Corpus Juris of Islamic International Criminal Justice 1527503232, 9781527503236

Table of contents :
Table of Contents
Acknowledgements
Preface
Introduction
Chapter One
1. Comparative Criminal Law
2. Division of Islam
3. Mohammad or Kant
4. Beccaria in Quranology
5. Gradual Modification
6. Socialism within Islam
7. Pella’s Principle of ‘Judicial Conscience’ in Islam
8. Bertrand Russell on Islam
9. Christianity amid Islam
10. The Laws of the Common Father of Man
11. Common Quality of Beliefs
12. Sovereignty of Rights
13. Indispensable Guarantees
Chapter Two
1. The Code of Conduct of Islam
2. Traditional Principles of Criminal Jurisdiction
3. Habeas Corpus
4. Knowledge of Jurisdiction
5. Theory of Actus Reus
6. Beyond any Reasonable Doubt
7. Adaptation of an Islamic Criminal Court
8. Shariah Adquisitorial System
9. Rendering Justice
10. Shariah in an International Criminal Court
11. Philosophers Condemning Wrongful Applications of Islam
12. Violation of Individual Rights
Chapter Three
1. The Boundaries of Sources
1.1.The Quran
1.1.1. Protest Against Inequalities
1.1.2. Automatic Application
1.2. Sunnah
1.3. Consensus
1.4. Juridical Analogy
2. No Compulsion in Ideologies
3. Peaceful Settlement of Disputes
4. A Comparative Examination of Sources
Chapter Four
1. Legal Philosophy
2. The Roots of the System
3. The Inquisitorial Codes
4. Interpretation by Judges
5. Civil Law
6. Islamic Inquisitorial System
7. Defendant in Inquisitorial and Adversarial Proceedings
8. Powers of the Judge
8.1. Active Judge
8.2. The Lay Judges
8.3. The Islamic Assessors
8.4. Positive Role of the Judge
8.5. The Passive Role of Attorneys
8.6. The Length of Trial
Chapter Five
1. Roots of Adversarial Systems
2. Common Law
3. Jury or No Jury
4. Leading Principles
5. Criminal Cases
6. Powers of the Judge
7. Witnesses in Adversarial Systems
7.1. Process of Hearing
7.2. Witnesses
8. Advantages of Common Law
Chapter Six
1. Legal Disciplines
2. Hudud
3. Qisas
4. Tazir
5. Prescribed Crimes
6. Diyah
7. The Core Crimes in an Islamic International Criminal Court
7.1. Acts Constituting War Crimes
7.1.1. War Crimes in Courts
7.1.2. Defensive War
7.1.3. Assisting Victims
7.1.4. Protection of Fundamental Rights
7.1.5. Fulfilment of Serious Obligations
7.1.6. Treatment of Prisoners
7.2. Crimes Against Humanity
7.2.1. Wisdom of Committing Wrongful Conduct
7.2.2. The Existence of the Principle of Intent
7.2.3. A Wrongful Conduct
7.2.4. A Criminal Plan
7.2.5. No Policy of Widespread Attack
7.2.6. Policy of Systematic Attack
7.2.7. A Wilful Blindness
7.2.8. List of Crimes Against Humanity
7.3. Genocide
7.3.1. Srebrenica Genocide Case
7.3.1.1. The Bias View of the ICJ
7.3.1.2. The Poor Nature of Ruling
7.3.1.3. Unrealistic Conditions
7.3.2. Genocide in an Islamic International Criminal Court
7.3.3. Classification
7.3.4. Criminalization in Human Rights
7.4. Aggression
7.4.1. No Aggression against Aggressor
7.4.2. Absolute Necessity
7.4.3. The Concept of Proportionality in Islam
7.4.4. Evaluating Aggression
Chapter Seven
1. Judiciary System
2. Classification of Law
3. Classification of Courts
3.1. Supremacy
3.2. Fatwa Revolutionary Court
4. Integrity in Court
5. The Rejection of the Caste of Priesthood
Chapter Eight
1. The Fundamental Principles of Criminal Justice
2. The Principle of de lege lata
3. The Principle of Nullum Crimen Sine Lege
4. Nulla poena sine lege
5. Ni bis in idem
5.1. Double Jeopardy
6. Subjects of Both Legal Systems
7. Recognition of Crimes within Both Legislations
8. Categories of Crimes
9. Proper Distribution of Justice
Chapter Nine
1. The Dilemma of the Court
2. The ICC in Islamic Codes
3. Substantive Crimes in the Islamic Criminal Code
4. Completing the Islamic Code by the Complementarity Principle
5. Primacy of Jurisdiction
6. Prevention of Impunity
7. Admissibility
8. Hybrid Jurisdiction
Chapter Ten
1. The Principle of Criminal Charges
2. The Principle of Appropriate Locality
3. The Principle of Qualification of Judges
4. The Principle of an Appeal Court
5. The Principle of Qualification of Prosecutors
6. The Principle of Equality of Treatment
Chapter Eleven
1. Presumed Innocence
2. Evidence
3. Nature of Evidence
4. Confession through Consent
5. Charges before Trial
6. The Scope of Charges
7. Substance of Islamic Evidence
Chapter Twelve
1. Comparative Judicial Trial
2. Arguments on Guilty Pleas
3. Corpus of Guilty Pleas
4. Witness Requirements
5. Testimony
6. Testimony of Witnesses
7. Testimony of a Judge
8. Testimony of Women
9. Nature of Evidence
10. Reliability of Evidence
11. Rights of Accused in Customary International Law
Chapter Thirteen
1. Anatomy of Rights
2. Assembly of Rights
2.1. Right to Counsel
2.2. Specific Rights
2.3. Initial Rights
2.4. Right to Certain Facilities
2.5. Rights under Procedures
3. Lawful Indictment
4. Rights of Women
Chapter Fourteen
1. Accusation as a Principle
2. Raison d'être of Accusation
3. Model of Jurisdiction
4. Reforming Accusatorial Models
5. The Power of the Accusatorial Verdict
6. Inquisitorial or Adversarial
7. Presumption of Innocence
8. Different Criminal Procedures
9. Compensation
10. Responsibility of the Public
Chapter Fifteen
1. Absentis A Code
2. Adaptability
3. Inalienable Principles
4. Rules of Confession
5. Forgiveness
6. Qualified Punishment
6.1. Retributive Character
6.2. Preventive Validity
6.3. Protective Validity
6.4. Elimination of Evil
6.5. Rehabilitation
6.6. Restoration
6.7. Reformation of Norms
6.8. Repressive Function
6.9. Apology
6.10. Compensation
6.11. Amnesty
6.12. Reinstitution of Civil Rights
6.13. Methods of Punishment
6.14. Mitigation of Punishment
6.15. Abolition of Severe Pe
7. Excluding Penalties against Women
Chapter Sixteen
1. Evading Criminal Responsibility
2. Islamic Border of Criminal Responsibility
3. Deliberate Abuse of Freedom
4. Violations against Mankind
5. High-Ranking Officials
6. Overlapping Court Principles
7. Similar Elements of Criminal Responsibility
7.1. Age of Criminal Responsibility
7.2. Intent
7.3. Participation
7.4. Mitigation
7.5. Joint Criminal Enterprise
Chapter Seventeen
1. Evaluating the Judgment of Christ
2. Equality Before the Judgement of God
3. Equality Before the Court of Law
4. Classical Concepts of Judgements
4.1. Not Fitting To Be a Judge
4.2. The Case of a Jewish Lady
4.3. Vertical System of Justice
Chapter Eighteen
1. Complementarity in the ICC
1.1. Challenges to the Jurisdiction of an Islamic Criminal Court
1.2. Obligations of Islamic Law to the ICC
2. The ISIS Case
2.1. ISIS and Mens Rea
2.2. Declaration of the Prosecutor of the ICC
2.3. Barbarians
2.4. War Crimes by ISIS
2.5. Islamic Core Principles of Humanitarian Law
2.6. Crimes against Humanity by ISIS
2.7. Genocide or Quasi-Genocide by ISIS
2.7.1. A List of Genocide Crimes Committed by ISIS
2.7.2. Childrencide
2.7.2.1. Legislative Principles of Humanitarian
2.7.2.2. Basic Principles of Islamic Justice
2.7.2.3. Systematic Violations of Safeguards
2.7.2.4. Specific Principles of Justice
3. Al-Bashir Case
Chapter Nineteen
1. Legal Characteristics of Love
2. Distributing Love in Justice
3. Weight of Love in Criminal Justice
4 . The Main Codes on Love
4.1. The Principle of Necessarium for Family Love
4.2. The Principle of Cultivating Love
4.3. The Principle of Granting Love for Amity
4.4. The principle of Inappropriate Love
4.5. The Principle of Love for People of Truth
4.6. The Principle of Love against Injustice
4.7. The Principle of Love against Aggression
4.8. The Principle of Reconciliation with Love
4.9. The Principle of Uniting with Love
4.10 The Principle of Justice with Love
4.11. The Principle of Love Beyond Forgiveness
Chapter Twenty
Basic Documents in Islamic International Criminal Court
Terms and their Definitions
Some of the Letters addressed by Prophet to the Kings
Letter to the Kaiser
Letter to the King of Iran
The Letter to the Negus, the King of Abyssinia
The Letter to the Ruler of Egypt
The Letter to the Chief of Bahrain
Universal Islamic Declaration of Human Rights
The Cairo Declaration on Human Rights in Islam
Arab Charter on Human Rights
Rome Statute of the International Criminal Court
Elements of Crimes
Resolution RC/Res.6
Bibliography
Index

Citation preview

Corpus Juris of Islamic International Criminal Justice

Corpus Juris of Islamic International Criminal Justice By

Farhad Malekian

Corpus Juris of Islamic International Criminal Justice By Farhad Malekian This book first published 2017 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2017 by Farhad Malekian [email protected] All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-5275-0323-2 ISBN (13): 978-1-5275-0323-6 The cover illustration demonstrates the Islamic prophet Judgement when he was a young man and Islamic religion was not yet revealed to him. He solved one of the serious disputes between different clans by lifting the Hajarul Aswad, ΩϮγϷ΍ ήΠΤϟ΍ al-‫ـ‬ajar al-Aswad, also called Black Stone into its right position at al-Kaaba in Mecca. The illustration taken from the book ϊϣΎΟ Φϳέ΍ϮΘϟ΍ Jami’ al-Tawarikh (literally “Compendium of Chronicles”, often referred to as The Universal History or History of the World written by Rashid al-Din, published in Tabriz, Persia, 1307 A.D.

To our dearest lovely child victims of armed conflicts Afghani, Iraqi, Kurdish, Lebanese, Libyan, Palestinian, Rwandan, Sudani, Syrian, Tibetan, Yazidis, Yemeni, and all others in our cruel civilisations

The ink of the scholar is more sacred than the blood of the martyr —The Second source of Shariah

Of all that is written, I love only what a person has written with his own blood —Nietzsche

“I have those last weeks had in front of me a note where I have written ‘Malekian’s dream’. What he wishes to achieve is a coordination between Western states’ positivism and Islamic legal theory in a system which generates a uniform notion of international criminal law. This is highly worthwhile given the important role of Islam in international society - a significance which we have neglected in our international jurisprudence. Although there are political and economic relations that control the fate of the world, it is refreshing and has widespread value that someone analyses the various philosophical and spiritual foundations that function as cornerstones for the entire corpus juris. Here he makes a great effort. Malekian's scholarly production is very comprehensive. He is an extraordinarily energetic researcher. He also shows great analytical skill. That Malekian has a definite scholarly competence, I consider it totally evident. And the same thing applies to his competence as a professor.”1

1

Excerpt from 24 pp. judgment of Malekian’s works dealing with comparative international criminal law and procedure. Written by Professor Knut Sveri, 2009, 2011.

TABLE OF CONTENTS

Acknowledgements .................................................................................. xvi Preface ..................................................................................................... xvii Introduction .............................................................................................. xix Chapter One ................................................................................................. 1 Conundrums of Islamic Philosophy 1. Comparative Criminal Law ................................................................ 1 2. Division of Islam................................................................................ 5 3. Mohammad or Kant ..........................................................................11 4. Beccaria in Quranology ................................................................... 15 5. Gradual Modification ....................................................................... 19 6. Socialism within Islam ..................................................................... 21 7. Pella’s Principle of ‘Judicial Conscience’ in Islam .......................... 23 8. Bertrand Russell on Islam ................................................................ 26 9. Christianity amid Islam .................................................................... 29 10. The Laws of the Common Father of Man ...................................... 33 11. Common Quality of Beliefs ........................................................... 37 12. Sovereignty of Rights .................................................................... 40 13. Indispensable Guarantees............................................................... 41 Chapter Two .............................................................................................. 45 Shariah within Adquisitorial International Criminal Litigation 1. The Code of Conduct of Islam ......................................................... 45 2. Traditional Principles of Criminal Jurisdiction ................................ 46 3. Habeas Corpus ................................................................................. 49 4. Knowledge of Jurisdiction ............................................................... 51 5. Theory of Actus Reus ....................................................................... 53 6. Beyond any Reasonable Doubt ........................................................ 58 7. Adaptation of an Islamic Criminal Court ......................................... 60 8. Shariah Adquisitorial System .......................................................... 64 9. Rendering Justice ............................................................................. 66 10. Shariah in an International Criminal Court.................................... 71 11. Philosophers Condemning Wrongful Applications of Islam .......... 74 12. Violation of Individual Rights ........................................................ 78

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Table of Contents

Chapter Three ............................................................................................ 83 Sources of Shariah Criminal Legislation 1. The Boundaries of Sources .............................................................. 83 1.1.The Quran ................................................................................ 84 1.1.1. Protest Against Inequalities ............................................ 87 1.1.2. Automatic Application .................................................... 88 1.2. Sunnah ..................................................................................... 90 1.3. Consensus ................................................................................ 93 1.4. Juridical Analogy..................................................................... 95 2. No Compulsion in Ideologies .......................................................... 98 3. Peaceful Settlement of Disputes .................................................... 101 4. A Comparative Examination of Sources ........................................ 102 Chapter Four ............................................................................................ 105 Shariah Codifying Inquisitorial Judgments 1. Legal Philosophy ........................................................................... 105 2. The Roots of the System ................................................................ 107 3. The Inquisitorial Codes .................................................................. 109 4. Interpretation by Judges ..................................................................112 5. Civil Law ........................................................................................113 6. Islamic Inquisitorial System............................................................114 7. Defendant in Inquisitorial and Adversarial Proceedings .................116 8. Powers of the Judge ........................................................................117 8.1. Active Judge ...........................................................................117 8.2. The Lay Judges.......................................................................119 8.3. The Islamic Assessors ........................................................... 124 8.4. Positive Role of the Judge ..................................................... 124 8.5. The Passive Role of Attorneys .............................................. 126 8.6. The Length of Trial................................................................ 128 Chapter Five ............................................................................................ 131 Shariah Neighbouring Adversarial Judgments 1. Roots of Adversarial Systems ........................................................ 131 2. Common Law ................................................................................ 133 3. Jury or No Jury .............................................................................. 134 4. Leading Principles ......................................................................... 136 5. Criminal Cases ............................................................................... 138 6. Powers of the Judge ....................................................................... 141 7. Witnesses in Adversarial Systems .................................................. 143 7.1. Process of Hearing ................................................................ 143 7.2. Witnesses ............................................................................... 144 8. Advantages of Common Law ......................................................... 147

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Chapter Six .............................................................................................. 149 Classification of Crimes in Shariah Criminal Law 1. Legal Disciplines ........................................................................... 149 2. Hudud ............................................................................................ 150 3. Qisas .............................................................................................. 152 4. Tazir ............................................................................................... 156 5. Prescribed Crimes .......................................................................... 158 6. Diyah.............................................................................................. 159 7. The Core Crimes in an Islamic International Criminal Court ........ 162 7.1. Acts Constituting War Crimes ............................................... 163 7.1.1. War Crimes in Courts.................................................... 165 7.1.2. Defensive War............................................................... 170 7.1.3. Assisting Victims .......................................................... 173 7.1.4. Protection of Fundamental Rights ................................ 174 7.1.5. Fulfilment of Serious Obligations................................. 175 7.1.6. Treatment of Prisoners .................................................. 175 7.2. Crimes Against Humanity ..................................................... 177 7.2.1. Wisdom of Committing Wrongful Conduct .................. 179 7.2.2. The Existence of the Principle of Intent........................ 180 7.2.3. A Wrongful Conduct ..................................................... 181 7.2.4. A Criminal Plan............................................................. 182 7.2.5. No Policy of Widespread Attack ................................... 183 7.2.6. Policy of Systematic Attack .......................................... 185 7.2.7. A Wilful Blindness ........................................................ 186 7.2.8. List of Crimes Against Humanity ................................. 187 7.3. Genocide ............................................................................... 188 7.3.1. Srebrenica Genocide Case ............................................ 190 7.3.1.1. The Bias View of the ICJ ..................................... 190 7.3.1.2. The Poor Nature of Ruling ................................... 192 7.3.1.3. Unrealistic Conditions .......................................... 195 7.3.2. Genocide in an Islamic International Criminal Court ... 197 7.3.3. Classification ................................................................ 197 7.3.4. Criminalization in Human Rights ................................. 198 7.4. Aggression ............................................................................. 199 7.4.1. No Aggression against Aggressor ................................. 202 7.4.2. Absolute Necessity........................................................ 205 7.4.3. The Concept of Proportionality in Islam....................... 206 7.4.4. Evaluating Aggression ................................................. 208

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Chapter Seven.......................................................................................... 210 Shariah Strengthening Criminal Jurisdiction 1. Judiciary System ............................................................................ 210 2. Classification of Law ..................................................................... 213 3. Classification of Courts.................................................................. 215 3.1. Supremacy ............................................................................. 215 3.2. Fatwa Revolutionary Court ................................................... 216 4. Integrity in Court............................................................................ 218 5. The Rejection of the Caste of Priesthood ....................................... 219 Chapter Eight ........................................................................................... 222 The Basic Principles of International Criminal Courts 1. The Fundamental Principles of Criminal Justice ........................... 222 2. The Principle of de lege lata .......................................................... 224 3. The Principle of Nullum Crimen Sine Lege................................... 225 4. Nulla poena sine lege ..................................................................... 227 5. Ni bis in idem ................................................................................. 228 5.1. Double Jeopardy .................................................................... 229 6. Subjects of Both Legal Systems..................................................... 232 7. Recognition of Crimes within Both Legislations ........................... 234 8. Categories of Crimes...................................................................... 235 9. Proper Distribution of Justice ........................................................ 237 Chapter Nine............................................................................................ 240 Creation of an Islamic International Criminal Court 1. The Dilemma of the Court ............................................................. 240 2. The ICC in Islamic Codes .............................................................. 242 3. Substantive Crimes in the Islamic Criminal Code ......................... 244 4. Completing the Islamic Code by the Complementarity Principle .... 245 5. Primacy of Jurisdiction .................................................................. 247 6. Prevention of Impunity .................................................................. 249 7. Admissibility .................................................................................. 250 8. Hybrid Jurisdiction......................................................................... 252 Chapter Ten ............................................................................................. 256 Qualifications in an Islamic International Criminal Court 1. The Principle of Criminal Charges................................................. 256 2. The Principle of Appropriate Locality ........................................... 258 3. The Principle of Qualification of Judges........................................ 259 4. The Principle of an Appeal Court................................................... 261 5. The Principle of Qualification of Prosecutors ................................ 264 6. The Principle of Equality of Treatment .......................................... 265

