparing IHL and the Shari'a — Methodology for Analysis 99

Creating a shari'a war crime 103

Making Intent a requisite fault element for 'war crimes' 104

Part 3: Identifying Legitimate/ Illegitimate of Targeting People in Armed Djihad 106 Section 1: Who May not legitimately be killed in armed djihad ('protected

persons') 106

Who Can legitimately be killed in armed djihad? 109

1 'Those who fight Muslims' 111

2 Ribat (Border Protection) 119

3 'Those who violate their peace treaties' 12C

4 'Those who expel people from their homes' 120

5 'Those who oppress' 122

6 'Those who suppress faith' 126

7 Hypocrites 144

8 'Leaders of Unbelief' 145

9 The'Friends of Satan' 147

Summary of Groups that may be Fought under the Shari'a 149

Part 4: 'Mixed' M ilitary — Civilian Areas: Classical & Traditional Positions on

Collateral Damage 153

Introduction 153

The Classical SHL Position 153

The Traditional SHL Position 154

Contemporary Traditional SHL Position and Meccan Rebels 160

IHL Position 162

Development of the Shari'a 164

Re-defining Legitimate Contemporary shari'a Targets 170

Collateral Injury in our Times 172

Conclusion 178

Chapter 4 183

Means That May & May Not be Employed in Conducting an Armed Djihad 183

Introduction 183

Grounds for derogation from shari'a limits on 'means' 187

Necessity 187

Introduction 187

Application of the Principle of Necessity ad bellum 189

Subjective determination of Necessity in bello: decisions made on the means

employed during armed djihad 191

Proportionality 194

Determining the Lawfulness of Weapons 197

Reciprocity 202

Conclusion — Necessity, Proportionality and Reciprocity 209

Operative Shari'a Criterion: Prohibition against Causing pain to Sentient Beings 210

1. Torture 211

Torture and the Detention of 'Unlawful combatants' 213

2. The use of Fire as a Weapon 218

3. The Use of Human 'Weapons Delivery Systems' in Kamikaze attacks. 221

'Effectiveness' of kamikaze Attacks on the Military 224

'Effectiveness' of kamikaze Attacks on Civilians and Mixed Targets 224

The Road to Martyrdom 228

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Oppression 230

Kamikaze, Self-Martyrdom or Suicide Bombings 232

Type 1 kamikaze 236

Financial impact of 9/11 Attacks: Proportionality and Reciprocity 241

Type 2 kamikaze (t2k) 243

Culpability of'Handlers' 249

Application of Article 8 of the Rome Statute 250

Conclusion: Martyrdom and self-annihilation in armed conflict 252

General Conclusion on armed djihad 257

Chapter 5 267

Establishing the Tyranny o f a Pious Prince: Armed Conflict other than Djihad 267

Types of Armed Conflict Recognised in the Shari'a 267

1 War 268

2 Aggression 269

3 Anarchy 278

4 Banditry or Armed or Highway Robbery 281

5 Rebellion (bagha or baghi) 285

5.3(a) Development of a corpus of Law on Rebellion 303

5.3(b) Some Relevant International Law on the Use of Armed Force by Non-

State Actors 310

5.4 Elements of the Law of Rebellion 314

5.4.1 The contending parties must be Believers (or at least Muslim) 314

5.4.2 There must be a conflict between these parties. 316

5.4.3 There must be transgression 317

Conclusion on Rebellion 326

Chapter Conclusion 328

Chapter 6 331

The need fo r a 'new' paradigm 331

Introduction 331

Methodology for the Development of the law in a Contemporary Context 334 Stage 1 - 'Opening up' Contemporary IHL & ICL 'Instruments' for signature,

accession and comment by Muslims 337

'Reservations' 339

A Justification for an International shari'a-based system for developing law 341 Disillusionment with Secular justice: Why Muslims are moving towards the

shari'a 342

Promoting the Formation of Muslim Consensus on SHL 347

The Problem of 'Reservations' 348

Conclusion 351

Stage 2: Create an Islamic International Legal Commission (IILC) 353

Introduction 353

The Case for Creating an IILC 356

Legal Basis For Creating an IILC 362

The Scope of the IILC 364

Organisation of the IILC 365

An International Framework for the Development of Islamic Law 365

Obstacles to the Creation of an IILC 368

Conclusion 368

Stage 3: Formulate a Weapons Charter Modelled on The Conventional Weapons

Conventions 371

Introduction 371

The Need and Case for a 'Weapons Charter' 372

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Some Problems of a Weapons Charter and Reasons Against 378

The Case for Codification of SHL 380

Form of a Weapons Charter 383

Content of the SHL Instruments 385

Some Benefits of a Weapons Charter: Signature and Accession 386

Conclusion 387

C h ap ter 7 391

Justice without Reservations: The Need for a Shari'a Tribunal 391

Stage 4: Establishing an International shari'a Tribunal (Tribunal) 391

Introduction 391

Need for a Tribunal 393

The Emergence of a Relatively Homogeneous Contemporary Muslim Identity 399 Perceived Injustices of Muslim States' Judicial Systems 402

Rule of Law 405

A Tribunal's Role Developing the Law 407

Avoidance of shari'a Issues by Western Judges 408

Legal Basis for and Creating a Tribunal 409

Shari'a Legitimacy of a Tribunal 412

Naming the Tribunal 413

Implications for International Peace and Security 413 Corruption in the Muslim World as an Impediment to the Creation of a Tribunal 414

States'Opposition to a Tribunal 419

Pressing Hard for Muslim Accountability 424

Using Internal Islamic Values Help to Prevent, Limit or Curb Islamist Violence 425

