Overview by Cleo Meinicke, Research Associate PILPG NL
Highlights:
In light of international crimes committed in several Muslim states, the International Nuremberg Principles Academy published a book that explores international criminal law and justice in an Islamic context.
The event on “Islam and International Criminal Law and Justice”, co-hosted by Germany and the International Nuremberg Principles Academy, was moderated by Klaus Rackwitz, the Director of the International Nuremberg Principles Academy. The speakers of the panel included Dr. Guildo Hildner, the Director of Public International Law at the Germany Federal Foreign Office, Dr. Viviane Dittrich, the Deputy Director of the Academy, Dr. Talynn Gray, the editor of the book discussed in the panel, and Dr. Ivana Hrdličková, president and judge at the Special Tribunal for Lebanon. Furthermore, Catherine Marchi-Uhel, the first Head of the IIIM, Dr. Mohamed El-Zeidy, a Legal Officer in the Pre-Trial Division of the ICC, Adel Maged, a judge from the Court of Cassation in Egypt, and Amady Ba, the Head of International Cooperation at the ICC OTP.
Whereas the Rome Statute theoretically includes values and principles of all legal systems, it is often argued that the geographical representation is not equal. Most reference is made to civil and common law systems, thereby supporting the existing Eurocentric bias and marginalizing other sources of law, such as Islamic law. Considering the current events in different Muslim states, most notably Syria, but also Afghanistan, Nigeria and many other states, a discussion of international criminal law in the Islamic context is relevant.
Dr. Hildner introduced the International Nuremberg Principle Academy that was founded in 2014 by the German Foreign Office, the Free State of Bavaria and the City of Nuremberg. The foundation aims to promote international criminal justice and human rights. He especially highlighted the independence of the Academy’s work.
Following, Dittrich as the main editor of the Nuremberg Academy’s publications, raised awareness for the different projects the Academy is working on. Next to “Islam and Criminal Law and Justice” the Academy published “Two Steps Forward and one Step Back: The Deterrent Effect of International Criminal Tribunals.” The books were both published in the Nuremberg Academy Series, where they are freely accessible. The idea to focus on the relation between Islam and international criminal justice emerged in 2015 during the major annual conference of the Academy and was further established at the round table discussions in 2016, where the topic was unanimously considered to be of great relevance.
Dr. Gray presented the reasoning behind publishing the book and its content: in the light of international crimes being committed in many Muslim states, it is necessary to look at Islam and international criminal justice. A large part of states around the world are Muslim and follow at least to a part Islamic law and most of them are not States Parties to the Rome Statute. The book aims to address two myths according to Dr. Gray. The first concerns the perception that the Rome Statute as imposed by the West and the second is about the classic civilization problem, arguing that Islam is inherently not in line with democracy. However, the book disentangles these myths and, among other arguments, shows that the Rome Statute was created by communication between different cultures. Nevertheless, it also advocates staying sensitive towards the Eurocentric bias. Dr. Gray further introduced the structure of the book, which looks at the sources of Islamic law and Islamic socio-legal norms in comparison with international criminal law. Later on the book analyses more specific conduct and the approach taken by Islamic law, such as with regards to military aggression, jus in bello, and non-international armed conflicts. The book concludes with a chapter on the place for Islamic law within the applicable law of the ICC.
The president of the Special Tribunal for Lebanon, Dr. Hrdličková, highlighted the importance of the definition of Muslim states before analyzing Islamic law. One can simply refer to the MENA (Middle East and North Africa) states, but there are differences among those. There are states with a majority of Muslims, but where Islamic Law is not the primary law applicable. Some states use different legal systems for public and private law and others do not even have Islam as a state religion, such as in Indonesia. Dr. Hrdličková stressed that we need to know the culture, the different habits, customs and the tribal law of the state. In the specific case of Lebanon, with a significant Muslim population, the legal system is based on the French civil law system, but there are specific personal status laws for the Muslim population. Nevertheless, these provisions do not have an impact on criminal law. The Special Tribunal for Lebanon, being a hybrid tribunal, uses the criminal law of Lebanon but the rules and procedure of international law. Here the President of the Tribunal stressed that there needs to be mutual understanding, of the culture and also the legal systems in the state in order to achieve a successful outcome.
Ms. Marchi-Uhel introduced the International, Impartial and Independent Mechanism (IIIM) to Assist in the Investigation and Prosecution of Persons Responsibility for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011. She stressed the overlap especially in IHL between international law and Islamic law, which both prohibit for example the mutilation of dead bodies and the causation of unnecessary suffering. She supported the aim of the book to demystify false understanding of Islamic law, which is often used to promote xenophobia.
Dr. El-Zeidy highlighted the lack of a uniform Muslim world, wherefore one has to be cautious about generalizing it. Because of the fact that many take the name of the prophet and Sharia as justifications for violence, it is even more important to look at Sharia and its content, according to him. He introduced the sources of the ICC and specifically the complementarity principle, which is where one could find some room to apply Islamic law at the ICC. Dr. El-Zeidy referred to the Libyan case where the government wanted to take over the task of charging Said al-Islam Gadaffi but the Court’s Defense was against it based on the argument that Islamic Law does not take all the rights of the suspect into account. However, Dr. El-Zeidy emphasized that this is a misconception of Islamic law and that the ICC lost a good opportunity to support the recognition of the law in this case. He asked why the Court mainly refers back to civil and common law while not referring much to other legal traditions.
The next speaker was Adel Maged, who stressed again that there is no singular Islamic law and one has to return to the classical books of Sharia to gain a complete understanding. Because of this difficulty and the necessity of academic knowledge of Islamic law, Maged doubts that ISIS has a complete understanding ofIslamic law. Maged values that the book central to this event finally bridges the gap between the Muslim and Western world. Nevertheless, he promotes the publishing of a similar book, solely written by Islamic jurists, to have detailed Islamic law assembled in one book. Lastly, Amady By highlighted again the ICC relevance also in Muslim countries, having ongoing investigations in five Muslim countries: Afghanistan, Iraq, Palestine, Myanmar, and Libya.
Not much time was left for questions at the end of the side event but one question was asked concerning the myths addressed in the book. It was inquired whether those myths were based on lack of knowledge or on manipulations. Dr. Gray responded that the myths were a product of collateral manipulations, which do not come from the population but from political leadership.