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Chapter Eleven ........................................................................................ 270 Arguments on Evidence in an Islamic International Criminal Court 1. Presumed Innocence ...................................................................... 270 2. Evidence......................................................................................... 273 3. Nature of Evidence ........................................................................ 276 4. Confession through Consent .......................................................... 277 5. Charges before Trial ....................................................................... 278 6. The Scope of Charges .................................................................... 281 7. Substance of Islamic Evidence ...................................................... 282 Chapter Twelve ........................................................................................ 285 Harmonising the Procedural Conditions for the Trial of the Accused 1. Comparative Judicial Trial ............................................................. 285 2. Arguments on Guilty Pleas ............................................................ 287 3. Corpus of Guilty Pleas ................................................................... 289 4. Witness Requirements .................................................................... 291 5. Testimony ....................................................................................... 292 6. Testimony of Witnesses.................................................................. 294 7. Testimony of a Judge ..................................................................... 296 8. Testimony of Women ..................................................................... 297 9. Nature of Evidence ........................................................................ 298 10. Reliability of Evidence ................................................................ 299 11. Rights of Accused in Customary International Law..................... 301 Chapter Thirteen ...................................................................................... 305 The Criminal Defendant in an Islamic International Criminal Court 1. Anatomy of Rights ......................................................................... 305 2. Assembly of Rights ........................................................................ 307 2.1. Right to Counsel .................................................................... 307 2.2. Specific Rights ...................................................................... 310 2.3. Initial Rights ...........................................................................311 2.4. Right to Certain Facilities...................................................... 313 2.5. Rights under Procedures........................................................ 314 3. Lawful Indictment .......................................................................... 315 4. Rights of Women ........................................................................... 316 Chapter Fourteen ..................................................................................... 318 Requisite Corpus of International Methods of Criminal Jurisdiction 1. Accusation as a Principle ............................................................... 318 2. Raison d'être of Accusation............................................................ 320 3. Model of Jurisdiction ..................................................................... 321

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Table of Contents

4. Reforming Accusatorial Models .................................................... 323 5. The Power of the Accusatorial Verdict ........................................... 325 6. Inquisitorial or Adversarial ............................................................ 326 7. Presumption of Innocence.............................................................. 327 8. Different Criminal Procedures ....................................................... 328 9. Compensation ................................................................................ 329 10. Responsibility of the Public ......................................................... 330 Chapter Fifteen ........................................................................................ 331 Advocating Punishments in an Islamic International Criminal Court 1. Absentis A Code ............................................................................. 331 2. Adaptability .................................................................................... 333 3. Inalienable Principles ..................................................................... 334 4. Rules of Confession ....................................................................... 337 5. Forgiveness .................................................................................... 339 6. Qualified Punishment..................................................................... 341 6.1. Retributive Character ............................................................ 341 6.2. Preventive Validity ................................................................ 342 6.3. Protective Validity ................................................................. 342 6.4. Elimination of Evil ................................................................ 342 6.5. Rehabilitation ........................................................................ 343 6.6. Restoration ............................................................................ 343 6.7. Reformation of Norms........................................................... 344 6.8. Repressive Function .............................................................. 345 6.9. Apology ................................................................................. 346 6.10. Compensation ...................................................................... 346 6.11. Amnesty ............................................................................... 347 6.12. Reinstitution of Civil Rights................................................ 348 6.13. Methods of Punishment ....................................................... 348 6.14. Mitigation of Punishment .................................................... 349 6.15. Abolition of Severe Penalties .............................................. 352 7. Excluding Penalties against Women .............................................. 354 Chapter Sixteen ....................................................................................... 357 The Quest of International Criminal Accountability in Islamic Proceedings 1. Evading Criminal Responsibility ................................................... 357 2. Islamic Border of Criminal Responsibility .................................... 360 3. Deliberate Abuse of Freedom ........................................................ 363 4. Violations against Mankind............................................................ 366 5. High-Ranking Officials .................................................................. 368

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6. Overlapping Court Principles......................................................... 371 7. Similar Elements of Criminal Responsibility................................. 374 7.1. Age of Criminal Responsibility ............................................. 375 7.2. Intent ..................................................................................... 376 7.3. Participation .......................................................................... 378 7.4. Mitigation .............................................................................. 379 7.5. Joint Criminal Enterprise....................................................... 380 Chapter Seventeen ................................................................................... 383 Gauging Criminal Sanctions in a Shariah International Criminal Court 1. Evaluating the Judgment of Christ................................................. 383 2. Equality Before the Judgement of God .......................................... 385 3. Equality Before the Court of Law .................................................. 387 4. Classical Concepts of Judgements ................................................. 389 4.1. Not Fitting To Be a Judge ...................................................... 389 4.2. The Case of a Jewish Lady .................................................... 391 4.3. Vertical System of Justice ...................................................... 392 Chapter Eighteen ..................................................................................... 397 Complementarity Principle in an Islamic International Criminal Court 1. Complementarity in the ICC .......................................................... 397 1.1. Challenges to the Jurisdiction of an Islamic Criminal Court ... 400 1.2. Obligations of Islamic Law to the ICC.................................. 405 2. The ISIS Case ................................................................................ 408 2.1. ISIS and Mens Rea ................................................................ 412 2.2. Declaration of the Prosecutor of the ICC .............................. 414 2.3. Barbarians ............................................................................. 417 2.4. War Crimes by ISIS ............................................................... 419 2.5. Islamic Core Principles of Humanitarian Law ...................... 421 2.6. Crimes against Humanity by ISIS ......................................... 424 2.7. Genocide or Quasi-Genocide by ISIS ................................... 427 2.7.1. A List of Genocide Crimes Committed by ISIS ............ 432 2.7.2. Childrenicide ................................................................ 435 2.7.2.1. Legislative Principles of Humanitarian ................ 435 2.7.2.2. Basic Principles of Islamic Justice ....................... 438 2.7.2.3. Systematic Violations of Safeguards .................... 441 2.7.2.4. Specific Principles of Justice................................ 442 3. Al-Bashir Case ............................................................................... 446

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Chapter Nineteen ..................................................................................... 449 The Vision of Justice with Love in Islamic Criminal Rehabilitation 1. Legal Characteristics of Love ........................................................ 449 2. Distributing Love in Justice ........................................................... 452 3. Weight of Love in Criminal Justice................................................ 456 4. The Main Codes on Love ............................................................... 459 4.1. The Principle of Necessarium for Family Love .................... 459 4.2. The Principle of Cultivating Love ......................................... 461 4.3. The Principle of Granting Love for Amity ............................ 461 4.4. The principle of Inappropriate Love ...................................... 462 4.5. The Principle of Love for People of Truth............................. 463 4.6. The Principle of Love against Injustice ................................. 464 4.7. The Principle of Love against Aggression ............................. 465 4.8. The Principle of Reconciliation with Love............................ 466 4.9. The Principle of Uniting with Love....................................... 466 4.10 The Principle of Justice with Love ....................................... 467 4.11. The Principle of Love Beyond Forgiveness......................... 468 Chapter Twenty........................................................................................ 469 Concluding with the Opus of Injustice Basic Documents in Islamic International Criminal Court ...................... 475 Terms and their Definitions................................................................ 475 Some of the Letters addressed by Prophet to the Kings ..................... 477 Letter to the Kaiser............................................................................. 477 Letter to the King of Iran ................................................................... 477 The Letter to the Negus, the King of Abyssinia ................................. 478 The Letter to the Ruler of Egypt ........................................................ 478 The Letter to the Chief of Bahrain ..................................................... 479 Universal Islamic Declaration of Human Rights ..................................... 480 The Cairo Declaration on Human Rights in Islam................................... 493 Arab Charter on Human Rights ............................................................... 499 Rome Statute of the International Criminal Court ................................... 514 Elements of Crimes ................................................................................. 585 Resolution RC/Res.6 ............................................................................... 704

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Bibliography ............................................................................................ 710 Index ........................................................................................................ 741

ACKNOWLEDGEMENTS

My colleague Dr. Johanna Rinceanu from the Max Planck Institute for Foreign and International Criminal Law has had a major role in encouraging me to persevere and complete this decent scientific endeavour. Please give me your consent to express some words about her brilliant personal capacity at the opening of this comparative volume: Socrates trains us in how to achieve careful reasoning in ethics; Plato drives us towards a pure dialectic pattern of philosophy and humanity; Aristotle teaches us the arguments needed for the moral philosophy of what is right and wrong. Rinceanu’s personality embodies all of this philosophical academic inheritance – vanish ego before entering into the vocabulary of justice. It indicates the integration of three most ancient and basic Persian principles of Avesta with her being – good thoughts, good words, and good deeds. This is the entire perception of natural and spiritual values.

PREFACE

It would be impossible to write a book on the codex of comparative international criminal law in connection with justice and not speak about the dignity and equal quality of all men. The corpus juris of all good legislations of the civilisations of humankind, the structure of all the religions of the world, and the theory of all the great philosophers of law ought to be based on love, if the good faith of various nations is not going to be a subject of suspicion in our international legal and political relations. By this, we mean that love is an invisible, unreadable, and intangible norm integrated into the common principles of human nature and the general principles of customary law requiring empathy for one another. Love underlies the strong human drive for justice and fairness. It is the animating spirit of international humanitarian conventional criminal law in preventing flagrant violations of human integrity. It also is the basis of the norm of understanding for unanimous consent in the General Assembly of the United Nations resolutions. In addition, it gives us the power to prevent irrational actions and underlies the very well established norm, allowing and requiring the international community of human beings to respond against grave breaches committed by powerful states when nothing else is effective.1

Whoever knows what the nature of love really is, whoever understands its alarming effects of non-existence, and disastrous results, will eagerly consent that the structure of our social justice should be based on love, morality and law in order to prevent injustice. Before going into all these complicated questions of comparative international criminal law and justice, I offer my heartfelt and full thanks to Professors Ulrich Sieber and Hans-Jörg Albrecht who have been very helpful in many aspects of my research in order for me to accomplish the work. Equally, I thank Professor Albin Eser and Dr. Nandor Knust for their friendly exchanges. I have also been encouraged by the generous, promising words of senior researcher Harald Arnold from Germany, Persian Professor - Mansour Rahmdel during his visit to Europe, Dr. Ivan 1

Farhad Malekian, Judgments of Love in Criminal Justice (Germany: Springer, 2017), p.24.

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Preface

Salvadori from Italy, and Daniel Ariza Zapata from Colombia. A number of other researchers and professors in other parts of Europe have encouraged me in my work. In Africa, during my visit to Dakar Senegal, I received good suggestions from my colleagues there, particularly from the diplomats of Iraq and Germany. What can I say about Dr. Yvonne Shah-Schlageter and her generous extension of personal knowledge into the academic coherence of this manuscript and her convincing, convivial, and critical dialogue? Let me put it this way: my future manuscripts will shine if the judgment of this queen of accuracy will shed light again on the thoughts in their chapters’ gates. The manuscript has also significantly benefited from the personal knowledge and skill of my good colleague Indira Tie, who has been accessible at all times for the sake of enhancing its linguistic stringency and making other crucial improvements during the process of scripting this comprehensive work. Expressions of thanks will definitely fall short of presenting my sincere appreciation. My personal thanks to everyone. However, responsibility for any errors in the precision of presentations, deductions, and interpretations remains mine alone to bear. The love to tolerate the demanding work of this heavy volume has flourished from my permanent loves í my four sisters. In our relations, to a great level, whenever I met them, they cover their hands and their feet, because I could not express my deep love to them except by going on my knees and kissing their hands and feet. This relationship continues, even to this day. Needless to say, my four children and their mother are the core of life and the keys to my spirit and the continuation of my work. I also wish to express my genuine thanks and appreciation to the publisher of this volume. The staffs at Cambridge Scholars Publishing are not only dedicated and highly professional but their accessibility made collaboration easy and facilitated staying within the agreed schedule. Finally, I should clarify here that I not only love all Muslims in the world, but also all non-Muslims in the world, and this includes my Jewish family of brothers and sisters. Written in the Sovereignty of the European Union; Max Planck Institute for Foreign and International Criminal Law; and others, Farhad Malekian Director of the Institute of International Criminal Law Uppsala, Sweden Freiburg, Germany, 14 February + 23 July, 2017

INTRODUCTION

Human civilisation is the record of polarization, savagery, brutality, injustice and atrocities of one law against another law and opposition of one religion against another religion.1 The corpus juris of substantive criminal law including inquisitorial, adversarial, or any other “adquisitorial” legal system has no democratic legal personality as long as injustice is carried out against even only one civilian in any part of the world.2 This fresh scholarly oeuvre evaluates the major comparative philosophy of Islamic international criminal justice. It is an in-depth analysis of the necessities of creating an Islamic international criminal court, it’s possible jurisdiction, proceedings, judgments, and sanctions. It implies a court functioning under the legal personality of the International Criminal Court. Here, comparative international criminal lawyers with basic knowledge of Shariah would contribute to the prevention of crimes and impunity at an international level. The morality and philosophy of Islamic justice are highly relevant with reference to the brutal acts committed directly or indirectly under the pretext of Islamic rules by groups and governments. In order to achieve the goals of this volume, the work focuses on substantive criminal law and three methods of criminal procedure. They are inquisitorial, adversarial, and adquisitorial. The first two methods constitute the corpus juris of civil and common law systems. The third term presents a hybrid of the first two methods. In this context, the terms 1 Farhad Malekian, Jurisprudence of International Criminal Justice (Introduction by Professor Benjamin B. Ferencz, the former Prosecutor of the Nuremberg Tribunal (Cambridge: Cambridge Scholars Publishing, 2014); Mark J. Osiel, ‘Obeying Orders: Atrocity, Military Discipline, and the Law of War’ 86 (5) California Law Review (1998), pp.939-1129; Farhad Malekian, ‘The Child as an Autonomous Subject of Justice’ in Farhad Malekian, Kerstin Nordlöf, Sovereignty of Children in Law (Cambridge: Cambridge Scholars Publishing, 2012), pp.2-55; Farhad Malekian and Kerstin Nordlöf, - - ‘International Legal Status of Children’ in the Encyclopaedia of Criminology & Criminal Justice(United States: Wiley-Blackwell (5 volumes, 2013), vol.III, pp.1173-1178. 2 Farhad Malekian, The Monopolization of International Criminal Law in the United Nations, A Jurisprudential Approach (Almqvist & Wiksell International, Stockholm, 1993, 1995); Mark Osiel The End of Reciprocity: Terror, Torture, and the Law of War (Cambridge, Cambridge University Press, 2009).

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Introduction

“hybrid”, “mixed,” or “adquisitorial” are used interchangeably as they denote quite the same. The intention is to enhance the scope of each method of criminal procedure comprehensively. The volume examines their variations and effects on the system of international criminal justice and the system of Islamic international criminal justice as a manifestation of one soul within two bodies. Learning in an accessible way the similarities between substantive criminal law, core crimes, and the above three methods helps the reader gain an enlightened perspective on the rule of law and the reasoning behind formative shared interpretations of Western or non-Western legal systems.3 Historically, the three legal methods were not clear, or they completed one another’s motives, but became consolidated in the course of civilisation. From today’s perspective, all three legal procedural methods have long been the practice of European states, European Union courts, ad hoc international criminal tribunals, and all other jurisdictions in the world. They have also been integrated into Islamic jurisdiction. The study therefore helps to realise why we are sometimes confused by the logic of Western or non-Western laws, ethics, and books. However, we are all aware of the fact that ‘honesty is the first chapter in the book of wisdom.’4 The intention of this volume is also to be useful towards understanding the sharp criticism that has justifiably been raised by a considerable number of international lawyers against manipulated criminal tribunals such as the Iraqi or the Lebanese Courts. In addition, it may be the right time and the right idea, in spite of different opining courts and various political fights in the Security Council, to establish in the same locality of the International Criminal Court, whenever necessary, an Islamic International Criminal Court by also gathering a bulk of literature in Islamic criminal law.5 This does not imply the establishment of a new international criminal court but rather a court that maintains and acts under the same ICC principles. The difference is that it would be much stronger in its future position by including references to Islamic ethics and comparative international criminal lawyers with knowledge of Islamic regulations. The court could also have an entirely independent character and its own ad hoc legal personality. Moreover, the permanent International Criminal Court 3

Claude Lombois, Droit Pénal International (1971); Claude Lombois, Droit Pénal International (1979). 4 Buddha. 5 A. Anwarullah, The Criminal Law of Islam (Kuala Lumpur: A.S. Noordeen, 1997).

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(including its prosecutor) stated that the ICC has no jurisdiction to prosecute ISIS despite 'crimes of unspeakable cruelty'.6 This volume does not encourage the development of substantive and procedural Islamic law. Nor does it confirm the biased Muslim practices of the relevant law. There have been quite a few genuine Muslim authorities in each Muslim society who have followed the true order and substance of the law. The same applies to European Union law and most other legal practices in any country of the world. Examples include the European Courts warning Sweden about violations of many conventional provisions in its internal system. Despite their differences, European Union law and Islamic law have certain substantive values, for example concerning human rights law, which constitute the basic essence of law regardless of different interpretations. These are equality between genders, freedom of speech, abolition of slavery, abolition of capital punishment, prohibition of rape, condemnation of savagery, rejection of brutality or barbarity, establishment of the basic rights of the child, and implementation of fair justice concerning victims, witnesses, and the accused. The intention is therefore to provide a systematic treatment of what used to be known as the discrimination between different legal systems and, in doing so, to minimise the gap between Western and non-Western legal systems. In particular, I anticipate that the book will be of value to those judges, prosecutors, legislators, politicians, practitioners, law reformers, academic researchers, and students of all colleges of law or political science who wish to decrease discrimination between the two types of rules of law. Additionally, all individuals or entities working on the topic of terror, terrorists, and terrorism ought to read the book. The book condemns the brutal activities of ISIS and calls for the establishment of an Islamic international criminal court for their prosecution and punishment. The book’s chapters therefore present an analysis of different aspects of Islamic law, which are increasingly causing serious political conflicts due to the emergence of the Islamic State. We have to learn true Islamic justice before we judge.

6 Available at https://www.theguardian.com/law/2015/apr/08/icc-no-jurisdictionprosecute-isis-despite-crimes-unspeakable-cruelty (visited on 12 February 2017).