Promoting Strategic Litigation 428

Intelligence Value of Suspects 428

Misconceptions on Both Sides: An Impediment to Peace 430

A Possible Form of the Tribunal. 432

Jurisdiction and Standing 432

Legal Personality and Universal Jurisdiction 433

Standing 435

Tribunal's Jurisdiction 438

Circumscribing the Tribunal's Jurisdiction 439

Territorial Limits to Jurisdiction 440

Double Criminality 441

Legal Representation 442

Selection and Appointment of Judges 442

Judicial Independence 445

Nomination of Judges 445

Islamic Schools of Thought (Schools) 446

Shari'a Penalties 449

Compensation 449

Defendant's Rights 449

Victims' Rights 450

The Tribunal's Statute 451

Evidence 452

Subjective and Objective Evidence under Islamic Law 455

Privileging Oral Evidence 457

Some Strategic Implications of Establishing and IILC and a Separate Tribunal 460

Legal Impediments to Prosecution 460

Political Impediments to Prosecution 463

The Struggle for Legitimacy 468

Paradigm Shift 469

Conclusion: The Waterfall and the Snowflake 471

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Chapter 8: 481

Conclusion: Carrying The Spring Ice or The Delicate Quest fo r Peace 481

Introduction 481

Appendix 1 499

Trust God but Tie Your Camel*: Concepts & Methodology in Islamic Law 499

Introduction 499

What is Islam? Who is a Muslim? 499

Classification of People under the Muslim Covenant 499

Qur'anic Classifications of Humanity (and Djinn) 508

Secular Muslims 510

Muslims and 'Heresy' 510

Disbelievers 514

Hypocrites 514

Wahhabis and Neo-Salafis 515

Free Practise of Religion 523

Dar al-lslam (The Domain of Peace or Islam) 523

Dar al-harb (The Domain of War) 525

Daral-Sulh (Domains with which Muslims have a Peace Treaty) 526

Conclusion on umma as 'place' 526

What is the Shari'a? 527

The Centrality of the Shari'a 535

F re e w ill 537

The 'Rule of Law' under Shari'a 540

Making a Case for the use of the Shari'a in the International Plane 544

The Shari'a in a Contemporary Context 545

Developing the Shari'a 548

Sources of Islamic law 548

Immutable Laws (usul) and Evolving Laws (furu') 549

Abrogation in Islamic Law (naskh t-yQ) 551

Shari'a Interpretation 554

Law Making In Islam 559

Islamic Law and its Application between Muslims and Non-Muslims (siyar) 564

Siyar Treaties 564

Consultation (shura). 567

Common Law and the Shari'a 568

Cultural Relativity and Pluralism 571

Classes of Crime (jinayyah 4_> l_l_> ) 576

Hudud Crimes 578

The Death Penalty 581

Apostasy 584

Quisas crimes 586

Siyasa and Ta'zir Crimes 591

Ta'zir crimes 592

Joint Criminal enterprise and Other Inchoate Ta'zir Crimes 592

The Shari'a and Wartime Exceptions 593

Rape as distinct from fornication (zina) 596

Elements of Crime 599

Motive 599

Intention 603

Actus Reus 605

Conclusion 606

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Appendix 2 613

Divining the Devine: Sources o f Islamic Law 613

Introduction 613

Background to the Shari'o 613

Part I: The Scope of Islamic Law 615

Exclusion of the Criminal Law and Laws of War from the Scope of the Shari'a 617

Excluding the Criminal Law from the Shari'a 618

Excluding the Laws of War from the Scope of the Shari'a 619

Reforms for the Present 620

Part II: Sources of Islamic Law 622

The Independent Sources 622

The Qur'an 623

Interpretation of the Qur'an 626

Pre-requisites for Interpretation of the Qur'an 629

Centrality of the Qur'an to Islamic Law 632

(a) To explain the reason for Creation 632

(b) To guide to the 'right path' 633

(c) To Regulate Society According to Qur'anic Criteria 634

The Sunna 636

The Dependent sources 640

Idjma' (Consensus) 641

Quiyas (Analogy) 646

Minor Sources 649

Darura (Necessity) 649

Necessity under International Law as compared with shari'a necessity (darura). 656

Public Interest or maslahah al-mursalah (‘maslahah') 657

Reform of Islamic Law through maslahah 659

Sadd al-Dhari'ah: The Blocking of a means of harm or Pre-emptive Prevention 662

'L/rf (Custom) 663

An Overview of the Sources 665

Idjtihad (Renewal) and Taqlid (imitation) 666

The Doctrine of Taqlid (Imitation) 668

A Short Critique of Taqlid 670

The Doctrine of Idjtihad (Renewal) 674

Some Problems with Contemporary Islamic Law and Jurisprudence 676

Appendix 3 681

Genocide: ICL v the Shari'a, a comparison 681

Case Study on Genocide 684

Genocide 685

Development of the Crime of Genocide 686

Muslim Objections 687

Policy Objections to Creating the Crime of Genocide - General Considerations 687

Some shari'a Objections to Creating the Crime of Genocide 689

(i) Examining Acts Criminalised by the Shari'a 690

Is genocide a hadd crime? 690

Is genocide a quisas crime? 690

Identifying a legal basis for creating a crime of genocide as a ta'zir crime 692

Spreading Corruption on Earth (fasad f il ard ) 693

Identifying acts that can be Criminalised under the shari'a 696

Acts that Cannot be Criminalised under the Shari'a 697

Jurisdiction and the 'sufficient gravity' requirement 698

Physical Elements of Genocide 700

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Sub-paragraph (a) Killing members of a group 708 Sub-paragraph (b) Causing serious bodily or mental harm to members of the

group; 711

(i) Serious bodily harm 711

(ii) Serious mental harm 711

Sub-paragraph (c) Deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in whole or in part 714 Sub-paragraph (d): Imposing measures intended to prevent births within the

group 716

Sub-paragraph (e) Forcibly transferring children of the group to another group. 718 Critique of the Analysis of the Physical Elements of Genocide 720

Mental Element 723

The Planning Aspects of a Genocide 724

JCE & Recklessness 726

Dolus Specialis (Special Intent) 727

The Practical Difficulties of Establishing dolus specialis: Case Law on Genocide 728 Excuses, Defences and Immunity to Prosecution under Islamic Law 731 Defences and Excuses: A brief comparison between the shari'a and ICL 731