CHAPTER ONE CONUNDRUMS OF ISLAMIC PHILOSOPHY

1. Comparative Criminal Law The history of comparative criminal law is one of the most significant branches of criminal law. Many national rules have been modified, abolished, or reintegrated into the outcomes of comparative criminal law. In fact, the beginning of the nineteenth century brought with it great hopes by advocating the consolidation of the relevant law. Therefore, the need for a comparative analysis of substantive criminal law is an old prerequisite for the development of the corpus juris of criminal law. One of the main reasons for a study in comparative criminal law is that it may most carefully investigate all the facts and principles relative to the substantive criminal elements in various countries across the globe. For example, the legal maxim, ignorantia juris non excusat is applicable to civil as well as criminal jurisprudence in all legal systems. The maxim says that ignorance of the law is no excuse. Likewise, the EU doctrine of criminal law developed due to the expansion of comparative criminal law. European criminal law is a system of rules operating within the framework of the member states of the European Union. However, one of the serious criticisms levelled against European lawyers is, and will forever remain, their serious negligence to thoroughly examine questions relating to a considerable number of other cultures under European Union jurisdictions. The situation is therefore very disappointing when we are faced with the contemporary issues and conflicts of different cultures within the jurisdiction of European member states. Another aspect of this situation that has received far too little attention in previous studies of comparative criminal law is the serious effect of Islamic criminal law in the sphere of modern international legislations. In the words of a judge of the International Court of Justice, “there is no doubt that a new era of Islamic jurisprudence lies ahead, as full of vitality as any of the ages past and as full of determination to make of the Islamic

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Chapter One

law an instrument to the solution of the most complex and modern problems conjured up by the present technological age.”1 The matter of comparative criminal law is more urgent when it comes to the horizontal context of international law, international criminal law, and international criminal justice. Even the practice of the ICJ proves that references to the law of non-western states are very rare and, if there is any reference at all, it is not expressed in the judgments of the Court but in the dissenting opinion of a judge from a different cultural background. Thus, comparative international criminal law and justice have not been accorded appropriate representation. This is even evident in the Statute of the International Criminal Court (ICC). One should not put aside the fact that the intention of justice is to establish justice for the satisfaction of the victims and not for the satisfaction of the Statute of the ICC. This makes it truly worthwhile to learn how to incorporate other cross-cultural attitudes towards rules of criminal law. At the outset of a comparative inquiry, it must be emphasised that the core reason for comparative criminal law, in particular comparative international criminal justice, is to identify the strengths, weaknesses, and similarities in various legal systems. The differences and similarities between doctrinal rules in international criminal justice and Islamic international criminal justice are clearly related. In reality, conundrums in the philosophy of criminal law are not the conundrums of Islamic law alone but serious dilemmas in both legal systems. The works of comparativists are thus not only based on the study of several legal systems but also on the unification of those legal systems.2 It is often believed that comparative law highlights and helps solve the serious problems that arise in the application of rules, and it is particularly significant to recognise this in the case of Islamic international law and justice.3 And yet, a comparative analysis of fundamental differences in the 1

C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (New York: St. Martin’s Press), p.123. 2 Consult David Nelken (ed.), Comparing Legal Cultures (London: Routledge, 1997). 3 For instance, according to one view, Islamic international law is not a part of dogma, but ‘is the product of a continuing process of juridical speculation by authoritative jurists over the ages. The Islamic law of nations is part of the corpus of Islamic law just as the original jus gentium was a branch of municipal Roman law. Islamic law is a religious law only in the sense that its basic ethical grounds and some of its general principles are to be found in the Quran and the pronouncements of the Prophet Muhammad. Beyond that, the corpus of Islamic law as it developed over the ages is ‘manmade’ in the sense that it resulted from the efforts of the jurists of the various schools of law. If civil law can be described

Conundrums of Islamic Philosophy

3

norms of criminal law and the capability of comparative international criminal law beyond abstract legal doctrine highlights the necessity to consider criminal law and justice from all points of view rather than to limit ourselves to political or geographical, e.g., European, settings. This unfortunate lack of comparative curiosity in the corpus of international criminal law also extends to the entire legal discipline of comparative criminal justice. Because of our misunderstanding of each other’s cultural attitudes and languages, we are facing challenges in criminal justice systems. One glance at the development of Islamic criminal law and Islamic international criminal justice reveals the fact that there are many issues that are the same but dealt with in different languages and cultures. From a comparative perspective, many terms and their legal concepts are more or less similar. These include concepts such as actus reus, mens rea, the concept of murder with or without intention, voluntary manslaughter, offences against persons as well as consent, theft, rape, and other relevant assaults. Also included are the concepts of self-defence, mistake of fact, mistake of law, intoxication and its effects, complicity in crime, the notion of attempt, conspiracy and incitement, intentional or unintentional omission, malicious conduct, recklessness, various concepts of risk, and even the subjective and objective questions arising in the judicial proceedings. Comparative criminal law considers it its duty to resolve/reconcile any challenges and to improve the value of justice. The questions and answers become a vital and necessary catalyser, as insistence on the substance of valid norms becomes increasingly important in the fields of international crime and international criminal justice. This holds particularly true when taking into consideration that criminal law, like all laws, must be susceptible to a logical, rational, and comprehensive examination. In other words, if international criminal justice implements rules or applies philosophical theories that appear to be capricious to other nations, or if nations encounter suspicious attitudes on the policy of international criminal justice, then international criminal justice would undoubtedly fall into disrepute, as it regrettably has today. Our intentions should not lose sight of the concept of humanity, the concept of justice, the notion of as a legislator’s law as to its source and common law as a judge’s law, then Islamic law is a jurist’s law. There is very little that is rigid and immutable in Islamic law.’ G.M. Badr, ‘A Survey of Islamic International Law’, (1982) 76 Proceedings of the American Society of International Law, p. 56-61, at 56. Quoted also in Shaheen Sardar Ali and Javaid Rehman, ‘The concept of Jihad in Islamic International Law’, 10 (3), Journal of Conflict & Security Law (2005), pp. 321-343, at 326.

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Chapter One

equality among men, and the very notion of happiness of the human race. Impartiality in justice may minimize the concept of international criminal violations. Vattel puts all these considerations together within the concept of the comparative nature of equality and asserts that: It is impossible for Nations to fully acquit themselves of their mutual duties if they do not love one another. Offices of humanity should proceed from that pure source, and they will thus retain the character and perfection of it. Then we shall see Nations aid one another with sincerity and true kindness, labour earnestly for their common happiness, and promote peace without jealously and without distrust…What would be the happiness of human race if these benevolent precepts of nature were everywhere observed. Nations would mutually exchange their products and their knowledge; profound peace would reign upon the earth and would enrich it with its precious fruits; industry, science, and the art would be devoted to promoting our happiness no less than satisfactory our needs. Violent means would no longer be used to decide such differences as might arise. They would be terminated by forbearance and by the application of principles of justice and equity. The world would take on the appearance of a great Republic, all men would live together as brothers, and each would be a citizen of the universe. Why should the idea be but a beautiful dream, when it is based upon the very nature of man’s being?4

In civil law systems, most laws are legislature-made, while in common law systems much law is judge-made, not necessarily as an abstract succession of rules but rather propounded in the course of decision-making in actual cases and developed from precedent to precedent. It is hence of utmost significance for both legal systems and their advocates not to produce arbitrary rulings but reasoned judgments. This is of practical importance in the sphere of international standards. It implies the fact that comparative knowledge is crucial. An understanding of comparative international criminal law and justice therefore requires respect for those substantive principles in both legal systems that are necessary for the proper implementation of equal justice. However, there are no objective standards of legal equality and what it consists of. Nor is it essentially important which law is enforced in order to achieve the notion of equality, but it is imperative that the cultural norms of all nations be respected equally and one-eyed justice be prevented. 4

E. De. Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereign, translation of the edition of 1758 by Charles G. Fenwick (Washington: Carnegie Institution of Washington, Books I, I, III, IV, 1916), paras.11-16, pp.116-118. Italic added.

Conundrums of Islamic Philosophy

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Thus, one of the functions of comparative international criminal law is to guarantee protection of equitable legal rules. What I mean by going as directly as an arrow to the basic legal rules is to secure peace among nations, with the hope that one day we can see criminal laws become more and more united rather than remaining isolated phenomena.

2. Division of Islam Islamic theory, Islamic law, and Islamic society have been interpreted differently. ‘The Prophet himself never claimed that Islam was a new religion. He asserted on the other hand, that it was as old as the hills.’5 It is believed that religions complete one another’s philosophies. This is an essential condition or condicio sine qua non. Accordingly, Islam is a religion that has existed since the beginning of the word civilisation but under different names and rules, all of which focus on a single God. From time to time, however, Islamic religion has been ‘corrupted.’6 For example, it has been said that Adam, Abraham, Ishmael, Moses, and Jesus, or the son of Mary, and Muhammad, the son of Abdullah, revealed Islam. However, each revelation used a different name.7 All these highest perfections united together form an utterly simple guide for human beings towards the unity of God.8 The formal theory of Islam is based on three principles: the existence of a messenger or rasul, the existence of one God or tawhid, and the existence of brotherhood. Islamic theory also emphasises four significant complementary principles in order to enlighten human beings about the reality of life. These are faith, truth, good deeds, and patience. The Quran or the main source says that ‘By the present time of judgment, humankind is certainly in the state of leaving this life gradually, except those who have faith to the creator, and perform righteous deeds, and counsel one another to hold the truth and encourage one another to be patient.’9 All these factors lead to happiness of the spirit and make man independent of lies, fakes, and false accusations.

5

Asaf A. Fyzee, Outlines of Muhammadan Law (Delhi, Oxford University Press, 1978), p.12. 6 Id. p.13. 7 Id. 8 Id. 9 Q, 113:1-3.

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Chapter One

In the beginning, Islamic philosophy had two core functions.10 These were religion and politics.11 It was not anticipated for the latter, politics, to become permanent, but it has regrettably become stronger than its primary religious function. Islamic theory was supposed to be “a spirit of reasonable compromise, a dislike of pushing things to extremes.”12 The two functions also constituted “the essence of the Prophet’s own character.”13 However, the authorities of Islamic law interpreted them in favour of their love for power and eventually forgot the strong metaphysical commands of the Quran: Woe to those who give less in measure and weight. Those who, when they receive from men demand full measure. However, when they have to give by measure or weight, give back less than duties.14 You should give just measure and weight and do not deprive people things that are their due and do not cause corruption on the earth after its perfection. This is good for you if you had faith.15

The main language of Islam talks about individual duties.16 It is therefore quite different from that of modern statutes prohibiting, commanding, or applying the law. The language of Islam is thus based on individual understanding, individual enforcement, and individual cooperation in order to work towards the positive fulfilment of the needs of a given society. Islamic law is not only based on legal rules but also on moral

10

Seymour Vesey-Fitzgerald, Muhammadan Law: An Abridgment According to its Various Schools (first edition 1931), (Reprinted in Germany: Sciencia Verlaf Aalen, 1979), p.1. 11 Shaheen Sardar Ali, ‘Systematically closed, cognitively open? A critical Analysis of Transformative Processes in Islamic Law and Muslim State Practice’ in Lisbet Christoffersen, H. R Iverson, H. Petersen, H and M. Warburg, (ed.), Religion in the 21st Century : Challenges and Transformations (London: Ashgate, 2010), pp. 119140. 12 Seymour Vesey-Fitzgerald, note 10, p.1. 13 Id. 14 The Q, 83:1-3. 15 The Q, 7:85. 16 N. J. Coulson, ‘The State and the Individual in Islamic Law’, Vol. 6, No. the International and Comparative Law Quarterly (1957), pp.49-60. Available at https://www.jstor.org/stable/pdf/755895.pdf visited 22 January 2017; Osman Abdel-Malek al-Saleh, The Right of the Individual to Personal Security in Islam in Bassiouni (1982), pp.55-90; Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003).

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appeal.17 This can be “a persuasion, or a warning, an allusion to the possible benefit or harm that may accrue from observing or violating an injunction, or a promise of reward/punishment in the hereafter.”18 It should, however, be emphasized here that there is a serious difference between a command and a prohibition in the law of the Quran. They have different legal characteristics. A command (amr) implies a variety of definitions. It can be demanding, ordering, preventive or permissive. The majority view is that a command is an obligation of a different nature, depending on the subject of the command. The fulfilment of the command in the Quran may therefore be a soft or hard obligation and may have a guiding nature. Prohibition, however is the opposite of a command in the main source of Islam. Like a command, a prohibition (nahy) has different characteristics. One of the most serious forms of prohibition in Islam is to avoid killing and not slay the life God has made sacred, which some Islamic countries regrettably do in their application of visible and invisible capital punishment.19 The brutal conduct of ISIS is another example. The Quran says: Come, I will recite what your Lord has prohibited to you. Join not anything as equal with Him; be good to your parents; kill not your children on a plea of want; We provide sustenance for you and for them; do not approach immoralities. Whether open or secret; take not life, which God has made

17

Irshad Abal-Haqq, ‘Islamic Law: An Overview of Its Origin and Elements’, 1 Journal of Islamic Law and Culture (1996), 1-60; Irshad Abal-Haqq, ‘Legal Injunction of the Quran’, (1997) 2 Journal of Islamic Law 53-92; Irshad AbalHaqq, ‘The Legal Definition of Islam: An Examination of Judicial, Legislative, Mainstream and Non-traditional Interpretations’, (1996) 1 Journal of Islamic Law 105-185; Irshad Abal-Haqq, ‘Islamic Law: An Overview of Its Origin and Elements’, 7 Journal of Islamic Law and Culture, (2002), 27-110; Deina Abdelkader, Social Justice in Islam. Herndon, VA: IIIT, 2000; Khalifa Abdul Hakim, Fundamental Human Rights (Lahore, 1952); Khalifa Abdul Hakim, ‘The Natural Law in the Moslem Tradition’, 5 Natural Law Institute Proceedings (1951); Feisal Abdul-Rauf, Islam: A Sacred Law, What Every Muslim Should Know about the Shari`ah. Qiblah Books (Threshold Books, 2000). 18 Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: Islamic Society, 1991), p. 139. 19 Coulson, note16, p. 54. Consult also William A. Schabas, ‘Islam and the Death Penalty’, 9 William Marry Bill of Rights journal (2000), p.223- 236. Available at http://scholarship.law.wm.edu/wmborj/vol9/iss1/13 (Visited on 2 May 2017). Under Ayatollah Khomeini regime, approx. 20,000 individuals have been brutally killed with the wrongful interpretation of Islamic philosophy and ethic.

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Chapter One sacred, except by way of justice and law: thus He command you, that you may learn wisdom.20

All these moral or legal forms of commands and prohibitions can be detected throughout the moral or legal philosophy of Islam.21 Islamic theory, law, and even criminal law are based on five pillars. Any violation of these pillars creates a moral duty, if not a legal one. These pillars are called arkƗn al-IslƗm or, more popularly, arkƗn al-dƯn, also called Kulliyyat. They are the indispensible basic principles of Islam or the main cornerstones of the religion of Islam. Islam has two main branches. These are Sunni and Shia.22 Both share the same values in essence, but because of political authorities, Islam has become divided. Pillars of Sunni Islam are i) Shahada meaning faith; ii) Salat implying prayer; iii) ZakƗt denoting charity; iv) Sawm covering fasting; and v) Hajj requiring pilgrimage to Mecca. Pillars of Shia Islam are i) Tawhid, which means a single God; ii) Adl, which implies the righteousness of divine justice; iii) Nubuwwah, which confirms the prophethood; iv) Imamah, which means succession to Mohammad; and v) Mi'ad, which means the day of judgment and the resurrection. These five pillars of Shia are further strengthened by ten additional principles called furnj‫ ޏ‬al-dƯn. These include Salat, Sawm, ZakƗt, Khums. The latter means an annual taxation of one fifth of the benefits that has been passed on without use in a year. This is given to the poor and needy people. Others are Hajj, Jihad, Amr-bil-Maroof or doing good; Nahi Anil Munkar on avoiding wrong, including Tawalla, expressing love towards Good; and Tabarra on expressing disassociation and hatred towards Evil. It is a fact that the Organisation of the Islamic Cooperation or Organisation de la Coopération Islamique,23 which is considered the 20

Q, 6:151. Coulson, note 16, p.54. 22 The third branch of Islam is Sufism. 23 The Organization has international legal personality which was founded in 1969. It has fifty-seven members states. In 2008, their population collectively was over 1.6 billion. The states members are Republic Of Azerbaijan, Hashemite Kingdom Of Jordan, Islamic Republic Of Afghanistan, Republic Of Albania, State Of The United Arab Emirates, Republic Of Indonesia, Republic Of Uzbekistan, Republic Of Uganda, Islamic Republic Of Iran, Islamic Republic Of Pakistan, Kingdom Of Bahrain, Brunei-Darussalam, People’s Republic Of Bangladesh, Republic Of Benin, Burkina-Faso (Then Upper Volta), Republic Of Tajikistan, Republic Of Turkey, Republic Of Turkmenistan, Republic Of Chad, Republic Of Togo, Republic Of Tunisia, People’s Democratic Republic Of Algeria, Republic Of 21

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second largest intergovernmental organisation after the United Nations, consists of fifty-seven Muslim state members.24 Since Sunni is the largest Djibouti, Kingdom Of Saudi Arabia, Republic Of Senegal, Republic Of The Sudan, Syrian Arab Republic, Republic Of Suriname, Republic Of Sierra Leone, Republic Of Somalia, Republic Of Iraq, Sultanate Of Oman, Republic Of Gabon, Republic Of The Gambia, Republic Of Guyana, Republic Of Guinea, Republic Of Guinea-Bissau, State Of Palestine, Union Of The Comoros, Kyrgyz Republic, State Of Qatar, Republic Of Kazakhstan, Republic Of Cameroon, Republic Of Cote D'ivoire, State Of Kuwait, Republic Of Lebanon, Great Socialist People’s Libyan Arab Jamahiriya, Republic Of Maldives, Republic Of Mali, Malaysia, Arab Republic Of Egypt, Kingdom Of Morocco, Islamic Republic Of Mauritania, Republic Of Mozambique, Republic Of Niger, Federal Republic Of Nigeria, Republic Of Yemen. The Observer States Are: The Russian Federation, Turkish Cypriot State, Kingdom Of Thailand, Central African Republic, Bosnia And Herzegovina. 24 Toni Johnson, The Organization of the Islamic Conference, (June 29, 2010), available at http://www.cfr.org/religion/organization-islamic-conference/p22563. The objectives of the Organisation of the Islamic Conference are: ‘1. To enhance and consolidate the bonds of fraternity and solidarity among the Member States; 2.To safeguard and protect the common interests and support the legitimate causes of the Member States and coordinate and unify the efforts of the Member States in view of the challenges faced by the Islamic world in particular and the international community in general; 3. To respect the right of self-determination and non-interference in the domestic affairs and to respect sovereignty, independence and territorial integrity of each Member State; 4. To support the restoration of complete sovereignty and territorial integrity of any Member State under occupation, as a result of aggression, on the basis of international law and cooperation with the relevant international and regional organisations; 5. To ensure active participation of the Member States in the global political, economic and social decision-making processes to secure their common interests; 6. To promote inter-state relations based on justice, mutual respect and good neighbourliness to ensure global peace, security and harmony; 7. To reaffirm its support for the rights of peoples as stipulated in the UN Charter and international law; 8. To support and empower the Palestinian people to exercise their right to self-determination and establish their sovereign State with Al-Quds Al-Sharif as its capital, while safeguarding its historic and Islamic character as well as the Holy places therein; 9. To strengthen intra-Islamic economic and trade cooperation; in order to achieve economic integration leading to the establishment of an Islamic Common Market; 10. To exert efforts to achieve sustainable and comprehensive human development and economic well-being in Member States; 11. To disseminate, promote and preserve the Islamic teachings and values based on moderation and tolerance, promote Islamic culture and safeguard Islamic heritage; 12. To protect and defend the true image of Islam, to combat defamation of Islam and encourage dialogue among civilisations and religions; 13. To enhance and develop science and technology and encourage research and cooperation among Member States in these

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branch of Islam, the overall majority of the members of the organisation are Sunni. Countries such as Iran, Iraq, Azerbaijan, Bahrain, and Lebanon, having a majority Shia population, represent the minority. It must be noted here that the fact that both the majority and minority have similar rights and duties, or a similar notion of faith, does not necessarily mean organisational or religious equality. The selection and identification of major theological developments is necessarily subjective. What occurred at a given time in history and what consequences ensued are not viewed the same by different scholars. Historians, theologians, philosophers, and social scientists differ as to what constitutes a significant event in the affairs of a given culture or with respect to a religion’s evolutionary course. Arguably, the most significant developments in Muslim theology were the transcription of the Quran during the Uthman’s khalifa (23-35AH/644656CE), the compilation of the Prophet’s a hadith by Al-Bukhari and Muslim in 849 CE, the Sunni/shia split, and the development of the four major Sunni schools and three major Shia sects; the Muctazila movement; the Sufi movement; and the contemporary secular-democratic reformation revisionist movement among Muslim intellectuals. There have been other major or salient historical events that have significantly impacted theological perspectives and which are covered in historical scholarly works. Each such event, in turn, can become a catalyst for other historical

fields; 14. To promote and to protect human rights and fundamental freedoms including the rights of women, children, youth, elderly and people with special needs as well as the preservation of Islamic family values; 15. To emphasize, protect and promote the role of the family as the natural and fundamental unit of society; 16. To safeguard the rights, dignity and religious and cultural identity of Muslim communities and minorities in non-Member States; 17. To promote and defend unified position on issues of common interest in the international fora; 18. To cooperate in combating terrorism in all its forms and manifestations, organised crime, illicit drug trafficking, corruption, money laundering and human trafficking; 19. To cooperate and coordinate in humanitarian emergencies such as natural disasters; 20. To promote cooperation in social, cultural and information fields among the Member States.’ Article 1 of the Charter of the Organisation. Available at http://www.comcec.org/wp-content/uploads/2015/07/OIC_Charter1.pdf. Both websites visited 22 January 2017. Generally see Mansour Rahmdel, ’Money laundering in Iranian law: present and future’, 6 Journal of Money Laundering Control (2003), pp.182-190. Available at https://doi.org/10.1108/13685200310809 536 (visited on 26 July 2017).

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developments and, again in turn, the final event has an impact on theological and legal developments.25 Both branches of Islam are evidently equal and neither one is closer to the main sources of Islam than the other. They are also themselves divided into various groups. These are, for example, Hanafi (Sunni), Maliki (Sunni), Shafi'i (Sunni), Hanbali (Sunni) or Ja`fari (inc. Mustaali-Taiyabi Ismaili) (Shia), Zaidiyyah (Shia), Ibadiyyah, and Zahiriyah. Nonetheless, the fact is that the division into a Sunni and a Shia branch has caused the philosophy of Islamic religion to be interpreted differently, ultimately causing serious contradictions between the two groups that are not only illogical but also impractical. “In turn, this meant that Muslim leaders became more despotic, less observant of the law, and more inclined to violate human rights and social justice dictates. This condition has existed more or less consistently throughout Islam’s history.”26 The division has caused both branches to be used against each other by foreign political authorities, intrigues, and, ultimately, the emergence of dangerous groups such as ISIS. This is a fact and one of the serious conundrums of the Islamic criminal legal system today.

3. Mohammad or Kant Islamic theory, legal reasoning, criminal law, and factual development have to be based on democracy.27 Islamic legal theory includes, to a large extent, the philosophy of criminology, which has unfortunately been misunderstood in the civilisation of man, even almost 1400 years after its revelation.28 The Islamic legal concept, its political notions and its philosophical reasoning are based on economy, sociology, psychology, 25 M. Cherif Bassiouni, The SharƯah and Islamic Criminal Justice in the Time of War and Peace (Cambridge University Press, Cambridge, 2014), pp.28-29. 26 M. Cherif Bassiouni, Criminal Justice in the Time of War and Peace (Cambridge University Press, Cambridge, 2014), p. 29. 27 As asserted by an Indian philosopher, Islam “was the first religion that preached and practiced democracy; for, in the mosque, when the call for prayer is sounded and worshippers are gathered together, the democracy of Islam is embodied five times a day when the peasant and king kneel side by side and proclaim: ‘God alone is great.’” S. Naidu, A talk given to the Young Men’s Muslim Association (Madras, 1917). Visit http://www.columbia.edu/itc/mealac/pritchett/00islamlinks/txt_sarojinin aidu_islam_1917.html, (19 December 2016). 28 H.A.R Gibb, Mohammadanism: An Historical Survey (London, New York, Toronto, 1949); Bosworth-Smith, R, Mohammad and Mohammadanism (London, 1889).

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criminal recognition, rehabilitation, amnesty, historical evidence, examination of witnesses, and prevention of criminal behaviour from different angles, including at the individual, social, and international levels.29 How then could Islamic philosophy just present a religious concept of legal and penal reasoning?30 To some, there is no doubt that there was a ‘Kantian conception of existence’31 in Islamic theory. Outstandingly, the idea of the German philosopher Kant has been entered into Article 1 (1) of the constitution of Germany and is also reflected in the Shariah constitution – the Quran. Article 1 (1) of the German constitution on the high value of the dignity of human beings stipulates that “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” The Quran also lays significant value on the dignity of human beings, regardless of their race, status, or even gender: "We have bestowed dignity on the children of Adam; provided them with transport on land and sea; given them for sustenance things good and pure; and conferred on them special favours, above a great part of our creation."32 The founder of Islamic philosophy had no alternative other than to present it as religion, as divine inspiration, and as the philosophy of God’s law. This was in order to achieve true happiness.33 He himself was a 29

For instance see Nicolas P Aghnides, Mohammadan Theories of Finance with an Introduction to Mohammadan Law and a Bibliography (Columbia University, New York, London, 1916); Abdullah Saad Alarefi, ‘Overview of Islamic Law’, International Criminal Law Review, vol. 9, Number 4, 2009, pp.707-731; Muhammad Ali, A brief Sketch of the Life of the Prophet of Islam (Lahore, 1928); Muhammad Ali, Islam or the Natural Religion of Man: A Brief Sketch of Its Principles as given in the Holy Quran (Lahore, 1912); S. A. Ali, The Ethics of Islam (Calcutta, 1893); S. A. Ali, The Spirit of Islam (London, 1896 and Delhi 1981); J.N.D. Anderson, Islamic Law in the Modern World (New York University Press, 1959); Sir T.W. Arnold, The Preaching of Islam (London, 1913). 30 Duncan B. Macdonald, Development of Muslim Theology, Jurisprudence and Constitutional Theory (Lahore: The premier Book House, 1972), p.192. 31 Id. 32 Q, 17:70. Immanuel Kant (1724-1804, Germany). 33 Consult Tariq Ramadan, In the Footsteps of the Prophet: Lessons from the Life of Muhammad (Oxford: Oxford University Press, 2007), pp.4-5; Napoléon Bonaparte indicated that “Moses has revealed the existence of God to his nation. Jesus Christ revealed to the Roman world, Muhammad to the old continent... Arabia was idolatrous when, six centuries after Jesus, Muhammad introduced the worship of the God of Abraham, of Ishmael, of Moses, and Jesus. The Ariyans and some other sects had disturbed the tranquillity of the east by agitating the question of the nature of the Father, the son, and the Holy Ghost. Muhammad declared that there was none but one God who had no father, no son and that the trinity imported

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businessperson, having travelled to different regions and having participated in different productive discussions. This meant a practical education at a time when the concept of education and particularly university education did not exist at all. The Prophet had to present his philosophy of justice in such a way that he would not be wholly rejected by the members of different societies at the time. When he says “Lucky is the woman whose first child is a daughter,” he is evidently calling for the principle of equality, enlightenment, and wisdom. This is in order to open the heart of society by way of encouraging a certain awareness and by decreasing a certain, long cultivated ignorance within his own or other cultures.34 It was the same for Immanuel Kant. Unfortunately, he is known for protecting the idea of capital punishment.35 Of course he did, but he represented the religious and political ideas of his time. This was the way in which he hoped to bring about true enlightenment to human civilisation in the future. Had he chosen other approaches to the question of capital punishment, he would have been strongly rejected because of the existence of a propensity to evil in the nature of man and the lack of sufficient knowledge to understand this phenomenon. Kant therefore had no alternative, since the strong voice of the Church, serious social conflicts, and blatant ignorance were altogether the master of an improper understanding of natural law, natural rights, and the

the idea of idolatry… I hope the time is not far off when I shall be able to unite all the wise and educated men of all the countries and establish a uniform regime based on the principles of Quran, which alone are true and which alone can lead men to happiness.” Napoléon Bonaparte as quoted in Cherfils, ‘Bonaparte et Islam,’ Paris, France, pp. 105, 125. 34 Consult Hamidullah, Muhammad, The First Written Constitution in the World (2nd. edn, Lahore, 1968). 35 For the analysis of Kant’s theories see Pablo Muchnik, Kant’s Theory of Evil: An Essay on the Dangers of Self-love and the Aperiodicity of History (Lexington Books, 2010); Henry Allison, Kant’s Theory of Freedom (Cambridge University Press, 1990), 2-3, 11-12; Sharon Anderson-Gold, Unnecessary Evil: History and Moral Progress in the Philosophy of Immanuel Kant (SUNY Press, 2001), 15-17; Sharon Anderson-Gold, Unnecessary Evil: History and Moral Progress in the Philosophy of Immanuel Kant (SUNY Press, 2001), 15; L. Emil, ‘Fackenheim, Kant and Radical Evil’, in Ruth Chadwick, Immanuel Kant: Critical Assessments (Routledge, 1992, 3ed.), 259-273, 260; Allen Wood, Kant’s Ethical Thought (Cambridge University Press, 1999), 289; Immanuel Kant, ‘Religion within the Limits of Reason Alone’, in Religion and Rational Theology, ed. and transl. Allen Wood and George di Giovanni (Cambridge University Press, 1996), 93.

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philosophy of justice.36 In particular, Kant clarifies our evil nature in the following well-known passage: Envy, tyranny, greed, and the malignant inclinations associated with these, assail his nature, which on its own is undemanding, as soon as he is among human beings; nor is it even necessary to presuppose that these are sunk into evil and are examples to lead him astray; it suffices that they are there, that they surround him, and that they are human beings, and they will mutually corrupt one another's moral predisposition and make one another evil.37

If Kant had spoken about the notion of rehabilitation, reintegration of criminals, or the abolition of capital punishment, he might have lost his position and livelihood. This was the same for Mohammad, who presented his idea for a society almost 1300 years earlier. Hence, in certain sensitive social matters, the Prophet of Islam was forced to follow the standard principles of Arab clans, who were very influential and powerful. An analogy can be made to the present situation of international, social, criminal, political, and metaphysical justice. Which state of Europe does not really understand the hidden political agenda in international criminal matters but still chooses to be silent because its own economic, political, and social life may be put at risk?38 For instance, in the United Kingdom, the last excursions were carried out in 1964. This means one year before the entire abolition of capital punishment for murder in Great Britain in 1965, and in Northern Ireland in 1973. Then, the question is how could the Islamic concept of criminal

36

That may be one of the reasons why Kant criticised Islamic religion and supported the philosophy of Church religion while ignoring all wars that had been carried out under the theory of Christianity. 37 Allen Wood, Kant’s Ethical Thought (Cambridge University Press, 1999), 289; Immanuel Kant, ‘Religion within the Limits of Reason Alone’, in Religion and Rational Theology, ed. and transl. Allen Wood and George di Giovanni (Cambridge University Press, 1996), 93. 38 See the new research on economic crimes and couurption by S. Roksandiü Vidliþka, Prosecuting Serious Economic Crimes as International Crimes: A New Mandate for the ICC?, Duncker & Humblot (fall 2017 forthcoming), Conclusion, 365, 375; S. Roksandiü Vidliþka, Severe Economic Crimes Committed in Transitional Periods –Crimes under International Criminal Law, in Anna-Maria Getos Kalac, Hans Jörg Albercht, Michael Kilchling (eds.), Mapping the Criminological Landscape of the Balkans: A survery on Criminology and Crime with an Expedition itno the Criminal Landscape of the Balkans (Max Plancksociety for the Advancennebt of Scinece, 2014), pp.467-498, at 486.

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jurisdiction abolish capital punishment for murder almost 1300 years before the United Kingdom between the Arab primitive clans? Mohammad’s opinion would have been entirely rejected; he might have been killed or condemned to death by stoning if he had voiced his opinion openly without hidden views. Consequently, he presented the entire theory of Islam in the form of a development of case law, in the hopes that it would be modified and understood by his followers and that the theory of Islam would gradually reveal its progressive, radical, criminological, and rehabilitation purposes, including the chief reason for its existence, which is enlightenment through truth. Throughout the Quran, this is why we read about different evidence from different historical cases of the world. If Islam were to be understood correctly, its chief criminal provisions and all relevant punishments would be reduced to a minimum. Paradoxically, if criminal law, criminal science, a criminal lawyer, and a criminal court do not understand that the reason for implementing criminal procedures is not necessarily punishment, they should first consider their rules in view of the law of nature. If the rules of law in religion do not relay the message that slaying people is against the natural rights of mankind and its substance, and if Mohammad were propagating a theory with the intention of killing those who were not following Islamic theory, then he would not have transmitted the law of God but the law of a murderous mankind. Certainly, criminal law and religious theory should reduce mistreatment, misunderstanding, and misapplication of the law or the propensity to evil in the nature of law. This has to be the main intention of any law, including the Islamic law of nations or an Islamic international criminal court. For Mohammad and Kant, it is the supreme principle of morality and freedom from evil that encourage wisdom. Evil and wisdom imply our nature as beings possessing two inclinations. These are animal inclinations and the capacity to understand moral law through reason. However, evidence proves that there is a natural inclination in human beings to commit moral corruption. In other words, our rational capacity makes us distinctive and special, and not pleasure and pain. This is why Mohammad and Kant insist that an action must have moral worth and both choose a motive that is independent of all irrational dependency.

4. Beccaria in Quranology The Arabs could not understand the method of the science of enlightenment presented to their society nor could they grasp this political

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philosophy of law. Beccaria presented the highest and most excellent philosophy of criminal justice to his academic colleagues but was sharply rejected in almost all countries.39 His idea that capital punishment is not the final stage of criminal law and should not be used as a model to strengthen criminal law was not seen as useful and was even considered dangerous for the machinery of criminal justice.40 In his well-known piece Dei delitti e delle pene or “On Crimes and Punishments,” he not only condemned the death penalty but also torture for the purpose of extracting information or meting out punishment. However, Beccaria’s treatise was enormously influential on Bentham and Blackstone. Almost two and a half centuries later, our understanding of his theory is not only different, but his theory is accepted today as the basic philosophy of criminal justice as well as the decisive element of international human rights conventions and international criminal law.41 The whole idea of international criminal courts, including permanent ad 39

On Cesare Beccaria (1738-1794, Italy) see Bernard E. Harcourt, Beccaria's 'On Crimes and Punishments': A Mirror on the History of the Foundations of Modern Criminal Law, Coase –Sandor Institute for Law and Economics Working Paper, no.648 (2 D series), Public Law and Legal Theory Working Paper No 433 (2013), pp.1-22; available at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi? article =1633&context=law_and_economics, visited 22 January 2017: R Bellamy (ed) C Beccaria, On Crimes and Punishments, (1995). 40 On some Italian literature about Beccaria see Lorenzo Picotti (a cura di), Alle radici del diritto penale moderno: L´illuminismo di Cesare Beccaria di fronte al potere di punire (ESI, 2015); Sabrina Curti (a cura di), Rileggere dei "Dei delitti e delle pene" di Cesare Beccaria (Wolters Kluwer, 2015); Mario Pisani, Cesare Beccaria (Giuffrè editore, 2015); Sergio Jacomella, L’ attualità del pensiero di Cesare Beccaria (per una giustizia penale più civile e più umana (Cenobio, 1964); Stefano Manacorda, ‘Cesare Beccaria e la pena dell'ergastolo’, Jus (2015), pp.165–182; David Brunelli, ‘Pena e moralismo penale nella rilettura di Cesare Beccaria’, Archivio penale (2015), pp.41–53; Alberto Cadoppi, ‘Perchè il cittadino possa '...esattamente calcolare gl'inconvenienti di un misfatto' Attualità e limiti del pensiero di Beccaria in tema di legalità’, L'Indice penale (2015), pp.569–598; Fausto Giunta, ‘Addio Beccaria?’, La giustizia penale [1930], (2014), pp.248–256; Giorgio Marinucci, ‘Beccaria penalista, nostro contemporaneo’, Rivista italiana di diritto e procedura penale (2014), pp.2025–2042; Mario Pisani, ‘Cesare Beccaria e la sua missione universale’, Rivista italiana di diritto e procedura penale (2014), pp.2043-2052; Bernard E. Harcourt, ‘Dei delitti e delle pene' di Beccaria: uno strumento di riflessione sulla storia delle fondamenta del diritto penale moderno’ Criminalia (2013), pp.149–178; Il caso Beccaria. A 250 anni dalla pubblicazione del «Dei delitti e delle pene (Società editrice il Mulino, 2016); 41 Farhad Malekian, Documents on the Principles of International Human Rights (Stockholm: Norstedts juridik, 2007).

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hoc tribunals or their statutes, is also focused on the high merits of this principle. The application of capital punishment in any legal system of the world is considered a serious violation of the fundamental principles of human rights law.42 Nonetheless, capital punishment has not yet been abolished in all non-Muslim states. I am referring here to the visible application of capital punishment and not the invisible one. Arabs have had a similar problem of acceptance as the Europeans, and they still have to work out that the entrance to the real virtue of Islamic theory is not religious ideology but the unity of love, the unity of humanity, and the enlightenment of a criminal legal system and justice. It is against this basic background that I call the main source of Islam, i.e., the Quran, Quranology, or the first criminological book presented in the world.43 And the Prophet of Islam is the first theoretical and practical criminologist who conveys the great message of enlightenment in his book. He makes us aware of the original source of criminal liability, the concept of mens rea, and of conduct that is a constituent element in all crimes, the nature of actus reus, as opposed to the mental state of the accused. Even in the case of mens rea, he encourages pardon with full guiding principles. He tells us of the obscurity of the law by means of various prophetic tactics in his capacity, as did Beccaria in Dei delitti e delle pene44 with what he called l’oscuritá delle leggi or the blindness of the law. Beccaria’s message was clear, but almost everyone in Europe rejected his opinion. In view of this, how could anyone realise that the hidden message of Islam is much stronger than that of Beccaria? Islamic philosophy also presents a statistical method or approach to the philosophy of law, social ethics, and the development of proper Islamic religion. The entire source of the law is based on historical evidence and analysis of the nature of that evidence. The intention is to work with culture, knowledge, and evidence or witnesses at the same time. With their historical examples, the Islamic codes evidently do not intend to record the history of civilisation but rather the history of the development of

42

Schabas, Islam and the Death Penalty, note 19, at 235-236. See also Saeed Hasan Ibrahim, ‘Basic Principles of Criminal Procedure under Islamic Shariah: Judicial Powers in Criminal Cases’ in Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the SharƯah(London. New York: I. B. Tauris, 2003), pp17-34, at 1819. 44 On Crimes and Punishments is a book written by Cesare Beccaria, who condemned torture and capital Punishment (1764). 43

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knowledge of man and the way in which we should take proper advantage of those lessons for the sake of enlightenment.45 Islam is a religion that is essentially rationalistic in the widest sense of this term considered etymologically and historically… The teachings of the Prophet, the Quran has invariably kept its place as the fundamental starting point, and the dogma of unity of God has always been proclaimed therein with a grandeur a majesty, an invariable purity and with a note of sure conviction, which it is hard to find surpassed outside the pale of Islam. A creed so precise, so stripped of all theological complexities and consequently so accessible to the ordinary understanding might be expected to possess and does indeed possess a marvellous power of winning its way into the consciences of men.46

How then could the God of Mohammad enter all good human beings into the hypothetical concept of paradise equally and almost wholly naked, but avoid recognising that men and women are equal on earth or avoid uncovering women and covering men in their social environment? What is really the definition of a good man or a good citizen? Mohammad provided answers to all these questions, most openly, and sometimes between the lines; or it is left it up to examination via the common law or case law method, leaving the real meaning of the case to the proper deduction of the judge – Qadi í and eventually the development of case law at each given time. For instance, ‘The Quran revelations concerning women, the Sunnah of the Prophet, and the changes in the society brought on by the Prophets, indicates that Islamic society was meant to a state in which women were equal with men in all regards.’47 Regrettably, Muslims did not realise this virtual enlightenment and potential wisdom and interpreted it differently. Interestingly, the ‘progressive revelation and substitution doctrine as explained in the Grand Quran clearly affirms that circumstances and legal rules could be validly correlated. Society is the foundation of the Law and 45 Farhad Malekian, The Heaven of Justice with Love, 36 (1) Journal of the Henry Martyn Institute (2017), pp.5-29; M. A Muqtedar Khan, ‘What is Enlightenment? An Islamic Perspective’, 16 Journal of Religion & Society (2014), 1-8. 46 Edward Montet, ‘La Propagande Chretienne et ses Adversaries Musulmans,’ Paris 1890. (Also in T.W. Arnold in ‘The Preaching of Islam,’ London 1913.) Available at http://www.themodernreligion.com/quotations_islamic.htm (20 December 2016). 47 Leila P. Sayeh and Adriaen M. Morse, ‘Islam and the Treatment of Women: An Incomplete Understanding of Gradualism’, 30 Text International Law Journal (1995), p.311-334, at 321.