Immunities 733

Conclusion on Genocide 733

Glossary 741

Arabic Terms 741

BIBLIOGRAPHY 747

Articles 747

Books and Book Chapters 750

Other sources 759

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TABLE OF CASES

Cases

Abul Fata Mahomed Ishak v Russomoy Dhur Chowdhry, (1894) 571

Aga Mahomed v Kolsom Bee Bee (1897) 409, 550

Al-Kateb v Godwin (2004) 405

Anglo-Norwegian Fisheries Case (1951) 349, 685

Aquaculture Corporation v New Zealand Green Mussel Co Ltd [ 1990] 439

Armed Activities on the Territory o f the Congo (Democratic Republic o f the

Congo v Uganda) (2005) ICJ Rep 168 112

Bailey v Namol Pty Ltd (1994) 439

Barcelona Traction, Light and Power Co Case (Belgium v Spain) (1970)572

Beckwith v The Queen (1976) 409, 442, 633

Birch v Allen (1942) 65 CLR 621 139

Brown v Board o f Education o f Topeka 485

Chan v Minister fo r Immigration and Ethnic Affairs (1989) 456, 457

Chow Hung Ching v The King (1948) 43 5

Clark v Harleysville Mut. Casualty Co., (1941) 410

Cunlijfe v The Commonwealth (1994) 182 CLR 272 194

Definition o f Aggression, United Nations General Assembly (1974) 269, 274

DH and Others v the Czech Republic [2007] ECHR 485

Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner, v

Christopher Simmons. (2005) 543 US 551, 125 SCt 1 183 31

Egan v Willis (1998) 535

Eliezer Niyitegeka v The Prosecutor (2004) 701, 707

Gacumbitsi Case 711

Hamdan and Others v Rumsfeld, Secretaiy o f Defense, et al. (2006) 308, 418, 444

Harris v Digital Pulse Pty Ltd (2003) 439

He Kaw Teh v The Queen (1985) 304

Hyam v DPP (1975) 707

Hyam v DPP [ 1975] 602

Jaensch v Coffey (1984) 286

J el is id Case 687

Kamuhanda Case 711

Kavanagh v Akhtar (1998) 577

Kokkinakis v Greece (1993) 20 [1993] ECHR 52

Kurshid Bibi v Muhammad Amin (1967) 624

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) ([1971] 362 Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory 111,112

Legality o f the Threat or Use o f Nuclear Weapons (Advisoiy Opinion)

(1996) ICJ Reports 56, 194, 196, 197, 198, 203

Leyla Sahin v Turkey (2004) 564

Leyla Sahin v Turkey (2004) ECHR. 52, 69, 128

Lipohar v The Queen (1999) 195, 533

Lodhi v The Queen (2006) 498

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Mabo v State o f Queensland (No 2) (1992) 164

Masciantionio v The Queen (1995) 458

M ilitaiy and Paramilitary Activities in and against Nicaragua (Nicaragua v

USA), Merits, (Judgment o f 27 June) (1986) 111, 1 15, 218, 270, 309, 330, 349,370,380, 465

Mount Isa Mines Ltd v Pusey (1970) 329, 715

Nuclear Test Cases (Australia v France and New Zealand v France) Merits

(1974) 352

Nuclear Tests (Australia v France Merits) (1974) 531, 566

Nulyarimma v Thompson [1999] 733

Plomp v The Queen (1963) 605

Prosecutor v Drazen Erdemovic (1997) 93, 658, 708

Prosecutor v Milomir Stakic (2003) 714

Prosecutor v Radislav Kristie (2001) 712

QAAH OF 2004 v Minister fo r Immigration and Multicultural and

Indigenous Affairs [2004] 340, 518

R v Conway (1989) QB 290 91

R v Crabbe (1985) 304,606

R v Finta (1994) 729

R v O'Connor (1980) 304

R(Daly) v Secretary o f State fo r the Home Department [2001 ] 425

Refah Partisi (The Welfare Party) and Others v Turkey (2003) 565

Ryan v The Queen (1967) 304

Secretary o f State fo r the Home Department v Rehman (2002) 620

Sherbert v Verner (1963) 531

Situation in the Democratic Republic o f Congo (Prosecutor v Thomas

Lubanga Dyilo) (2009) 488

Stingel v The Queen (1990) 90

Telstra Corporation v Treloar (2000) 675

The Prosecutor o f the Tribunal Against Goran Jelisic (1999) 728, 730

The Prosecutor v Dusko Sikirica (2001) 731

The Prosecutor v Zejnil Delalic (1998) 729

The Prosecutor v Alfred Musema (2000) 713, 728

The Prosecutor v Alfred Musema (2001) 728

The Prosecutor v Clement Kayishema (1999) 717

The Prosecutor v Dusko Tadic (1999) 97, 546, 728

The Prosecutor v Goran Jelisic (1999) 711, 728

The Prosecutor v Jean-Paul Akavesu (1998) 689, 692, 709, 710, 716, 717, 719, 728, 729, 730

The Queen on the Application o f Binyam Mohamed v Secretaiy o f State fo r Foreign and Commonwealth Affairs [2008] EWHC 145

The Treaty of Hudaibiyyah (628) 567

Thorpe v Kennett (1999) 733

Tijah v Mat Ali (1890) 563

Trevorrow v State o f South Australia (No 5) [2007] 721

United States Diplomatic and Consular Sta ff in Tehran (US v Iran) (1980)

ICJ 3 37

Walker v The State o f New South Wales (1994) 82 CLR 45 2

Wilson v The Queen (1992) 174 CLR 313 90

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Zecevic v DPP (1987) 162 CLR 645 185

Statutes

Foreign Enlistment Act (1870) 140

Militaiy Order o f November 13, 2001 (Military Order No. 1): "Detention, Treatment and Trial o f Certain Non-Citizens in the War Against

Terrorism 8

Other Authorities

48 Protocol I Additional to the Geneva Conventions (1949) 163 Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (1984) 212

Convention on Cluster Munitions (2008) 383

Convention On The Prohibition Of The Use, Stockpiling, Production And Transfer Of Anti-Personnel Mines And On Their Destruction (1997) 383

Convention on the Rights o f the Child 6, 31

Convention relating to the Status o f Refugees 68

Declaration Prohibiting the Use o f Expanding Bullets (dum-dums - Hague

Declaration III) (1899) 198

Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949) 418 Geneva Convention (III) Relative to the Treatment o f Prisoners of War

(1949) 217,218,417

Geneva Convention (IV) relative to the Protection of Civilian Persons in

Time of War (1949) 310,418

Geneva Convention (IV) relative to the Protection o f Civilian Persons in

Time o f War. (1949) 166, 418

Genocide Convention (1951) 683, 684, 688, 689, 690, 693, 694, 702, 703, 704, 706, 708, 709, 722, 723, 725, 729, 731