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the conditions, interests, or policies constitute raw material for super structure.’48 For the above reason, substitution ‘refers to the co-relation between legal rules and the changing conditions of the society. This principle is utilised for the purpose of preference, delay, specification, general applicability, qualification and limitation of the precepts.’49 We reveal our recognition of all this, by gradual enlightenment.50 The subject of this book therefore fatwas (declares and assumes) that female rulers, leaders, judges, prosecutors and clerics including chief priests are legitimate under the lessons of the enlightenment of Islamic theory.

5. Gradual Modification The idea of Islam and the entire philosophy of the Quran were a progressive development and modification of customary Arab law rather than its final codification, with its potential for serious conflict, and the rejection of a single God. Due to low interest, this quest for proof by planning for a prolonged understanding of some basic facts is not odd.51 ‘From a reverse moderate relativist perspective, the ICESCR’s progressive realization standard is employing a technique as old as the Quran itself.’52 48

Mohad Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), p11. 49 Id. 50 Unlike the political policies of many democratic countries such as Sweden and the United States, Muslim women have been leaders of their countries. Examples are i) Benazir Bhutto was the Prime Minister of Pakistan (from 1988 - 1990 and from 1993 to 1996); ii) Begum Khaleda Zia was the Prime Minister of Bangladesh (from 1991 to 1996 and again from 2001 to 2006); iii) Professor Dr. Lala Shevket served as the Secretary of State of Azerbaijan (from 1993 and 1994); iv) Tansu Çiller was the 30th Prime Minister of Turkey (from 1993 - 1996); v) Sheikh Hasina Wazed is the current Prime Minister of Bangladesh from (1996-2001, and 2009200?); vi) Mame Madior Boye was the Prime Minister of Senegal (from 20012002); vii) Megawati Sukarnoputri the leader of the Indonesian Democratic Party of Struggle served as President (from 2001 to 2004); viii) Atifete Jahjaga is the fourth and current President of Kosovo (from 2011-2016); ix) Roza Otunbayeva was sworn in as President of Kyrgystan in (2010); x) Bibi Ameenah Firdaus GuribFakim has served as the President of Mauritius in (2015). 51 Jason Morgan-Foster, ‘A New Perspective on the Universality Debate: Reverse Moderate Relativism in the Islamic Context’ 10 ILASA Journal of International & Comparative Law, pp.35-67, at65. 52 Leila P. Sayeh and Adriaen M. Morse, ‘Islam and the Treatment of Women: An Incomplete Understanding of Gradualism’, 30 Text International Law Journal (1995), p.311-334, at 318. Jason Morgan-Foster Id. pp.65-6.

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This is correctly called ‘gradualism as a method of interpretation,’53or ‘gradualism as applied to certain practices.’54 ‘All changes had as their ultimate goal a new society that would live according to more enlightened standards than those that existed prior to the Prophet’s revelations.’55 For example, the International Covenant on Economic, Social and Cultural Rights adopted a policy similar to the Islamic law revealed fourteen centuries ago. Instead of adopting rigid criteria, the Covenant requires states parties ‘to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’56 The Covenant goes even further and directs, as Mohammad’s Quran does, the states parties ‘to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’57 Islamic law also says: ‘We have honoured the sons of Adam; provided them with transport on land and sea; given them for sustenance things good and pure; and conferred on them special favours, above a great part of our creation.’58 And it continues, ‘O people, We have created you male and female and made you nations and tribes that you may know one another. Verily, the most noble of you to God is the most righteous of you. Verily, God is knowing and aware.’59 Similar policy concerning ‘progressively’ achieving a better standard of application of the law can be seen in the provisions of the Convention on the Rights of the Child.60 The Convention provides that states parties ‘undertake to promote and encourage international cooperation with a view to achieving progressively the full realization of the right recognized 53

Id., Morse, p.318. Id. p.319. 55 Id. 56 Article 2 (1). 57 Article 2 (2). 58 Q, 17:70. 59 Q, 49:13. 60 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. 54

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in the present article.’61 A group of other provisions in the Convention also strengthens these provisions. States parties have therefore recognized ‘the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity.’62 It is therefore clear that there is a sense of progressive development of understanding equality between human beings and abolition of certain harsh punishments in Islamic policy. This is called ‘forgiveness.’ This is what Islam clearly says: ‘And among His Signs is the creation of the heavens and the earth, and the variations in your languages and your colours: verily in that are Signs for those who know.’63 One cannot deny the fact, however, that neither the provisions of the Covenant on Political Rights, nor the norms of the Convention on the Rights of the Child, or even the provisions of Islamic law have achieved their goals. This is why the serious misunderstanding of Islamic philosophy continues to cause serious problems all the time and why a bulk of severe contradictions between theory and theory, ideology and ideology, philosophy and philosophy, and politics and politics turn into the brutal and savage chauvinism of the Islamic State.

6. Socialism within Islam Mohammad was definitely a radical realist but, in the shadow of Quranology, he was a Marxist;64 in the shadow of Shariah, he was Luther King with a dream of love for the universal equality of man; and he was even a Kantian but with the facet of evil not permitted in the name of God.65 This notion is reflected in his philosophy of full protection of Christianity and Judaism from all forms of persecution. In a famous covenant declared and ratified by Mohammad, he clearly observes that: 61

Article 24 (4). Article 28 (1). 63 Q, 30:22. 64 Islamic theory is close to socialism and this can be seen in its theory, sources, and practice. The Quran, recognises eight categories of people (asnaf) who are qualified according to certain conditions to receive zakat funds. This means to divide wealth and create some form of equality. The eight categories are i) those in conditions of absolute poverty, ii) those who are not able to prevent their condition, iii) those who collect zakat, iv) those whose hearts are to be reconciled, v) those who are in slavery, e.g., poor labourers, child slaves, vi) those who are in debt, vii) those who are struggling for justice, and viii) those who have no home/are wandering. 65 Malekian, The Heaven of Justice with Love, note 45. 62

22

Chapter One This is a message from Muhammad ibn Abdullah, as a covenant to those who adopt Christianity, near and far, we are with them. Verily the servants, the helpers, my followers, and I defend them, because Christians are my citizens; and by God! I hold out against anything that displeases them. No compulsion is to be on them. Neither are their judges to be removed from their jobs nor their monks from their monasteries. No one is to destroy a house of their religion, to damage it, or to carry anything from it to the Muslims' houses. Should anyone take any of these, he would spoil God's covenant and disobey His Prophet. Verily, they are my allies and have my secure charter against all that they hate. No one is to force them to travel or to oblige them to fight. The Muslims are to fight for them. If a female Christian is married to a Muslim, it is not to take place without her approval. She is not to be prevented from visiting her church to pray. Their churches are to be respected. They are neither to be prevented from repairing them nor the sacredness of their covenants. No one of the nation (Muslims) is to disobey the covenant until the Last Day (end of the world).66

Without a doubt, Mohammad would not object to those who reject Islamic theory. The theory of Islam was not meant to be force but, in fact, quite the contrary. For instance, he would condemn all criminal actions committed in the name of Islam against Danish properties in 2005. A measure of blame is therefore attached to those who, although they were chief authorities of Islamic regimes, did not take any action to prevent these actions. True Islam is the theory of tolerance or, in other words, decisions handed down by Muslims must not be qualified by violence but by listening to and observing their opponents.67 The legal concept of humanity is broadly defined as the right of existence of all human beings and the prevention of evil forces, i.e., visible or invisible forces: I seek refuge in the Lord of mankind, in the Sovereign of men the God of men, from the evil of the whispering, elusive tempter who whispers in the hearts of men 66

The original copy of this covenant is in the Topkapi Museum in Istanbul. http://www.jewishpost.com/news/Muhammads-Covenant.htmlhttp://newsrescue. com/letter-to-all-christians-from-prophet-muhammad-sa/#axzz4TMqMl24t 67 Malekian, The Heaven of Justice with Love, note 45.

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from all temptation to evil by invisible forces as well as men68

It is therefore rightly asserted that: Whether they are Western or Eastern, the Muslims of the world refer to a universe of meaning elaborated and constructed around a certain number of fundamental principles. Above and beyond the diversity of their national cultures, the essence of their faith, their identity, their being in the world, is the same; they define themselves on the basis of points of reference that explain their sense of belonging to the same community of faith and at the same time, more profoundly, root them in the universe of Islam.69

In one way or another, all these considerations imply the existence of socialism within Islam, but it should be based on the substance of love, non-violation, and forgiveness. These are three core reasons for the universalisation of Islam. Despite its credibility and appeal, Islamic theory has not only been misrepresented by a number of Muslim leaders but also by the big political parties in the Security Council for the sake of their own advantage. The contemporary political upheavals in the Arab world and in the Middle East are two dramatically clear examples. One may also add to this the creation of ISIS in the Middle East region.

7. Pella’s Principle of ‘Judicial Conscience’ in Islam The initial creator of international criminal justice between Western nations is the Romanian Professor Vespasian Pella.70 His magnificent aspiration was to protect human beings from atrocities and the immoral acts of individuals, entities, governments, and states.71 As this was an 68

Q, 114:1-6. Tariq Ramadan, Western Muslims and the Future of Islam (Oxford: Oxford University Press, 2005), p.9. 70 Consult Iulian Oncescu, Europe as Viewed from the Margins An East Central European Perspective from World War in to the Cold War (Silvir Miloiu, 2007). 71 About Pella and his excellent works on international human rights law, international criminal law, international criminal justice and draft proposal on criminal responsibility of states see Farhad Malekian, International Criminal Responsibility of States (Stockholm, 1985); Mircea Du‫܊‬u, Vespasian V. Pella (18971952): Founder of the international criminal law, Promoter of the unification of the criminal law, Architect of the international criminal justice (Universul Juridic, Bucharest, 2012); Vespasian V. Pella, La criminalité collective des états et le droit pénal de l'avenir, Bucarest : Imprimerie de l'état, (1925); Vers l'unification du droit pénal par la création d'un Institut international auprès de la Société des Nations", (1928) 3 Études Crimin. 49-56; Vespasian V. Pella, La Guerre-Crime et les 69

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objective beyond the basic principles of human rights law, he resorted to the notion of ‘judicial conscience.’ But the question is, is there really a ‘judicial conscience’ in international criminal justice or in Islamic criminal justice? Conscience considers God as a monitor of the spirit of man. Similarly, for Pella, conscience is jurisdiction’s monitor of the essence of law. He says ‘the proposition for the creation of an International Criminal Code can no longer be regarded as utopian. On the contrary, they are concrete manifestations of a powerful desideratum of the contemporary judicial conscience.’72 Again, for Pella, conscience is something that is desired as being indispensable for the corpus of justice. Thus, we may assume that the term ‘judicial conscience’ as used by Pella means a) the applicability of universal moral principles, b) the courts’ approach to the judicial principle of legality in a manner consistent with the fundamental rights in common law or civil law systems, c) the principle of proportionality in the execution of all forms of decisions, including wartime, and d) the principle of due process of law. In other words, judicial conscience means purity in law, purity in proceedings, and purity in sanctions. Whilst sources of international criminal law, including international criminal justice, take up the questions of human will for the promotion of international peace, security, prosecution, punishment, and justice, they overlap with the Islamic concept of international criminal justice or an Islamic international criminal court in many respects. As such, the basic legal sources of both legal systems are identical. The principle of judicial conscience presented in the system of international criminal justice by Professor Pella is also in conformity with and an integral part of Islamic national or international proceedings.

Criminels de Guerre (Paris, 1946); The International Association of Penal Law and the Safeguarding of Peace (Paris, 1947); Vespasian V. Pella, ‘Towards an International Criminal Court’ 44 American Journal of International Law (1950), p. 37; V. S. Sasserath, Le Président Vespasien Pella, RIDP 1953, p. 13 et seq; Memoriam: Vespasian V. Pella 1897-1952’, 46 American Journal of International Law (1952), 709-710. 72 Vespasian Pella in Revue Internationale de Droit Penal p. 275 (1928); Wim Decock, The Judge’s Conscience and the Protection of the Criminal Defendant: Moral Safeguards against Judicial Arbitrariness, pp.69-94. Available at http://pubman.mpdl.mpg.de/pubman/item/escidoc:1739547/component/escidoc:17 39546/TOCtocDatei.pdf#bck:194 (visited on 27 March 2017); see also Alexander Nikolaevich Shytov Conscience and Love in Making Judicial Decisions (Law and Philosophy Library, Springer Science, 2001).

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Take, for instance, the Bengal Civil Courts Act (VI of 1871) and the Bengal, Agra and Assam Civil Courts Act (XII of 1887), which reaffirmed the commitment to uphold Muslim or Hindu law with the concept of judicial conscience. Their aims were to achieve justice, equity, and good conscience covering different matters. One of the sections of the relevant regulations provides that (1) Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muhammadan law in cases where the parties are Muhammadan, and the Hindu law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment, been altered or abolished. (2) In cases not provided for by sub-section (1) or by any other law for the time being in force, the Court shall act according to justice equity and good conscience.73

In the procedures of international criminal justice, the ICC relies on its Statute, and the Statute in turn relies on the application and interpretation of core legal principles. All this also means that judicial conscience has to be respected. In reality, no principle of any system should go against the element of judicial conscience. Therefore, judges frequently employ the term ‘judicial conscience’ (or similar terms) in their judgments in order to emphasise the roots of the term arising from ‘common conscience.’ Conscience is often linked to the eternal response of the law. We come across certain matters which deeply touch our conscience such as the choice between rightfulness and wrongfulness. Consequently, when certain matters relate to questions of law, legal principles, and judgments, which can in turn affect the conscience of the judge, prosecutor, or legal person who is supposed to understand the real intention of the law, it becomes ‘judicial conscience.’74 73 Section 37 of the latter Act. India. Ministry of Law, The Unrepeated Central Acts with Chronological Table and Index, 2nd ed, vol. 3, From 1882 to 1897, both inclusive (Delhi: Manager of Publications, 1950), 303. Quoted in Searching for “Justice, Equity, and Good Conscience”: A Muslim re-interpretation of law in British India. Available at http://www.academia.edu/5600739/Searching_for_Just ice_Equity_and_Good_Conscience_A_Muslim_re-interpretation_of_law_in_British_ India. Italic added. 74 Consult also Sarah M . R Cravens, In Good Conscience: Expressions of Judicial Conscience in Federal Appellate Opinions (University of Akron School of Law, Akron Law Publications, 2012), pp.1-67. Available at http://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1056&context=ua_law _publications (visited on 27 March 2017). Italic added.

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8. Bertrand Russell on Islam Mohammad’s theory did not mean killing, beheading, amputating, raping, destroying, and stoning but instead the very opposite. He forbade blood feuds and made us aware of criminal liability for outlawry. When Mohammad died, he had almost nothing of economic value, contrary to the practice of Islamic leaders in our times.75 He was therefore against inequality and injustice.76 He emphasised the wrongdoer’s responsibility in his society and in the sphere of divine justice. The English historian H.G. Wells rightly asserts that: The Islamic teachings have left great traditions for equitable and gentle dealings and behaviour, and it inspires people with nobility and tolerance. These are human teachings of the highest order and at the same time practicable. These teachings brought into existence a society in which hard-heartedness and collective oppression and injustice were the least as compared with all other societies preceding it….Islam is replete with gentleness, courtesy, and fraternity.77

Bertrand Russell puts forth that: Our use of the Age the ‘Dark Age’ to cover the period from 699 to 1,000 makes our undue concentration on Wetern Europe… From India to Spain, the brilliant civilisation of Islam flourished. What was lost to Christendom at this time was not lost to civilisation, but quite the contrary… To us it seems that the West-European civilisation is civilisation, but this is a narrow view. 78

The Russian writer Leo Tolstoy, who is regarded as one of the greatest authors of all time, points out that “The legislation of Quran will spread all over the world, because it agrees with the mind, logic and wisdom.” Weeramantry, a former judge at the International Court of Justice, defines

75

For a sharp criticism of Western approach see Haider Ala Hamoudi, ‘The Death of Islamic Law’, 38 Georgia Journal of International Law & Comparative Law (2010), pp.293-337. 76 Id. pp.336-7. 77 Cambridge University Islamic Society available at http://www.isoc.co.uk/islam/ civilisation/ (20 December 2016). 78 Bertrand Russell, A History of Western Philosophy (George Allen and Unwind, London, 1948), p. 419; Farid Younos, Democratic Imperialism: Democratization and Islamization (Author House, Indiana, 2008), p. 16.

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how Quranic law had a serious influence on Montesquieu’s works.79 He goes further and states that: The Spirit of the Laws, which went into 22 editions in two years, is one of the most original and influential works in the history of jurisprudence. It was clearly not written in isolation from the Islamic texts or – Islamic experience.80

The chief concept of healing and gaining knowledge in a society for the Prophet involves re-educating, rehabilitating, relearning, accepting the equality of gender, accepting the equality of races, releasing slaves, and respecting economic equality. It also includes respecting the integrity of others, respecting the equality of women and men, accepting the hypothetical, central power of law – God/Allah – and, above all, that forgiveness comes at the end of all teaching. The misunderstanding of the philosophy of Islam has even developed into the modern concept of Islamic regimes created in Iran since 1979.81 The peaceful methods of Islamic theory were translated into the language of violence, the language of killing, the language of brutal revolutionary courts, and the language of money laundering.82 This is also being practiced by other Islamic countries.83 A clear example is Al-Bashir: the prophet (Sunnah) says ‘the Proud will not enter paradise, nor a violent Speaker.’ Islamic theories are not only misunderstood; they are being used by the intelligence agencies of powerful states against the Islamic world in order to control oil pipelines. Islamic governments use Islam as a tool against free speech, as a tool to criminalise our natural habits, and as a tool to integrate the philosophy of Islam into the law of defence. All this constitutes violations of primary Islamic principles. By contrast, Islamic philosophy is based on the basic concept of similarities of man and man, of woman and woman, and of all races. Its basic philosophy is to distribute love with love among human beings and, above all, to prohibit all types of economic theories that create inequality between human beings. These are the primary philosophies of Islamic 79

C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (New York: St. Martin’s Press, pp. 105-109. 80 Id. p. 109. 81 Sami Zubaida, Islam, the People and the State: Essays on Political Ideas and Movements in the Middle East (London: Routledge, 1989), pp.38-39. 82 Id. pp.64-69. But also consult Tariq Ramadan, The Arab Awakening, Islam and the New Middle East (London: Penguin, 2012). 83 Id.

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theory, which have to be understood in the face of Islamic realism against fanaticism. However, we must also be aware of the fact that all these questions of equality are violated in the theory and practice of Islamic law. The common law also had many problems, but it modified and oriented itself towards the theory of change, which is taking shape, albeit very slowly. According to one writer: Though the basis of every norm of Islamic law is by theory derived directly or indirectly from God’s wishes for His peoples, in arriving at what a particular norm is for a given society, the mind of the jurist is patently visible. Therefore, the mechanics of Islamic jurisprudence, functionally speaking, are similar to the contemporary working of the law of a country possessing a common law system or a civil system of law. The character of the rules of Islamic law is therefore not spiritual but clearly secular, in the sense that such rules are made for the utilitarian purposes of a society by jurists through the use of the same techniques as employed in other legal systems; however, there is a priori, a fundamental assumption that the rules so made are ultimately based on the Quran or the sunnah. The human element in Islamic law is, therefore, as pronounced as it is in any other major legal system of the world.84

The Islamic theory of law had such intentions, but they are not understood by Islamic supporters, even today. Islamic ideas, including law, intend to create, in one word, enlightenment. This is the idea that entered the European system in the 19th century. In other words, although inquisitorial in nature, Islamic law is, contrary to what is understood, guardedly adversarial as well. The entire system demands differentiating good from bad, right from wrong, applicable rules of the law, and healing. This is also the whole intention of common law. In common law systems, the decisions of superior courts are particularly highly respected. The judges of higher courts have enjoyed exceptional status at all times. This also applies to the Islamic Qadi. Therefore, the founder of the non-governmental Russell international criminal tribunals in London, Stockholm, and Copenhagen for the prosecution and punishment of crimes committed by the United States in Vietnam is correct when he asserts that ‘the brilliant civilisation of Islam flourished’ long before Europe. The Russell Tribunal was an early instance of transitional justice against impunity and, likewise, an Islamic 84

G.M. Badr, ‘A Survey of Islamic International Law’, (1982) 76 Proceedings of the American Society of International Law, p. 56-61, at 56. Quoted also in Shaheen Sardar Ali and Javaid Rehman, ‘The concept of Jihad in Islamic International Law’, 10 (3), Journal of Conflict & Security Law (2005), pp. 321-343, at 327.

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international criminal court would perform transitional justice for the atrocities committed against Muslims or other religions in different regions of the world.

9. Christianity amid Islam ‘The universal monocracy of Islam, like the Res publica Christiana in the West, assumed that mankind constituted one supra-national community. Bound by one law and governed by one ruler.’ Otherwise, as the Quranic code puts it ‘if there were two Gods in the heaven, the universe would be ruined.’85 Therefore, the worlds of Christianity and Islam make good common sense. Professor Gibb from Oriental Studies at Oxford and Harvard concludes that “The master of science of the Muslim world was law. Law, indeed, might be said to embrace all things, human and divine, and both for its comprehensiveness and for the ardour with which its study was pursued, it would be hard to find a parallel elsewhere, except in Judaism.”86 Professor Tariq Ramadan comes to the same conclusion but with the notion of reformation of Islamic theory. 87 Many Muslim scholars (ulamâ), as well as intellectual and ordinary Muslims, oppose the use of word ‘reform’ because they think it represents a threefold danger as far as faithfulness to the Islamic transition is concerned. For some, ‘reforming’ Islam thus means – or sounds as though it means – changing Islam, preventing Islam, preventing it to adapt it to current times, which is not acceptable to a believing conscience. The second criticism comes from those who see in ‘reform’ something foreign, an approach imported from the Christian tradition to cause Islam to undergo the same evolution as Christianity and thereby make it lose its substance and its soul. The third criticism is based on the universal and ‘timeless’ character of Islam’s teachings, which therefore, the argument goes, are in no need of ‘reform’ and can be implemented in all times and in all places….88 It can be understood, then, that the two notions of tajdid and islâh convey the same idea of reform and are at the same time complementary since the former primarily (but not exclusively) refers to the relationships to texts, while the latter mainly has to do with reforming the human, spiritual, social, or political context. This revival of faith and religion through a constantly reforming approach of the understanding of 85

Q, 21:22. Hamilton A. Gibb, Mohammadanism: An Historical Survey, 2nd ed. (Oxford University Press, 1953), pp. 4-22. 87 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (Oxford: Oxford University Press, 2009), pp.10-14. 88 Id. p.11. 86

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Chapter One texts (tajdidiyyah) and of the understanding of contexts (islâhiyyah) is essential to the Islamic tradition and has been so since its early days. The first scholars who organized the various spheres and manifold tools of Islamic sciences, particularly in the areas of law and jurisprudence, integrated those dimensions, when, for example, they referred to ijtihad (the critical approach of texts) of to maslaha (common good and interest).89

We must not forget the fact that the four key aims of the science of international criminal law90 and justice, i.e., the historical, theoretical, doctrinal, and empirical factors, have proven the fact that religions have played a powerful role in the recognition, prosecution, and punishment of international crime.91 While the intention of all four elements may be different, they are deeply connected by monitoring the system of criminal justice and its dependence on all four main goals.92 It is therefore almost impossible to separate religion from the entire body of international criminal law and justice.93 Thus, there is a strong similarity between different laws, ethics, theories, and philosophies.94 This we call interconnectedness. Consequently, Islamic law becomes Jewish law and Jewish law becomes Islamic law, European Union law becomes the concept of the jihadist struggle for justice and the jihadist struggle becomes the philosophy preventing all criminal violations.95 Here, I would like to suggest that Jewish law is the most important facet of European law and that Islamic law is present in some of the most fundamental principles of Jewish law. Equally, the philosophy of Kant loses its concept of 89

Id. pp.13-14. von Bar Ludwig, Das Internationale Private- und Strafrecht, (1862). 91 Consult Farhad Malekian, Principles of Islamic International Criminal Law (Brill & Nijhoff, 2011). 92 Id. 93 Id. 94 Khadduri indicates that ‘Islam, like Christianity, emerged in a society dominated by parochial traditions and local particularisms, and since both had arisen in protest to these conditions, they adopted universal concepts and values current in the Hellenistic world; for the trend since Alexander the Great advocated his idea of the ‘unity of mankind,’ began gradually to turn from parochial to universal concepts. The Stoics carried further Alexander’s ideas and expressed their philosophy in terms of universal values.’ Majid Khadduri, (ed.), War and Peace in the Law of Islam (Baltimore: The ‘Johan Hopkins Press, 1955), p.17. 95 But consult also Susan C. Hascall, ‘Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice?’, 4 Berkeley J. Middle E. & Islamic L. (2011), pp.35-78. Available at: http://scholarship.law.berkeley.edu/cgi/viewcont ent.cgi?article=1018&context=jmeil. 90

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‘Kantianism’ and becomes like the philosophy of Marxism, and the Marxist philosophy becomes akin to the philosophy of Islamic law, and the latter to the philosophy of the Constitution of the United States as a whole, and so forth. This interconnectedness between all laws of humanity is what we have to look for.96 In Western countries, it was the opinion of the Church that crime should be treated in the context of sin. This had another significant consequence for justice in criminal legislation in the Middle Ages. It meant that the Church could allege the theory of moral obligation by resorting to the concept of moral theology and ultimately incorporate it into the theory of criminal accountability.97 It also meant that the theory of criminal responsibility was based on two original concepts: the concept of sin and the concept of intention. Both were recognised in criminal justice but with different social, political, and religious consequences. Consequently, the classical sources of interpretation of crime, criminal behaviour, and criminal responsibility were not unanimous in practice. In other words, the influence of the Church on the recognition of crime, criminal responsibility, and punishment was substantial.98 It meant that the defendant was held responsible for an accidental killing simply because of her/his involvement in the accident, which in turn justified her/his prosecution, regardless of the involuntary act of the agent of homicide. This concept of distinguishing intentional and unintentional crime can also be seen in Roman law, which was not always exempt from the concept of criminal responsibility and punishment. Thus, the principle of punishment for crimes of an unintentional nature was not entirely unknown. It follows that he who commits a wrong unknowingly must pay for it knowingly. In fact, the entire theory of the Peace of Westphalia was a number of treaties signed for the prevention of brutal crimes during the European wars of religion. The European settlements of 1648 aimed at ending the Eighty Years’ War between the Spanish and the Dutch as well as the German phase of the Thirty Years’ War.99 The Peace of Westphalia recognized three partitions of Christian tradition in the Holy Roman

96

Farhad Malekian, Judgments of Love in Criminal Justice (Germany: Springer, 2017), p.51. 97 Finbarr McCauley and J. Paul McCutcheon, Criminal Liability (Dublin, Round Hall Sweet & Maxwell, 2000), p.5. 98 Robert Cryer, Prosecuting International Crimes, Selectivity and the International Criminal Law Regime (Cambridge University Press, Cambridge, 2005), pp. 13-14. 99 The treaty of peace was negotiated in the Westphalia towns of Münster and Osnabrück in 1644. The Spanish-Dutch treaty was signed in January 1648.

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Empire. These were Roman Catholicism, Lutheranism, and Calvinism; they became known as reformed tradition. Moving into the history of the Second World War,100 the Nuremberg Tribunal tended to call into question the serious mistreatment of religious believers. The same has happened in many other wars or conflicts encouraged by the political and military powers of the permanent members of the Security Council in different parts of the world. It includes Afghanistan, Iran, and Iraq, even Iraq within itself, and the creation of ISIS. In one way or another, all these wars and regulations of the humanitarian law of armed conflict have a serious connection with the concept of religion, the effects of its rules, and its criminal jurisdiction.101 In pre-Islamic Arabia, criminal offenses were punished when the victim’s clan demanded lex talionis – so-called blood vengeance against the clan of the alleged offender, also known as “retaliation.” There were several degrees of retaliation. For instance, the sanction for murder was death, amputation for theft offences, or death by stoning for adultery. Christianity never meant to apply severe punishment; neither did Islam. However, both religions applied the most brutal forms of punishment with the use of torture. As a general norm, no one should be imprisoned without due process of law. No one should be subjected to torture under any conditions. The idea is to protect the rights of individuals, the accused, victims, witnesses, and society from any possible wrongful judicial decision. Even in Islamic criminal law, the trial of an accused person has to be carried out by official authorities and in a building that is not occupied by force. It is an established right of the plaintiff and accused to provide evidence during arrest, detention, and the pre-trial investigation.

100

The entire Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by Allied Powers was signed by the four Allies on 5 June. It included the following: “The Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated above, of the said authority and powers does not affect the annexation of Germany.” S.I.P. Campen, The Quest for Security: Some Aspects of Netherlands Foreign Policy 1945–1950 (SpringerScience Bossiness Media, B.V, 1957), p.180. 101 See generally Karima Bennoune, ‘As-Salamu ‘Alykum? Humanitrain Law in Islamic Jurisprudence’, 15 Michigan Journal of International Law (1994), pp.60543.

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10. The Laws of the Common Father of Man ‘Those who take arms without necessity, are the scourges of the human race, barbarians, enemies to society, and violators of the law of nature, or rather of the laws of the common Father of men.’102 The purpose of all these examples is to provide a necessary primary introduction to the understanding of these two methods of jurisprudence í inquisitorial and adversarial í and of the principle of accusation. My purpose is to compare all these legal systems with those of Islamic international criminal jurisdictional rules and that of the International Criminal Court (ICC). Although one may believe that these two different legal realms have diverse disciplines, in the end, the concept of Islamic international criminal jurisdiction may prove to be not far from the system of international criminal courts. The basic philosophy of all laws ought to be similar. The rule of law should not go against the rule of natural law.103 It is also well known that the General Assembly of the United Nations has repeatedly confirmed the rule of law in its resolutions. One of its resolutions emphasises that ‘human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.’104 Respect for natural rights is guaranteed by the rule of law in the instruments of the United Nations. The establishment of an Islamic international criminal court can promote democracy and the rule of law.105

102

E. De. Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereign, translation of the edition of 1758 by Charles G. Fenwick (Washington: Carnegie Institution of Washington, Books I, I, III, IV, 1916), para.354, p.232. Italic added. 103 ‘Spiritual and Temporal Authority in Islam’ 8 (1) Iqbal, (Lahore, 1959). In Islam, unity of man's spiritual and temporal are not separable. 104 The rule of law at national and international levels (70/118), Resolution adopted by the General Assembly on 14 December 2015. This was carried out on the report of the Sixth Committee (A/70/511). Particularly, the resolution invites the International Court of Justice, the United Nations Commission on International Trade Law and the International Law Commission to cooperate with the General Assembly on their current roles in promoting the rule of law. 105 The United Nations General Assembly Resolution has particularly stated that ‘the need for universal adherence to and implementation of the rule of law at both the national and international levels and its solemn commitment to an international order based on the rule of law and international law, which, together with the principles of justice, is essential for peaceful coexistence and cooperation among States.’

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To this end, however, the rule of law has a long history of being registered but not respected in Islamic theory because of the love for power.106 This hypothesis of the establishment of Islamic criminal jurisdiction will offer a philosophical argumentation, including the moral obligation of all Islamic states that are already parties to the ICC. They would be free to decide on the jurisdiction of the court under which they wish to give their consent, signature, or ratification. When they commit a crime against the legal body of international criminal law, they may fall under the jurisdiction of both legal systems because of the similarities of their rules. An international lawyer with comparative knowledge of both legal disciplines may therefore employ the system of an Islamic international criminal court. Associate Justice Robert H. Jackson of the Supreme Court of the United States and prosecutor at the International Criminal Tribunal in Nuremberg pointed out some of the reasons why Western states should take Islamic law into consideration: Every matured legal system records a store of experience with the problems of maintaining an ordered society among men. The opinion that the similarities and contrasts found in the teachings of different legal systems are among the best sources for illuminating one’s understanding of his own law and suggesting means of its improvement has won increasing acceptance in the United States. Comparison of our particular laws with those of other common-law countries has been easy and frequent, facilitated as it is by common language and tradition. Having the same foundation, their disparities are chiefly matters of detail…Western law, however modified by national considerations, is conceived and developed within the framework of Western civilisation and compatible with its 106

It is stated that “the constitutional structures of Islam between the seventh and eighteenth centuries represented a rule of law that proved to be as robust as any modern counterpart, including that of Euro-America. We may now add that the Islamic form was also unprecedented. None of the Near East’s political cultures, intimately or remotely familiar to the Muslim founding fathers, ever developed such a concept of the rule of law and, consequently, such a system of separation of powers. That it did, and that much of this history remains buried under the thick dust of colonial and Enlightenment forms of knowledge, is good cause to pry this frontier open for enquiry. Integral to this enquiry is an attempt to answer the question of why, after a century and a half of studying Islam in the West, such a profoundly important field remains an unexplored frontier.” Wael Hallaq, ‘The Quran and the Rule of Law in Islam,’ Columbia University, Middle Eastern, South Asian, and African Studies (201?), pp.1-27, at 27. Available at http://www. academia.edu/11170218/The_Quran_and_the_Rule_of_Law_in_Islam (visited on 11 March 2017).

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familiar cultural and religious ideas. Greater barriers have discouraged any general interest in Islamic law. Though our debt to Arabic culture is exhibited in the customary enumeration of our astonishing output of law reports, we long held the impression that the Muslim world had nothing to contribute to what was inside the covers. Islamic law was regarded as of speculative than of practical interest and received attention from a relatively few specialists and scholars. But a review of the reasons we have deemed such knowledge too alien to be useful to us may show that they really are reasons why we should abandon the smug belief that the Muslim experience has nothing to teach us…The fact is that this system which seems so unworkable to us has an amazing record of accomplishment.107

The system of Islamic law and its provisions are most impressively enforced through horizontal and vertical universal legal processes and ensuing individualisation of the concept of duties. All this denotes the transformation of human rights values, human respect, and high human dignity. The concept of Islamic law and its legal power may be compared with the theory of Hans Kelsen, as one example of the imperative school of thought, concerning the pure theory of law. Jurisprudence, he assures us, is concerned with ‘law as it is, not as it should be.’ But in Islamic theory (although not, of course, altogether in practice) precisely the contrary is true. Again, Kelsen defines law as a ‘system or hierarchy of norms which prescribe what always ought to happen in given circumstances’ – all resting in the final analysis on the ‘basic norm’ of the ‘first constitution’ of the state concerned. But this definition, equally obviously, can only be applied to Islamic law – in its jurisprudential theory – if we conceive this basic norm or first constitution in terms of the sovereignty of God and the authority of his revelation (as a Muslim regards it).108 While Kelsen identifies law with the rule of compulsion,109 pure Islamic law prohibits such a rule of interpretation. There is a practical difference between Kelsen’s notion of law and Islamic philosophy. One theory is based on the assumption of use of force while the other is based on the assumption of love. In addition, Kelsen believes that law must possess an apparatus of compulsion.110 For him, law has an imperative 107

Majid Khadduri and Herbert J. Liebesny (eds.), Law in the Middle East, Vol. I: Origin and Development of Islamic Law (With a foreword by Robert H. Jackson), (1955), pp. v-vii. 108 Anderson, note29, pp. 5-6. 109 Carleton Kemp Seen, Law in the Making (Oxford: Clarendon Press, 1939), p.48. 110 Id.

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nature.111 True Islamic law opposes compulsion, even the compulsion in Islamic philosophy itself.112 This philosophy should not be imperative but should be the free choice of individuals. A system of law is a manifestation of the high-level development of its civilisation. The law demonstrates the growing complexity in the interpretation, attribution, and sanctioning of the intention of the law. According to American realists, a law has the virtue of prophecies. Justice Holmes alleges that “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law.”113 An Islamic international criminal court would subject international offenders of international criminal law from Islamic nations to their own quality of legal discipline originating from God’s book. It matters less whether Islamic law is admitted or not, but it is crucial to respect a nation’s own culture and tradition. Such conduct demonstrates, in a very practical way, respect for the substance of a culture in a broader sphere of law and at an international level. This happens with due consideration of the fact that Islamic law encourages the principle of universality from a theoretical perspective and that this principle should apply even in the system of international criminal justice. Insofar as the principle of universality is a valid one in the system of jurisdiction of Western and non-Western nations, it shows to what extent the system of the United Nations, the system of international criminal law, and the system of an international supreme court give conclusive effect to a decree outside the jurisdiction of the ICC. This will become reality by establishing an Islamic international criminal court. Moreover, a considerable number of international instruments imply the right of mankind to certain inalienable rights. For instance, the United Nations Universal Declaration of Human Rights of 1948 expresses the following: 111

Id. It is also useful to quote that ‘Rawls considers his theory to be Kantian yet believes that there is a disparity in strength between the demands of justice on the national versus international levels. As is well known, Kant’s moral conception is summed up in his categorical imperative. However, the categorical imperative is given more than one formulation and two of them are quite distinct in content although Kant seems to believe that the three are equivalent. The greatest discrepancy comes between the ‘universal law’ and the ‘end in itself’ formulations, which are so distinct as to aspire substantially distinct conclusions.’ Steven LuperFoy, ‘Introduction: Global Distributive Justice’ in Steven Luper-Foy (ed.), Problems of International Justice (London: Westview Press, 1988), pp.1-24, at10. 112 Q, 2:256. 113 J.N.D. Anderson, Islamic Law in the Modern World (New York University Press, 1959), p.7.