International Convention on the Suppression and Punishment of the Crime

of Apartheid (1974) 310

International Convention with respect to the Laws and Customs o f War on

Land [Hague II] 9, 103

International Convention with respect to the Laws and Customs o f War on

Land [Hague II], (4 899) vii

International Covenant on Civil and Political Rights 3, 39

OECD Convention on Combating Bribery o f Foreign Public Officials in

International Business Transactions (1999) 518

Protocol I Additional to the Geneva Conventions o f 12 August 1949, and relating to the Protection o f Victims o f International Armed Conficts

(4977) ' 372,3 8 4 ,3 8 6 ,3 8 7 ,4 0 2

Protocol I Additional to the Geneva Conventions o f 12 August 1949, and relating to the Protection o f Victims o f International Armed Conflicts, 20 Protocol II Additional to the Geneva Conventions o f 12 August 1949, and

relating to the Protection of Victims of Non-International Armed

Conflicts (1977) 285,311,322

Protocol on Blinding Laser Weapons (Protocol IV), (1995) 256

Protocol on Non-Detectable Fragments (Protocol I), (1980) 256

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Protocol on Prohibitions or Restrictions on the Use o f Incendiaiy Weapons

(Protocol III) (1980) 256

Protocol on Prohibitions or Restrictions on the Use o f Mines, Booby-Traps

and Other Devices (Protocol II), (1996) 256

Rome Statute 3, 4, 6, 12, 22, 26, 27, 38, 83, 84, 94, 98, 99, 100, 100, 101, 102, 103, 104, 105, 117, 150, 187, 195,210,211,246, 250, 251,252, 256, 272, 274, 276, 326, 334, 343, 355, 397, 412, 420, 437, 438, 439, 440, 479, 617, 650, 672, 689, 692, 693, 694, 700, 702, 703, 706, 707, 708, 724, 729, 732, 733, 734, 735, 738

Rome Statute o f the International Criminal Court 3, 26, 27, 276

Statute o f The International Court o f Justice 11, 343, 363, 382, 433, 452

The Convention on Prohibitions or Restrictions on the Use o f Certain Conventional Weapons Which May Be Deemed to Be Excessively

Injurious or to Have Indiscriminate Effects (1980) 197

Treaty of Hudaibiyyah (622) 567

Universal Declaration o f Human Rights 39, 48

Vienna Convention (1969) 683, 684, 685

Vienna Convention on the Law o f Treaties (1969) 350, 412, 433, 434, 566, 568, 571

(19)

1

C

hapter

1

IS ISLAMIST VIOLENCE PERMISSIBLE UNDER

THE

SH ARI'A

?

"Freedom's just another word for nothing left to lose"1

There are times when even stones cry — Bosnian Proverb2

INTRODUCTION

This thesis explores the idea of whether it is feasible, peacefully if possible,

to reduce the present wanton use of force. The UN framework already

satisfactorily regulates the use of force by States, including Muslim States.3

The regulation of activities by so-called non-State actors,4 however, is more

patchy in law, particularly with respect to the use of force. This class of

international actor forms the starting point for the issues examined in this

thesis. The subjects of this thesis are a sub-set of the class of non-State

actors and for convenience will be referred to as Islamists, clearly a

contested term, but one that will be clarified in the body of this work. This

thesis is current to about December 2010.5

The analysis will show that improving the regulation of non-State

Islamists is a desirable practical outcome. The proposed solutions revolve

around the central thesis that if the justification or pretext for the recourse

Kris Kristofferson "Me and Bobby McGee"

Tanja Mikulic (a former refugee from Bosnia and Herzegovina) 'Women and Girls in War: The Case of Bosnia and Herzegovina' (Speech delivered at tine Australian Red Cross Forum on Women and War, Canberra, 22 November 2007.

Disputes between States are largely regulated by international law, broadly speaking, governed the Charter of the United Nations (UN), and the organs of the UN, areas that are covered as comprehensively as practically possible under the current international regime.

The use of the term 'non-State actors' in international law is arguably broad and far reaching. In theory it can encompass the activities of entities that are not States and include multi national corporations, terrorist groups, international non governmental organisations among others, hi the context of the use of force however, the use of the terminology 'non-State actors', as opposed to liberation fighters or guerrillas etc, in the 'terrorism context', to describe groups such as al-Qa'eda has been approved by leading publicists and is adopted as a convenient shorthand in this thesis: See for example Cherif Bassiouni (ed) International Terrorism: Multilateral Conventions (1937 -2001).

International and Comparative Criminal Law Series (2001), xxvii.

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Chaper 1 —2

to the use of force is the underlying injustice faced by a people, then, and

subject to the availability of a suitable judicial forum and a recognised law,

law could reasonably be used either to address the injustice in a non-

coercive manner or else expose those who would use or exploit the

misfortune of others to drive their own violent agendas. On the other hand

this thesis contests the validity of the notion of a 'single' law for all and

notes the jealous, pragmatic guarding of jurisdiction even by 'activist'6

justices such as Sir Anthony Mason, former chief justice of Australia.7 It is

also submitted that plurality in a civilised world m ust encompass not only

tire laws of 'tire strong', but also the laws of the numerically, economically

or otherwise considered weak, subject only that such law is just, good, fair

and equitable, a concept further explored in chapter 7.

This analysis takes it as axiomatic that the concept of the rule of law,

or at least the desire by people for a rule of law regime, is universal,8 and

largely is independent of how this regime is constructed as a polity. While

on the one hand this assertion might prima facie appear unsupportable

given some Islamists' preference for violence, armed activity by Islamists

appear to be aiming in cases to establish, the shari'a which from their

perspective is a complete system of law. The subjects of this thesis, Islamist

non-State actors, are those inter alia who purport or aspire to 'live by Islam'

and under 'the laws of Islam'. Tire shari'a is arguably the law of the people,

Justice J D Heydon, 'Judicial Activism and the death of the rule of law' (2003) 23

Australian Bar Review, 122.

Walker v The State of New South Wales (1994) 82 CLR 45.