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Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.114

The European Convention for the Protection of Human Rights and Fundamental Freedoms115 also indicates this fact. This Convention implies the unchallengeable human rights of people in Europe. Obviously, it does not prevent other cultures in other regions from exercising their own rules for the prosecution of criminals in their own areas. It is also a core principle of justice to have the right to apply one’s own provisions.116

11. Common Quality of Beliefs The concept of figh or the science in Islamic law is divided into two parts, i.e., usul and furu. They are also called usul al-figh and furu al-figh. Usul means the indispensable foundation for the rule of law dealing with sources, scopes, and methodologies of the relevant law. Furu means the branches of legal science dealing with the study of substantive branches of law. As I have mentioned elsewhere, the words and conduct of Mohammad were based on the Quran (the main source), Shariah (the Islamic law ordered by God), and figh (the science of the law). Ultimately, the Quran, Shariah, and figh actually mean the same thing. It also means 114

Article 2. Emphasised added. Convention of 1950. 116 The Preamble to the European Convention on Human Rights provides that ‘Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared; Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms; Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend; Being resolved, as the governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain rights stated in the Universal Declaration.’ 115

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that legal reasoning and judicial actions by Mohammad constitute legal precedents. Thus, when we talk about jurisprudence or the theory of Islamic law, we are talking about whatever is permitted and not permitted and whatever is encouraged by the rule of law. At this point, it should be emphasized, however, that Islamic law strongly supports other religious inspirations. This can be seen in numerous codes or versions of the Quran and even in sunnah. In addition, the word ‘Islam’ means submission to God, and this submission or Islam existed even before the revelation of Islam in Arabia.117 All other regulations in all religions, including Islam, exhibit quantity rather than quality. The only quality is submission to the single God. One of the verses clarifies that ‘The same religion has He established for you as that which He enjoined on Noah-- which We have sent by inspiration to you Mohammad-and that which We enjoined on Abraham Moses and Jesus: Namely that you should uphold the true substance of faith, and do not break up your unity therein. And even though that the unity of faith to which you O Mohammad call them appears oppressive to those who are wont to ascribe to other beings or forces a share in His divinity, God draws unto Himself everyone who is willing, and guides unto Himself everyone who turns unto Him.’118 In terms of equality of religion, the following quotations contain some of the leading guidelines to this end: Beware! Whoever is cruel and hard on a non-Muslim minority, or curtails their rights, or burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment.119 ‘…If they do come to you, either judge between them or decline to interfere...’120 However, those who have become believers (the Muslims), and the Jews, the Christians and the Sabaeans who believe in God and the Day of Judgment and strive righteously will receive their reward from the Lord and will have nothing to fear nor will they be grieved.121 Remember, when you said: "O Moses, we are tired of eating the same food (day after day), ask your Lord to give us fruits of the earth, herbs and cucumbers, grains and lentils and onions;" he said: "Would you rather exchange what is good with what is bad? Go then to the city, you shall 117

See section infra. Q, 42:13. 119 Sunnah. 120 Q, 5:42. 121 Q, 2:62. 118

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have what you ask." So they were disgraced and became indigent, earning the anger of God, for they disbelieved the word of God, and slew the prophets unjustly, for they transgressed and rebelled.122

The above quotations imply the fact that Islamic theory rejects the idea of one single culture, one arrogant race, one proud social origin, one superior theory, one sole political party, one sole language, one sole religion, one single ruler, and therefore one social attitude. The genuine notion of Islam presents the path to democratic values. This includes having different types of religion (such as the Christian, Jewish, or the Bahá'í Faith), excellent philosophies of different races, and living with different political parties from the West to the East and from the South to the North. The one and only object in Islamic theory is God. Consequently, the provision that says that ‘If anyone desires a religion other than Islam, never will it be accepted of him,’ does not necessarily mean Islam. It means nothing other than surrounding oneself with or submission to the will of God. The word Islam here constructs a common denominator or definition of God. That is why the pure Shariah forbids harming one who does not base h/his ideology on faith, revelation or God, but wisdom and knowledge. Furthermore, the system of Islamic philosophy, or the underlying structure of Islamic theory, has never been interpreted or applied at the same level and to the same degree. The theory puts full trust in the understanding of individuals from one generation to the next. An individual chooses to trust in the divine sovereignty. Thus, the metaphysics of Islam should not compel the homogeneity of individuals of one territory with another territory. Individuals within one society may have a different understanding of Islamic legal theory. In other words, ‘Islamic law has never been applied as a uniform code of law. In fact, Islamic law does not aim at uniformity. Allowances are given for geographical, cultural, social, and even peculiarities.’123 The only matter strongly emphasized in Islamic philosophy is uniformity in the observable and unobservable universe. However, Islamic authorities have misused the theories of Islamic law. Generally, people have been afraid of speaking out against Islamic theories because of a very narrow, xenophobic understanding of the theory of Islam on the part of the religious or religious political authorities. Instead, all of Islamic theory 122

Q, 2:61. A. A. Oba ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’ 51 (4) The International and Comparative Law Quarterly, (2002), pp. 817-850, at 821. Available at https://www.jstor.org/stable/3663189?seq=5#page _scan_tab_contents (visited on 3 March 2017).

123

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should be regarded as negotiating chapters for the benefit of its believers by way of purity and good faith.

12. Sovereignty of Rights The conclusion can be drawn that there is no difference between Christians, Jews, and Muslims in terms of their surrender to the sovereignty of God. The art of surrender to God in Islamic philosophy is called ‘Islam;’ in Christian philosophy, it is entitled ‘submission to the love of the God;’ and in Jewish philosophy, it is ‘submission to the God.’ The concept of equality between religions is therefore a fact. The Quran says ‘All the Messengers that We sent spoke the language of their people so that they could explain their message to them.’124 Similarly, ‘to every nation We sent a Messenger who told its people.’125 Here, the Quran uses the word messenger for Mohammad. The Quran shares the values of Christians and Jews believing in Jesus and Moses. The difference is that Islam openly respects the Jewish and Christian religions. Therefore, any conclusion by Islamic rulers that Islamic religion or law is superior to other theories or laws devaluates the nature of Islamic theory and law. The Islamic documents on human rights also confirm this fact. For instance, the Universal Islamic Declaration of Human Rights126 concerning the rights to freedom and freedom of religion maintains that ‘Every person has the right to freedom of conscience and worship in accordance with his religious beliefs.’127 Likewise, the provisions of the Cairo Declaration on Human Rights in Islam states that ‘Everyone shall have the right to live in security for himself, his religion, his dependents, his honour and his property.’128 The Arab Charter on Human Rights reflects even more strongly the equality of religion.129 It says ‘based on the faith of the Arab nations in the dignity of the human person whom God has exalted ever 124

Q, 14:4. Q, 16:36. 126 Adopted by the Islamic Council of Europe on 19 September 1981/21 Dhul Qaidah 1401. 127 Article 13. 128 Article 18 of Cairo Declaration. Adopted and Issued at the Nineteenth Islamic Conference of Foreign Ministers in Cairo on 5 August 1990. 129 League of Arab States, Arab Charter on Human Rights, May 22, 2004, came into force March 15, 2008. See also the Hussein A. Hassouna, The League of Arab States and Relational Disputes: A Study of Middle East Conflicts (Oceana Publications, 1975). 125

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since the beginning of creation … human values affirm the human right to a decent life based on freedom, justice and equality,’ including eternal principles of fraternity and tolerance among human beings and all divinely revealed religions.130 The Arab Charter specifically lays down the fact that ‘Persons belonging to minorities shall not be denied the right to enjoy their own culture, to use their own language and to practice their own religion.’131 Nor should the states parties to the Charter take measures inconsistent with their obligations under the provisions of public international law or international criminal law. Any discrimination on the grounds of race, colour, sex, language, religion, or social origin is absolutely prohibited.132 The similarities between religions, laws, and the fundamental substantive values of human beings are natural, and a realistic Islamic jurist or leader should not reject them.133 In the sense of a proper legal reasoning, a transformation occurs whenever a proper human concept is understood in connection with the origin of our moral and spiritual life. The theory of most religious laws should incorporate the concept of human dignity rather than an illusory heaven of equal principles, thereby creating abstract norms that cannot realistically be reached and may even be unachievable in view of the ultimate horizon of manmade law or natural law, i.e., death. Despite the reservations of our personal scepticism on different religious revelations, we affirm that reading extracts from various codes of religious morality  with tolerance  is not merely an aid in the interpretation of legal reasoning but is itself an exercise in learning the philosophy of religious ethics and the reasons for love, hate, and retribution. The method and essence of democratic principles compel us to dismiss the disequilibrium of violations and to guide the world towards justice and transparency. This is obviously a difficult task, which has to be worked out and achieved by us gradually.

13. Indispensable Guarantees Whereas the existence of ample human rights documents and their provisions have much to say about the basic similarities between religious rules, there is plenty of reason for an ethical debate about the creation of 130

Preamble to the Arab Charter. Article 25. 132 Article 4. 133 Tariq Ramadan, In the Footsteps of the Prophet: Lessons from the Life of Muhammad (Oxford: Oxford University Press, 2007), p.6. 131

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an Islamic international criminal court. It would help mitigate the conundrums of international criminal justice and the very controversial question of impunity. However, we must first establish whether there is an essential disparity between the inquisitorial and the adversarial systems or whether they are the same but simply viewed from different perspectives.134 Any religion, whether Islamic or non-Islamic, which does not guarantee the following rights, is obviously far from being an appropriate or satisfactory religion. These rights are stated in the International Covenant on Civil and Political Rights:135 i) All peoples have the right of self-determination.136 ii) Each party responsibility to ensure to all individuals all rights in the Covenant.137 iii) Equal right of men and women in all civil and political rights.138 iv) No derogation from essential natural rights of man.139 v) No right of destruction of any of the rights and freedoms which are broader customary or legally.140 vii) Every human being has the inherent right to life.141 vi) The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment.142 viii) The right not to be forced to slavery; slavery and the slave-trade or servitude.143 ix) Everyone has the right to liberty and security of person.144 1x) The right to be treated humanely and with full integrity.145 xi) The right not to be imprisoned for contractual obligation.146 xii) The right to liberty of movement and choice of residence.147 134

See professor Martti Koskenniemi speech in the Lauterpacht Centre for International Law (LCIL), (University of Cambridge, Law Faculty, Published on Oct 28, 2013), available at https://www.youtube.com/watch?v=-E3AGVTHsq4 (visited on 6 March 2017). 135 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49. 136 Article 1. 137 Article 2. 138 Article 3. 139 Article 4. 140 Article 5. 141 Article 6. 142 Article 7. 143 Article 8. 144 Article 9. 145 Article 10. 146 Article 11.

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xiii) The right not arbitrary be expelled.148 xiv) The right of fair and public hearing.149 xv) Guarantees for non-application of retroactive law. xvi) The right to recognition as a person before the law.150 xvii) The right to privacy, honour and reputation.151 xviii) The right to freedom of thought, conscience and religion.152 xix) The right to liberty of opinion and freedom of expression;153 xx) The prohibition for propaganda for war and hatred constituting incitement.154 xxi) The right of peaceful assembly;155 xxii) The right to freedom of association;156 xxiii) The right to marry and found a family;157 xxiv) The rights of the child;158 xxv) Political rights;159 xxvi) The right to equality before the law;160 xxvii) The rights of ethnic, religious or linguistic minorities.161 xxviii) The rights to Human Rights Committee.162

What is lacking in the modern debate about the legal statutes of international criminal justice are the provisions of Islamic international criminal justice as a manifestation of equal respect for the legal corpus of all cultures. This question has also emerged most often in conjunction with the system of ICJ jurisdiction;163 however, it remains almost without any

147

Article 12. Article 13. 149 Article 15. 150 Article 16. 151 Article 17. 152 Article 18. 153 Article 19. 154 Article 20. 155 Article 21. 156 Article 22. 157 Article 23. 158 Article 24. 159 Article 25. 160 Article 26. 161 Article 27. 162 Article 28. 163 ‘The judges from new states have been much more conservative in their attitude toward the [ICJ's] jurisdiction and the law applied by it than many Western judges. And, indeed, because of their Western education and their age, the African and Asian judges on the Court can hardly be said to represent the ideologies at present prevailing in their countries.’ Ibrahim F.I. Shihata, ‘The Attitude of New States 148

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concrete result.164 Although a considerable number of international writers favour the idea of applying the system of international law collectively, it seems that the ICJ continues to hold on to the policy of selectivity and does not refer to the international law of India, Egypt, China, or Islam.165 This selectivity is also obvious in international criminal law.

toward the International Court of Justice’, 19 International Organisation, (1965), pp.203-222 at 220-21. 164 Clark B. Lombardi, ‘Islamic Law in the Jurisprudence of the International Court of Justice: An Analysis,’ 8 (1) Chicago Journal of International Law (2007), pp.85118. 165 For these international laws see Farhad Malekian, System of International Law: Formation, Treaties, Responsibility (Uppsala, 1987); see also Lombardi, Id. pp. 94100.

CHAPTER TWO SHARIAH WITHIN ADQUISITORIAL INTERNATIONAL CRIMINAL LITIGATION

1. The Code of Conduct of Islam “Four things support the world: the learning of the wise, the justice of the great, the prayers of the good, and the valour of the brave.”1 Shariah, or the code of conduct of Islam, covers several areas such as religion, law, and economics. Although they are all an integral part of the same perception, they present different philosophies of Islam. Religion includes, inter alia, faithfulness to Islam, daily prayers, fasting, giving alms, and pilgrimage to the house of God in Mecca. Of course, in Islamic theory, the concept of law is not just limited to Islamic law; instead, all laws are an integral part of one discipline, with the difference that the laws have specific provisions in certain geographical parts of the world, which have different cultures. Consequently, Islamic law concerns civil and criminal regulations like many other laws, which present both aspects of these regulations. Still, one legal system may benefit from the ambit of another legal system and so forth. In other words, the legal body of a law consists of different parts and ideologies, which, in fact, form a collection of the jurisprudence of legal history and legal philosophical thinking. Moreover, we may not only accept the legal body of each other’s interpretations, but we may, at the same time, also sharply criticise other legal systems.2 It is correctly asserted that a penal law ought to be unambiguous, define the offence with certainty, and stipulate the precise punishment. A 1

The second source of the Islamic law. For instance, the philosophy of Immanuel Kant in his essay Zum Ewigen Frieden (Perpetual Peace) was criticised by Georg Wilhelm Friedrich Hegel in Grundlinien der Philosophie des Rechts (Elements of the Philosophy of Right), although it was developing throughout Europe. Swedish criminal law, for example, was under the influence of German philosophers such as Immanuel Kant and Friedrich Hegel from 1809 to 1920. 2

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clear example of this is the Jewish Levitical Code.3 The mandatory character of its laws is evident in codifications such as: He that strikes his father or his mother, he shall surely be put to death.4 He that stealeth a man and selleth him, or if he be found in his hands, he shall surely be put to death.5 He that curseth his father or his mother, shall surely be put to death.6

The Quran constitutes the main source of the Islamic civil and criminal justice system, but is not the law itself. Its chief function is to provide guidelines for the conduct of individuals, even though individuals are controlled by the rules determined by governments. Other main sources are Sunnah (the original tradition of the Prophet), Ijma (consensus of opinions), and Qiyas (jurisprudential analogy). Qiyas has rarely been employed in the Islamic criminal justice system. Islamic criminal law is a significant part of Shariah, consisting of rules of conduct that individuals should not commit, based on the provisions of Islam. Consequently, Islamic criminal law, like the continental and common law systems, provides for elimination, preservation, protection, abolition, rehabilitation, mediation, prohibition, prevention, prosecution, judgment, punishment, and, simultaneously, the implementation of the principles of proportionality and humanity.7

2. Traditional Principles of Criminal Jurisdiction The system of Islamic international criminal law, like the system of international criminal law, deals extensively with different principles of criminal jurisdiction. All these principles have fundamentally evolved from the concept of criminal responsibility.8 The discussion on criminal jurisdiction relates to the general principles upon which both legal systems

3

Charles Philips, Vacation Thought on Capital Punishments (London: William and Frederick G. Cash, 1857), p.44. 4 Exodus, 15. 5 Id. 16. 6 Id. 17. 7 These are the general functions of legislations of criminal laws. 8 Farhad Malekian, ‘International Criminal Responsibility: International Criminal Responsibility of Individuals’ in M. Cherif Bassiouni, International Criminal Law, Vol. Crimes (2ed, ed., New York: Transnational Publishers, 1999), pp.153-221.

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are permitted to establish their jurisdiction according to international law.9 These are: i) The first principle is the territoriality principle, which implies that the courts of states have exclusive territorial authority to exercise jurisdiction over criminal issues arising within their territories. This principle is now a settled principle of contemporary international law and an integral part of jus cogens norms. Its rules overlap with Islamic criminal justice jurisdiction. ii) The second principle is the nationality principle. It is the juxtaposition of the nationality of a person and an aspect of sovereign authority over a person.10 The nationality principle creates rights for the nation state to protect or claim criminal jurisdiction over nationals who perpetrate a criminal offence outside its territories against its nationals.11 The principle constitutes an integral part of jus cogens or customary international law. 9

For all these principles see Harvard Research on International Law: ‘Draft Convention on Jurisdiction with Respect to Crime’, 29 American Journal of International Law (1935), pp.439, 484-87; G. Fitzmaurice, ‘The General Principles of International Law”, 92 Recueil des Cours de l’Académie de Droit International1(1957-II), pp.5-222; M. Akehurst, ‘Jurisdiction in International Law’, 46 British Yearbook of International Law (1972-73), pp.145-217; Michail Vagias, The Territoriality Jurisdiction of International Criminal Court: Certain Contested Issues (Bynkers Hoek Publishing, 2010); Cedtric Ryngaert, ‘Territorial Jurisdiction Over Cross-frontier Offences: Revisiting a Classic Problem of International Criminal Law’ 9 International Criminal Law Review 9 (2009), pp.187–209; Cedric Ryngaert, ‘Jurisdiction in International Law: United States and European Perspectives (Katholieke Universiteit Leuven, Faculteit Rechtsgeleerdheid, 1979), available at https://lirias.kuleuven.be/bitstream/1979/911/2/doctoraat.pdf (Visited on 19 February, 2017); Farhad Malekian, vol. I International Criminal law (1991), pp.10-18; Beth Van Schaack / Ronald Slye, International Criminal Law and its Enforcement: Cases and Materials (United States: Foundation Press, 2015), pp.5055, EU Copyright reform: Revisiting the principle of territoriality available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/568348/EPRS_BRI(20 15)568348_EN.pdf (visited on 19 February 2017); Cedric Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press, 2009), PP.42-84; Comments from Kenya: The Scope and Application of the Principle of Universal Jurisdiction: The Report of the Six Committee (A/64/452-RES), available at http://www.un.org/en/ ga/sixth/65/ScopeAppUniJuri_StatesComments/Kenya.pdf (visited on 19 February, 2017). 10 Ian Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 5th ed., 1998), pp.303-307: Kenneth C. Randall, 'Universal Jurisdiction under International Law' 66 Texas Law Review (1988), pp.785-8. 11 Id. pp.306-7.