Jennifer A Widner, Building the Rule of Law: Francis Nyaali and the road to judicial independence in Africa (2001), 9. examines the centrality of establishing a rule of law regime in the African context, and can with appropriate adjustments also generally be analogously applied to non-African Muslim States. According to Joseph Raz, The Authority of Law: Essays on Law and Morality (2nd ed, 2009), 212:

[...] in political and legal [tire theory rule] has come to be read in a narrower sense, that the government should be ruled by the law and subject to it. The ideal of the rule of law in this sense is often expressed by the phrase 'government by law and not by men'.

It is conceded that the notion of the rule of law is not universally accepted as an unmitigated 'good' The Nazi's oppressed people with positive law. It is

acknowledged that the notion of the rule of law is complex and can have contrasting meanings : Lord Thomas Bingham, 'The Rule of Law' (2007) 66 Cambridge Law journal

(21)

C haper 1 —3

viewed by some as a birthright of a Muslim and is analogous to the notion

of the common law as the birthright of an Englishman

.9

As a general proposition, law is likely to have the greatest impact

and give the best results for both negotiation and prosecution when that

law is significant to the parties. This system for Muslims is broadly known

as the

shari'a

even though it is not always clear exactly what different

people mean by the term and, which therefore needs clarification

.10

A

crucial proviso however, is that for outcomes under this law to be accepted

as valid and fair by the international community, both the law and its

application must meet objective minimum standards that are acceptable to

a significant segment of the international community, and which must

include a reasonable number of people within the UN or international legal

community.

The 'serious crimes' examined in this thesis with a view to

prosecution are those broadly falling within the meaning of the Rome

Statute of the International Criminal Court ('ICC', hereinafter referred to as

the 'Rome Statute

') . * 11

All defendants generally have a substantive right

under international law to 'a fair and public hearing by a competent,

independent and impartial tribunal

'. 12

This thesis posits that even Islamists,

charged with a serious crime, are entitled to be subjected to the due process

benefits of these binding international norms and humanity is best served

in not diminishing their rights, however despised those people may be as

'the universal enemy

' . 13

A countervailing consideration strongly advocated

in this thesis is that the specific expressions of a 'right to be heard,' and that

9 Commentaries on the Laws of England, (11 ed, 1791), 108.

10 The terms Islamic law, shari'a and shari'a law, which are substantially equivalent for the purposes of this thesis, will be used interchangeably. The meaning and scope of the shari'a are explored more fully in Appendix 1. In brief, in its traditional and historical form the shari'a is derived from the Qur'an and the sunna, and therefore, is significant to observant Muslims.

11 Art. 6, Art. 7 and Art. 8 Rome Statute of the International Criminal Court, Came into force on 1 July 2002 (with the ratification of 60 States), U.N. Doc. A/CONF. 183/9, (as corrected by the proces-verbaux of 10 November 1998 and 12 July 1999), 2187 UNTS 3. U.N. Doc. A/CONF.183/9. as corrected by the proces-verbaux of 10 November 1998 and 12 July 1999. (hereinafter tire Rome Statute). This thesis will not examine all three crimes in detail but will concentrate on genocide in some detail (see Appendix 3) and war crimes in less detail.

12 Article 14(1) International Covenant on Civil and Political Rights, entered into force Mar. 23,1976., (hereinafter the ICCPR).

(22)

Chaper 1 —4

of a fair trial under international law, are predicated on the premise that for

a meaningful expression of these rights,14 one m ust be subject to a system

that is of significance to the person asserting the right, which in the case of

Islamists is the shari'a.

To engage the accused in the trial process, both genuinely and

actively, (as suggested and explained in the body of the thesis), will prima

facie provide both the defendant and victims substantive justice and not

merely procedural justice, mere revenge or a Pyrrhic victory. Further, as a

shari'a option, the victim may (or may not) seek to exercise personal

discretion, within the limits of the law, to assist a tribunal in formulating a

penalty for the guilty. Such engagement by both defendant and victim may

help to modify behaviour and thus reduce the further desire or 'need' to

resort to violence to settle legitimate and sometimes even existential

concerns. Equally importantly, a fair trial will also help to distinguish the

criminal who masquerades as a martyr.

In the past, those who have committed such serious crimes have

been dealt with in different ways. Various jurisdictions have opted for a

range of remedies, from Truth and Reconciliation Commissions, to

prosecution and of course tragically in other instances even mob rule,

gratuitous violence and crude revenge. For example, in the aftermath of the

violence in Rwanda and the former Yugoslavia, the Security Council

provided for specific tribunals. Further, the Rome Statute also now

provides for the prosecution of individuals both within domestic courts

and on the international plane.15

In considering the prosecution in domestic jurisdictions of Muslim-

majority States (hereinafter referred to simply as Muslim States) which are

largely secular,16 one m ust take cognisance of some discrepancies and gaps

which can cause substantial problems between the concept and execution

or 'delivery' of justice. This is especially im portant w ith respect to the

14 Article 11(1) of the Universal Declaration of Human Rights 'states (emphasis added): Everyone charged with a penal offence has the right to be presumed

innocent until proved guilty7 according to law in a public trial at which he has had all the guarantees necessary for his defence [sic],

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C haper 1 —5

Muslim State or States with which an Islamist, has a nexus. The term

'Islamist7 is used in its general contemporary context.17 However, even in a

legal system which has normative significance to the accused, failure to

provide an accused person the right to a fair trial brings with it the danger

of injustice. The absence of a legal or practical recourse to justice for the

defendant and access to fair redress or available remedies for the victims in

the view of this thesis, is also unjust.18 While the opinions such as those of

Meron open up the discussion on law, they nonetheless represent a largely

W estern view, and to some degree includes an international view. Still it is

argued here, even publicists such as Meron do not quite encompass the

Muslim, Hindu, Confucian or other great civilisations in a comprehensive

sort of way. This thesis posits that a recognition by a defendant of the legal

tradition under which one is being tried must be considered one of the

guarantees necessary for one to be able to effectively and best defend

oneself.

It is a truism that the trend in the 21st Century is towards

'dem ocratisation7.19 A crucial question with respect to Muslims and

Islamists here is: w hat is the legal system of normative significance? The

wish of the Muslim majority, as expressed where available in relatively free

and fair elections, for the shari'a has arguably been demonstrated in States

such as Algeria, Iraq, Turkey, Jordan, Indonesia, Pakistan, Bangladesh,

Mauritania, Malaysia, the Occupied Palestinian Territories to mention a

few. Some Muslim countries either do not allow 'Islamist7 parties to take

part in their electoral process or do not conduct periodic elections of any

form. However, notwithstanding the woeful state of legal and political

developm ent in some of these jurisdictions, this is the legal system that

would most likely apply, in preference to the status quo (generally the legal

system of the once ruling Colonial power), if effect was given to the

majority's views. This in no way minimises the attendant problems with

16 Sami Zubaida, Law and Power in the Islamic World (2003), 101; Zachary Abuza, Militant Islam in Southeast Asia: Crucible of Terror (2003), 1.

(24)

Chaper 1 —6

the substantive content and perception of the

shari'a

which are both

addressed in context.

In addressing this issue, President Khatami of Iran noted the

'backwardness' in Muslim States, including their 'legal backwardness

' . 20

For example a child (including a Muslim child,) who has acquired a

substantive right to be heard in judicial proceedings

21

can lose this and

perhaps even other substantive rights simply as a result of the crude

application of the

shari'a

in some Muslim States

.22

Such an untenable

situation demonstrates the problem of prosecution of serious international

crimes in domestic jurisdictions, particularly because many of these States

appear to lack adherence to even the minimum international standards that

the prosecution of such serious crimes would warrant. While Khatami

confined his statement to the standards of justice in Muslim States, similar

concerns also apply to other less-developed countries (LDCs), and in some

cases even developed countries. For example, John Taylor of Liberia (an

LDC) and Slobodan Milosevic of Serbia (not an LDC) were arguably not

tried in their own domestic jurisdictions because their domestic legal

systems were somehow seen as unsuitable or deficient.

Therefore, fairness and justice require that notwithstanding the

'complementarity' provisions of the Rome Statute

,23

and for reasons

alluded to above, trials for the most serious breaches of international

criminal law (ICL) by Islamists should take place on the international

plane, in free, fair and transparent trials and under a legal system

recognised and accepted as binding by Muslims.

19 Charlotte Ku and Harold K Jacobson, 'Introduction: Broaching the Issues' in C Ku and H K Jacobson (eds), Democratic Accountability and the Use of Force in International Law,

(2003) 1,8.

20 Mohammad Khatami, Islam, Dialogue and Civil Society (2000), 14.

21 Article 12(2) Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, in accordance with article 49, (hereinafter CROC). If this is not a 'right' erga omnes, then it is at least a right for nationals of States party. 22 Nisrine Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations: A

Comparative Study (2008), 88. points out some absurdities that can result from shari'a

based reservations where girls acquire rights under CROC which they lose when they become adults.

(25)

Chaper 1 —7 The Central Question

This thesis limits its scope to the examination of the use of force, under a

particular interpretation of the shari'a, by non-State actors, as an area that

needs addressing. The narrower, more specific question examined is the

shari'a's suitability for dealing with legality, of the contemporary use, or

threatened use,24 of force by non-State Islamist groups. Such groups often

work together formally or informally, sometimes to achieve strategic ends,

for reasons variously termed 'fighting for Islam'25 or being engaged in

djihad or 'holy w ar' (one of djihad's less accurate contemporary definitions).

Consequently, how the shari'a can be used to regulate this behaviour,

particularly with respect to minimising recourse to the use of force, is

examined by (1) identifying the lawful pre-conditions for the use of such

force and (2) identifying the legitimate means that may be employed

during armed conflict.

An underlying subtext is the perception that Islam and its legal and

theological traditions somehow predispose Muslims to wanton violence,26

and that introducing the shari'a into the equation cannot ipso facto be

helpful. This perception is examined in some detail in Appendix 1, and

concludes that this perception cannot reasonably be founded either in law

or fact.27 The general purposes and content of the Appendices is more fully

explained below.28

24 Michael Wood, 'Necessity et Legitime Defense dans la lutte contre le terrorisme: Quelle est la Pertinence de 1'Affaire de la Caroline Aujourd'hui? N'a pas de loi? ' (Paper presented at the Colloque en Grenoble: la necessity en droit international, Grenoble 2007) 286, observes rightly that 'proof of the threatened use of force is difficult to obtain'.

25 List of Proscribed Organisations in Australia, USA, UK, Canada, EU and the UN <http://w w w .ag.gov.au/agd/WWW /rwpattach.nsf/VAP/ (153683DB7E984D23214B D871B2AC75E8)~Attachment+A+-+AG_s.PDF/$file/Attachment+A+-+AG_s.PDF> [5 May 2006].

This list confirms that all 'Muslim' organisations listed are generally associated with

'Sunni' majority societies. For example while Saudi Arabia and other Persian Gulf Arab States have significant Shi’i minorities, these societies would still generally class themselves as Sunni.

26 A Wood, 'Are Muslims Predisposed to Violence?' (1995) Insight (Sydney) 17-19, 204. 27 While generally, it would appear unnecessary to answer this and similar questions,

(26)

Chaper 1 —8

On the other hand, Muslim history shows that its civilisation has

not backed away from the use of force. In practice though, except in its very

early period when Muslim leaders were strongly guided by the shari'a,

Muslim attitudes do not appear to be significantly different from those of

other civilisations in their use of force to achieve their strategic and

material ends. However, Islam is also constrained by its own laws, mores

and moral standards. This thesis posits that these qualities can, potentially

act as a significant restraint to Islamist violence.29 The intent is not

completely to de-legitimise the use of force to effect necessary change - as

the concept of a 'legitimate struggle' is known in international law30 — but

instead to circumscribe the legal means by which this use of force can be

regulated and thus minimised. This could be achieved by engaging and

activating the peaceful means of dispute resolution under the shari'a, an

area that is greatly neglected. That is, to identify the steps that a Muslim

m ust exhaust before resorting to the use of force and then identify legal

norms with respect to the use of force, the breach of which can be

prosecuted under the shari'a.

Al-Qa'eda

Further, this thesis will concentrate on the operations of al-Qa'eda, the

'Islamist group' recognised by tire USA, but is not meant to be a

prescriptive definition as it's membership can in cases be difficult to

ascertain for it's necessarily secretive and nebulous nature,31 (and it's

associated groups when necessary) as a case study.32 Al-Qa'eda is an

29 Edmond Rabbath, Tour une Theorie du Droit Internationale Musulman1 (1950) 6 Reime Egi/ptienne de Droit Internationale 1, 22.

30 Sovata Maiga, 'United Nations African Meeting on the Question of Palestine' (2010) CPR/AFMQP/2010/9.

31 The word al-Qa'eda (» ') means 'the base' and in the early days was a term rarely used by Osama bin Laden (although he later used the term for impact): Bruce

Lawrence (ed) Messages to the World: The Statements of Osama Bin Laden (2005), 108. The term was apparently first used in English by the CIA in 1996: Bruce Lawrence (ed)

Messages to the World: The Statements of Osama Bin Laden (2005), 108 n 3. Al-Qa'eda as used in this thesis refers to the use of the label in several forms, for example al-Qa'eda in the Arab Peninsular, al-Qa'eda in the land of the two rivers (Iraq), Al-Qa'eda in Darfur, in Somalia or in Russia (Chechnya, Dagestan and Ingushetia). The term is used broadly to encapsulate self identification with al-Qa'eda or to include those who subscribe to its ideology and methodology7 and is not meant to be a comprehensive definition. Al-Qa'eda is also recognised as a non-state entity by the US: Sec 2(l)(i) George W. Bush, Military Order ofNoziember 13, 2001 (Military Order No. I) :"Detention,

Treatment and Trial of Certain Non-Citizens in the War Against Terrorism". (2001). 32 According to P J van Krieken (ed) Terrorism and the International Legal Order (2002), 14.,

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C haper 1 —9

appropriate subject as it is well known and also because it has an effect on

the debate that is hugely disproportionate to its constituency, arguably

because it is allowed to inspire great fear even among powerful States. Al-

Qa'eda's own intransigence can be matched equally with the 'liberal' or

neo-conservative extremes in the West. However characterised, each

extreme views the other's position as being incompatible either with

'humanity' or 'God's law'. Both extremes portray the world as

irreconcilably polarised, yet when juxtaposed, aid in locating a more

reasonable 'middle ground'.

Al-Qa'eda inter alia is committed to establishing and upholding,

through force if necessary, the

shari'a -

the scope of which in theory it

defines from a particular

Sunni

perspective. It is on this

shari'a

basis that al-

Qa'eda et al seek to regulate at least their own particular Muslim societies,

if not the entire Muslim community (or

umma).

Equally therefore, the

shari'a

can be considered binding on al-Qa'eda, making it the natural choice

of law to regulate al-Qa'eda's actions, including with respect to their use of

force. It is conceded that the 'facts' surrounding al-Qa'eda, including that

the identity of its key players are sometimes 'muddled', confused,

unknown or unsettled and that specific conclusions that have been drawn

with respect to their activities may consequently be contested. The global

issues of principle and the broader conclusions drawn from this analysis,

however, are very unlikely to be greatly affected by these uncertainties. Al-

Qa'eda's past and possibly future actions also embody the kind of legal

issue that confront jurists.

Humanitarian Law

In Islam, as in international humanitarian law (IHL), 'the means of

inflicting harm upon the enemy are not unlimited

' 33

and the

shari'a

other hand, van Krieken explores the several specific definitions of terrorist acts as contained in tire many legal instruments he surveys. The position taken in this thesis is that, although there is not a single unifying or agreed upon legal definition, that most people are reasonably able to recognise behaviour, however characterised, as 'terrorist'. Prosecution however for terrorism will depend upon a specific instrument which contains tire legal elements, procedure etc as required.

(28)

C haper 1 —10

prohibits certain means of fighting.34 These limits, can form the basis for

creating shari'a crimes, and for criminalising such behaviour during armed

conflict. There are differences between IHL and the shari'a laws of war or

shari'a humanitarian law (SHL) as referred to in this thesis. SHL is not a

recognised term, is nascent concept in contemporary law and was coined

for this thesis as a form of shorthand. For example, while the concept of

'the liberation movement' or struggle is known and reluctantly tolerated in

contemporary international law,35 it will be shown that Islamic law

emphasises that a state of justice is m andated not only for Muslims and

calls for the elimination of all injustice as a positive obligation,36 through

the use of force if necessary.37 Further, shari'a views on fighting, justice, life

and the reason for hum an existence, among other issues (peripheral to the

main issues examined in this thesis and consequently as discussed in

Appendix 1), are also in many ways fundamentally different from the

moral yardsticks underlying the current secular international legal regime,

signalling potentially significant differences with respect to the regulation

of the legitimate use of armed force. It is shown that these differences

however, are not irreconcilable and some 'm iddle ground' is identified.

In general, under the current international regime, States have a

monopoly on the use of force. The 'cross-border' use of force affecting most

non-P5 countries38 is strictly governed by the UN Charter, customary law

and treaty obligations. States' use of force within their own borders and

particularly against non-State entities appears to be a less restrained. On

the other hand the shari'a permits the use of force only under strict

34

35 36

37 38

Muhammad Al-Mughirah al-Bukhari, The Translations of the Meaning o/Sahih al-Bukhari vol 4 (1976), 158; Abu'l Hussain Muslim, Al jami'us Sahih vol 3 (1972), 946; Rudolph Peters, ]ihad in Classical and Modern Islam (1996), 13 (& 172 n 6). These issues are discussed in some detail in chapters 3 and 4.

J D Harris, Cases and Materials on International Law (5th ed, 1998), 156.

Qur'an 4:135. Quranic verse numbers are indicative only. The actual verses, and particularly the verses with legal content, in most cases are long and address several issues and subjects, i.e. subjects broader than the area indicated to in the footnote. Unless stated otherwise all references to the Qur'an are to, Abdullah Yusuf Ali, The Holy Qur'an: Translation and Commentary (1980). Verse numbers sometimes vary in other translations, for reasons which are not examined here. Yusuf Ali is arguably the most popular contemporary English rendition. It is conceded that every translation is an interpretation and can have an impact on the 'true' meaning and thus affect the interpretation as used in this thesis.

Qur'an 2:190.

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C haper 1 —11

circumstances irrespective of who is using such force. Although the use of

force by the Muslim sovereign (leader, caliph or king, and read here as

'State') is permitted under the shari'a, the same strict rules that govern the

individual, prim a facie appear to apply to the behaviour of 'States' as well.

That is responsibility for collective acts, under the shari'a m ust still be

sheeted back home to an individual.

Further, the differences between international law and Islamic law

on the use of force are much more nuanced and complex than some

contemporary analysis would suggest.39 Without overstating the point, this

mismatch causes some dissonance within Muslim societies who are in the

main, it appears, forced to submit to secular legal traditions even within

Muslim-majority States.

E stablishing a Baseline: W ho is the Gatekeeper?

While there is some reasonable opposition to the use of the shari'a by both

non-Muslims and Muslims who prescribe secularism, it is equally

reasonable for others to want such law, a n d /o r even to oppose the use of

non-shari'a-based. judicial institutions for Muslims. That is, practising

Muslims may, in good faith and conscience, refuse to recognise the

jurisdiction and validity of extra-shari'a secular laws including ICL and

IHL. It appears arrogant and 'm ean spirited' for tire world community to

refuse them the right to be tried by their own 'civilised law' , 40 particularly

39 While not directly to point, the common law and the shari'a have co-existed in may jurisdictions within the British Commonwealth of nations and have arguably managed to co-exist, adapting in offer to do this. Procedurally, some shari'a requirements, particularly in the civil jurisdiction, can be satisfied within the common law framework. For example, succession under the shari'a can be very easily be given effect under the common law notion of freedom of testation. While this level of formal law can easily be accommodated, the reasons for shari'a division of an estate is under laid by a complex process and understandings of kinship and is affected by the Islamic characterisation of the nature of 'property'' its uses and 'ownership' which in cases can be completely different to the common law understandings of these otherwise superficially very' similar concepts. In the area of criminal law, the matter can become even more complex.

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Chaper 1 —12

as discussed in Appendix 1, given the centrality of law to the Islamic

faith.41 As a m atter of Islamic law, a believing Muslim m ust not judge (and

thus arguably and consequently a fortiori m ust not agree to be judged) other

than under the shari'a.42 At any rate, as a m atter of principle, a desire to be

tried under one's own law is not and should not be viewed as an

unreasonable request.43 When there is an option to do so, many secular

States and leaders may rightly refuse to subject their citizens to laws

including secular laws other than 'their ow n'.44 Such sensibilities however,

must be respected universally and not applied arbitrarily to suit the

powerful.

There is also a broader reason for advocating the use of the shari'a. It

is argued that a shari'a perspective can provide some answers which at

present appear to elude the international community. This perspective has

at times manifested this dissonance through violence, sometimes at great

hum an and material cost.45 Thus a practical Islamic legal perspective on the

use of force would help to 'fill-in' some of the gaps created by an analysis

based solely on a secular model. However, while the differences between

the Western and Islamic legal traditions may at first glance appear

substantial, the laws that result are not significantly different, arguably

engagement with Islamic law: Clark B. Lombardi, ’Islamic Law in the Jurisprudence of the International Court of Justice: An Analysis' (2007) 8 Chicago journal of International Law 85, 99. See also generally Ford who questions the assertion that the Statute provides a legal basis for the inclusion of Islamic law in International law: Christopher A Ford, 'Siyar-ization and its Discontents: International Law and Islam's Constitutional Crisis' (1995) 30 Texas International Law journal 499. Finally and in a pragmatic sense, William McCants, Jarret Brachman and Joseph Felter, Militant Ideology Atlas: Executive Report, (2006) 5. The US Government recognises that change must occur from within Muslim communities, that external influence is limited and that:

It is their own thinkers [that] are best positioned to influence their base [...]

41 Norman Anderson, Law Reform in the Muslim World (1976), 1. 4- Qur'an 5:47.

43 See generally: Clark Lombardi on the importance of catering for Muslim sensibilities: Clark B. Lombardi, 'Islamic Law in the Jurisprudence of the International Court of Justice: An Analysis' (2007) 8 Chicago Journal of International Law 85, 98.

44 For example the USA, China and Russia have all yet to ratify the Rome Statute. <http://www.icc-cpi.int/M enus/ASP/states+parties/> [Accessed 17 July 2010] 45 The West has for most part tried to stop Islamist violence through the use of force,

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Chaper 1 —13

because what is considered 'criminal' in both legal traditions is rooted in

the Mosaic Law

.46

Further, this work is concerned with both legality and legitimacy

.47

It is, however, not a critical examination of the s

hari'a

but rather accepts the

shari'a

as a normative system of law adaptable and adapting to

contemporary exigencies. However, the

shari'a

criminal law 'as is', requires

some development for use in contemporary legal processes, the scope of

which is examined. An important aspect of this examination is to ensure

that this development will not create injustice for others and that such

possibilities, if present, are highlighted. For the purposes of this thesis inter

alia this means ensuring that the laws and processes so derived, while

independent, are, to use one yardstick, not inconsistent with the principles

and practices of general international (criminal and humanitarian) law

48

An important

shari'a

consideration is that God forgives

transgressions against 'God's rights' but generally does

not

forgive wrongs

done by one person to another, only the victim or his/her agent being

legally competent to forgive that wrong

49

A temporal mechanism for

providing justice between individuals is therefore of utmost importance in

Islam.

To this end this thesis recommends and attempts thereby to

encourage the international community to institutionalise core (and, it is

argued in most cases, universal)

shari'a

values as augmenting the present

international order. Augmentation however, can sometimes, unfortunately

and simplistically, be viewed by some Muslims as an imposition of

'Western' values. Note however, that as an Abrahamic faith Islam does

indeed subscribe to many of these same values. Further, Muslim States

unilaterally have subscribed to certain minimum customary standards,

46 According to His Honour, The Chief Justice: M Gleeson, 'The Relevance of Religion ' (2001) 75 The Australian Law ]oumal 93, 94:

The influence of religion on various aspects of civil and criminal law is indirect, and largely by way of the influence of religion on morality.

4/ According to Deina Abdelkader, Social justice in Islam (2000), xi. 'justice has become the first and most fundamental objective of the Islamic awakening'.

Figure

Table 1 — Muslim States' party to APII

Table 1

— Muslim States' party to APII p.338

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