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Islamic law also protects its nationals. The nationality principle in Islamic law may have a broader definition. On the one hand, a Muslim state has a duty to assist its nationals. On the other hand, a Muslim state should also assist other Muslims based on the fact that the territories of any Muslim state constitute the territory of all Muslims because of divine equality. However, the latter sub-division of the principle of nationality is often not respected in practice. It only seems to be used under particular circumstances for the extension of the principle of brotherhood. iii) The third principle is the passive personality principle. Under the provisions of this principle, a state may claim and exercise criminal jurisdiction over criminal conduct committed against its nationals abroad.12 This is when a state considers the conduct to be detrimental to the security of its nationals.13 Both systems of international criminal law enjoy and apply the principle. International practice probably does recognise the validity of the passive personality principle in the peculiar case of war crimes. Belligerents forces have long been regarded as having the right to try enemies for violations of the international law of war perpetrated against their nations; it appears that notions of universal jurisdiction over war crimes are a more recent development. Also in the case of offences committed in a place not subject to the authority of nay state, there would appear to be little reason to object to jurisdiction of the state of the victim.14

iv) The fourth principle is the protective or security principle. This principle under customary international law creates rights for a state to assume criminal jurisdiction over aliens, whose acts are considered against its security, such as falsification of its currency. Although all principles may have a political nature, the legal and political interpretation of the principle of protection is rather controversial. This is due to the fact that the substance of the security principle is rather unsettled. In particular, under the protective principle, Islamic nations may recognise any acts 12 Ibid; Beth Van Schaack / Ronald Slye, International Criminal Law and its Enforcement: Cases and Materials (United States: Foundation Press, 2015), pp.50-1. 13 The notion of passive personality principle has also been one of the issues under the new legislation of the Islamic Republic of Iran in 2012. Although the arguments surrounding the passive personality principle are serious in the country, the principle has been codified into Article 8 of the new legislation. Certainly, this Article implies a new policy under this legislation. 14 Milan Sahovic and William W. Bishop, ‘The Authority of the State: Its Range with Respect to Persons and Places’ in Max Sorensen, Manual of Public International Law (London: Macmillan, 1968), pp.311-380, at 371.

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against Islamic philosophy as violations of their laws and legislations. A clear example of this are the actions against Denmark, which were not politically correct and violated Danish international legal personality. Islam means peace, listening and tolerance, as long as one is not humiliated physically. v) The next principle is the universality principle.15 This implies the right to criminal jurisdiction over certain acts that are hazardous to the international human community as a whole.16 These acts are piracy, human trafficking, crimes against humanity, genocide, grave breaches of the law of armed conflict, hijacking, and terrorism. However, states may have serious misgivings about the application of their jurisdiction over certain criminals and they may be correct on this account. The principle of universality is therefore highly controversial in different jurisdictions. This is what Antonio Cassese calls international versus national jurisdiction.17 It means that both principles, i.e., the primacy and the complementarity principles, can be in serious contradiction with the principles of territoriality, nationality, passive personality, or universality.18 Accordingly, there is no international customary norm establishing an alternative solution to the question of concurrent jurisdiction arising between two or several states and the ICC.19 Likewise, treaty rules have also not been helpful.20

3. Habeas Corpus Islamic criminal justice stresses the ideal that “when you judge between men, judge with justice.”21 This ideal particularly protects the principle of the writ of habeas corpus. It is stated, ‘The idea that Islam contains legal dispensations amounting to habeas corpus and constitutionalism-distinct from western constructs-has not however, received a similar scrutiny. .. the articulation of legal rights in orthodox Islam is not only congruent with much of the internationally recognised norms, but also independent in so 15

Id. pp.307-8; Schaack / Slye, note 12, pp.53-5. For different concepts of universal jurisdiction under the legislation of a considerable number of states see Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford: Oxford university Press, 2005). 17 Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2ed, ed, 2008), p.336. 18 Id. pp.336-8. 19 Id. 339. 20 Id. 21 The Q, 4:58. 16

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far as it relies primarily on the legal sources of Islam for its derivation and credibility.’22 The Universal Islamic Declaration of Human Rights, adopted by the Islamic Council of Europe, provides this significant habeas corpus principle in Article IV of the Declaration relating to the right to justice: a) Every person has the right to be treated in accordance with the Law, and only in accordance with the Law. b) Every person has not only the right but also the obligation to protest against injustice; to recourse to remedies provided by the Law in respect of any unwarranted personal injury or loss; to self-defence against any charges that are preferred against him and to obtain fair adjudication before an independent judicial tribunal in any dispute with public authorities or any other person. c) It is the right and duty of every person to defend the rights of any other person and the community in general (Hisbah). d) No person shall be discriminated against while seeking to defend private and public rights. e) It is the right and duty of every Muslim to refuse to obey any command 23 which is contrary to the Law, no matter by whom it may be issued.

The function of this principle of habeas corpus is to grant full guarantee to the accused and his or her relatives. It facilitates the release of the accused from an arbitrary criminal decision, which goes against the spirit of Shariah. It establishes the right to petition in that an individual or a group of individuals may ask the authorities to prevent an unlawful verdict against the convicted person. In addition, a judge or prosecutor has the duty to protect the spirit of the principle and allow an acquittal on the grounds of error of fact, procedure, or law.

22 Hasnet Lais, Islamic Law and Human Rights: An analysis of the right to fair trial and due process (pt.1) (Research Gate, 2012), available at http://www.newcivil isation.com/home/ideas-philosophy/islamic-law-and-human-rights-an-analysis-of-theright-to-fair-trial-and-due-process-pt-1/, (visited on 19 September 2017); see also Mashood Baderin, A., ‘A Comparative Analysis of the Right to a Fair Trial and due Process under International Human Rights Law and Saudi Arabian Domestic Law’, 10 (3) The International Journal of Human Rights (2006), at https://www. researchgate.net/publication/233279835_A_comparative_analysis_of_the_right_to_a _fair_trial_and_due_process_under_international_human_rights_law_and_Saudi_Ar abian_domestic_law (visited on 19 September 2017). 23 Universal Islamic Declaration of Human Rights, adopted by the Islamic Council of Europe on 19 September 1981/21 Dhul Qaidah 1401.

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4. Knowledge of Jurisdiction A court has to base its judgment on a reliable code that is already known to the judges.24 They must know the law essential for the assessment of the case.25 The Quran instructs, “You may judge between people according to the complete Code and knowledge of justice.” Accordingly, the judges of Islamic courts or Islamic civilizations encompassed by the Islamic codes, whenever they investigate a case that is not based on Islamic criminal law, should have a basic knowledge of and experience in the relevant jurisdiction. The intention is that Islamic criminal justice should not function against the scales of justice in the delivery of its judgement.26 In the early Islamic courts, a non-Muslim accused could choose at his discretion between the administrations of two different courts in order to be prosecuted by a reliable code.27 For example, according to Iman Abu Hanifah: if a Muslim, with the intention of causing death, causes the death of a nonMuslim, he shall be punished with Qisas i.e. death. He bases his views on a hadith in which the Prophet (pbuh) ordered the execution of a Muslim who had intentionally caused the death of a non-Muslim and said, ‘I am responsible for the redress of a non-Muslim resident of the Islamic state (dhimmi)’. He further argues that the hadith relied upon by imam Malik and Iman Shafii is about such non-Muslims who are at war with the Muslims and have no contractual obligations and guarantees. Moreover the Quran says, ‘life for life ’, which includes the murder of a non-Muslim by a Muslim. The difference of the jurists is due to the varied derivations from the Shariah texts and the more correct derivation is the one, which declares Muslims, and non-Muslims equal, for it is harmony with the generality of the Shariah texts and is in accord with the principle of equality for the two individuals guilty of the same offence.28

The above argument and interpretation mean, in reality, the internationalisation of Islamic law or the concept of an Islamic international

24

Mashood A. Baderin, International Human Rights and Islamic Law (New York, NY: Oxford University Press, 2005), pp.78-9. 25 Id. pp.6-7. 26 Mashood A. Baderin, International Human Rights Law and Islamic Law (Oxford University Press, 2005), pp.78-80. 27 Id. pp.106-7. 28 Anwarullah, The Criminal Law of Islam (Islamabad: SharƯah Academy, 2004), p.93.

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criminal court.29 In other words, an Islamic international criminal court has long been established within the inner structure of Islamic theory.30 What is meant by Islamic internationalisation does not necessarily mean prosecution but a law/theory/practice that has to respect the concept of legal relations between other nations.31 It also means application of the principle of complementarity. The ICC or an Islamic international criminal court cannot exercise its jurisdiction where the state in question can bring the accused under its jurisdiction or where such person has been arrested under an Islamic jurisdiction or where s/he has also committed crimes under an Islamic jurisdiction. All these scenarios establish the right for the relevant state to prosecute the suspected person. In turn, this means that an international criminal courts may only exercise its jurisdiction if the state in question fails to do so. In our case, the Islamic international criminal court would fulfil the same functions if the member states are unwilling or unable to bring perpetrators of international crimes to justice. Islamic or international criminal justice should be the fruit of national and international cultural morality, cooperation, assistance, reciprocity, mutual and multilateral tolerance, political necessity, and, not least, the inspiration of acts of fairness, reparation, and rehabilitation. When we talk about the principles of an international criminal court, or the principles of an Islamic international criminal court, we do not necessarily mean the judgments that may be delivered by the courts but rather the way in which we can see the growing development of international justice.32 In fact, the system of Islamic law has many principles of human rights law.33 They all

29

Khaled Abou El Fadl,, “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries,” Islamic Law and Society 1,2 (August 1994):141-187. 30 But consult also Shahram, Akbarzadeh, Islam and Globalization: Critical Concepts in Islamic Studies (London: Routledge Press, 2006); Abdullahi Ahmed, An-Na'im, Muslims and Global Justice (US: University of Pennsylvania Press, 2011); Abdullahi An-Na’im, ‘Philosophy on Islam and Human Rights’, in Mashood A. Baderin, editor, Islam and Human Rights: Selected Essays of Abdullahi An-Na’im (Farnham: Ashgate, 2010). 31 Baderin, note 26, pp.13-5; See also, Mainul Ahsan Khan, Human Rights in the Muslim World: Fundamentalism, Constitutionalism and International Politics (Durham, NC: Carolina Academic Press, 2003). 32 For a philosophical analysis of international justice consult Steven Luper-Foy, Problems of International Justice (Boulder and London: Westview Press, 1988). 33 Baderin, note 25, pp.10-15.

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imply respect for many fundamental principles and their integration into a new court.34 International criminal justice is therefore not just the phenomenon of criminal jurisdiction. The term denotes its own means of recognising what is right and what is wrong between different nations and their cultures or recognising misunderstanding of the law, mistreatment of the law, and misapplication of the law.35 This can be Islamic criminal law or the system of international criminal justice within the structure of the ICC. That is why we refer to the general principles of law and their effects in the system of international criminal law. The rights secured by the principles of criminal law should obviously not be subject to the political power of any state or authority. However, this happens. It can be seen in the Islamic system of jurisdiction and in the Chinese, American, Russian, and many Latin American courts. Nevertheless, such intervention in the European courts is one of hidden policies. It is the same in the ICJ. As a recognised principle of justice, criminal rules should be applied to all violations equally, whether the offender is a common or a prominent civilian; but the question is whether this principle is respected or not. The philosophy behind all these considerations is to put an end to the principle of non-impunity.

5. Theory of Actus Reus The language of any statute, the terms of any legislation, any question of statutory interpretation of the Quranic codes, or any other relevant matter

34

Id. pp.14-5. Consult Abtahi Hirad and Gideon Boas (eds.), The Dynamics of International Criminal Justice Ǧ Essays in Honour of Sir Richard May (2005); John E Ackerman and Eugène O’Sullivan, Practice and Procedure of the International Criminal Tribunal for the Former Yugoslavia with selected material from the International Criminal Tribunal for Rwanda (2000); Michael Akehurst, Jurisdiction in International Law, 1972-1973 BYIL 145; Allmand Warren, ‘The International Criminal Court and the Human Rights Revolution’, 46 (1) McGill Law Journal (2000); Ambion Bienvenido C, ‘Organization of a Court of International Criminal Jurisdiction’, 29 Philippine Law Journal 345 (1954); Amann D.M. and M.N.S. Sellers, ‘The United States of America and the International Criminal Court’, American Journal of Comparative Law 381-404 (2002); Kofi Annan, ‘Advocating for an International Criminal Court’, 21 Fordham International Law Journal 363 (1997); J. Holmes Armstead, ‘The International Criminal Court: History, Development and Status’, 38 Santa Clara Law Review 745-835 (1998). 35

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of criminal procedure are the starting points when identifying an offence.36 The growing development of the terms “intentionally,” “wilfully,” “knowingly,” “recklessly,” or “maliciously,” denoting mens rea, can actually be found in the legal literature on the criminal law of most nations.37 The more popular term is ‘the guilty mind.’ Then there is ‘the guilty act,’ which has to be proven beyond any reasonable doubt. The term ‘guilty act’ is also known as actus reus and constitutes another essential aspect of criminal responsibility. It is believed that ‘mens rea by itself is not enough to constitute a crime: there must also be an act actus reus. Even in the case of attempts to commit crimes where the criminal intent is the dominant factor, the prosecution must prove the commission of an actus reus sufficient to amount to an attempt.’38 Actus reus encompasses the wrongful omission or wrongful conduct that manifests the physical elements of a crime. In the machinery of criminal proceedings, whether under Islamic criminal law or any inquisitorial or adversarial criminal system, criminal statutes typically require proof of two core legal elements in order to find a given act criminal. These are actus reus and mens rea on the part of a defendant. They are required to establish criminal responsibility. The Trial Chamber in the Kordic and Cerkez case sheds light on the relationship between a guilty mind and a guilty act as a mode of individual criminal liability:39 Article 7(1) is concerned with persons directly responsible for planning, instigating, ordering, committing, or aiding and abetting in the planning, preparation or execution of a crime. Thus, both the individual who himself carries out the unlawful conduct and his superior who is involved in the conduct not by physical participation, but for example by ordering or instigating it, are covered by Article 7(1). For instance, a superior who orders the killing of a civilian may be held responsible under Article 7(1), as might a political leader who plans that certain civilians or groups of 36

See the Statutes of the permanent International Criminal Court, the International Criminal Tribunal for Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone. See also the Holly Quran, criminal codes. 37 For different aspects, examine Mohamed Elewa Badar, The Concept of Mens Rea (Hart Publishing, 2013). 38 P. J. Fitzgerald, ‘Voluntary and Involuntary Acts’, in A.G. Guest (Ed.), Oxford Essays in Jurisprudence (Oxford; Oxford University Press, 1961), pp.1-28, at 1. 39 Consult Giulia Bigi, ‘Joint Criminal Enterprise in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the Prosecution of Senior Political and Military Leaders: The Krajišnik Case’ 14 Max Planck United Nations Yearbook (2010), pp.51-83, in particular p.54 and 75-170.

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civilians should be executed, and passes these instructions on to a military commander.

The Chamber continues and clarifies: The criminal responsibility of such superiors, either military or civilian, in these circumstances is personal or direct, as a result of their direct link to the physical commission of the crime. The criminal responsibility of a superior for such positive acts, except where the superior orders the crime in which case he may be more appropriately referred to as primarily responsible for its commission, may be regarded as ‘follow(ing) from general principles of accomplice liability.40

All the terms in the above paragraphs refer to the offender’s state of mind and her/his connection to the offence.41 Still, these terms may not give a clear picture of the offence as long as a court has not actually taken a case into consideration.42 The reason is that contradictions may arise from the syntax of the drafting of the law.43 Islamic criminal law establishes mens rea by the terms ‘qasd’ or intent, ‘ilm’ or knowingly, and ‘qudra’ or the ability to commit such a crime, terms not necessarily mentioned in other legal systems.44 Also, the concept of mens rea is not enforceable in cases involving minors or the mentally insane for lack of proper intention.45 Further, in Islamic criminal law, coercion may be considered a defence in criminal proceedings. The concept of shubaha or the notion of uncertainty may also be considered a legal defence. The presumed ignorance of the unlawfulness of an act may be considered a legal defence relating to murder or hudud offences. Indeed, Islamic criminal law lays down clear provisions for self-defence: One of the conditions for the validity of the exercise of the right of defence is to act in defence with a force commensurate with the indispensable need. If the force used exceeds the limit of need, it ceases to be defence and gains the status if transgression itself. If a lesser force can deter the attack of the aggressor, it should be used and not more than that because the main aim of the action against the aggressor is defence. Thus, if the attack of the aggressor can be repelled with the use of stick, it would be needless to 40

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 367. Id. pp.1-3. 42 Id. pp.10-12. 43 Id. 31-33. 44 Id. pp.98-201. 45 Abdul Rahman Abdul Muin, Witnesses in Islamic Law of Evidence (Pelanduk Publication: Selangor, 1999) 56. 41

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Chapter Two repel it with the use of anything made of iron. Similarly, when the aggressor receives a grievous injury at the hands of the defender and is not able to proceed with his wrongful act, it would not be allowed to subject him to further violence, because the transgression committed by him is done away with. Any possible measure in the defence may be taken up in the event of wilful attempt on one’s life or an attack on one’s family or property. If defence is possible by raising a hue and cry in order to call people for help, such a mode of defence should preferably be adopted instead of using force. However, if no help is forthcoming and the attack can be repelled by the use of hands, then it is lawful to use one’s hands. The defender is not allowed to be the first to act with the intention of killing or wounding the aggressor, unless he is sure that defensive action against him is not possible without doing so and that the use of such a force in defence is indispensible. The defender should adopt the method which he is inclined to think for cogent reasons requires the least force irrespective of the severity of the attack of the attacker.46

These issues also exist within the direct interpretation of the criminal codes of the Quran. Scholars may not be of the same view and may therefore interpret criminal codes differently. It is the same in the common law system. When an offence consists of more than one element, the question is whether the expressed state of mind concerns all elements or is solely governed by one element. This is what ultimately makes the attribution stage of punishment very difficult in the common law legal system. In particular, criminal courts may have difficulties in identifying the offender if several persons committed the crime collectively or jointly. Such a scenario makes the definition, interpretation, application, and the degree of gravity of mens rea more difficult to identify. In the R. v. Tolsen case dealt with under the common law system, the concept of mens rea is defined as: The guilty intent is not necessarily that of intending the very act or thing done and prohibited by common or statue law, but it must at least be the intention to do something wrong. That intention may belong to one or other two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may co-exist with respect to the same deed. There are many things prohibited by no statute –fornication or seduction, for instance – which nevertheless no one would hesitate to call

46

Anwarullah, The Criminal Law of Islam (Islamabad: SharƯah Academy, 2004), p.73.

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wrong; and the intention to do an act wrong in this sense at least must a general rule exist before the act done can be considered a crime.47

There are two types of legal methods in any system of justice, which are exercised by most legal systems.48 We know them by the terms “inquisitorial” and “adversarial,” thus delivering the most prevailing methods of jurisdiction in the world. They constitute the two core methods of justice. One may even mention a third method of adjudication, i.e., a jurisdiction that contains the essence of both disciplines: “inquisitorial” and “adversarial,” which is known as the hybrid form. The third form is exercised by a number of states but they do not call their jurisdiction mixed in practice. For example, Iranian criminal law follows both methods of jurisdictions on a case-by-case basis. This is also true for Sweden’s civil law system, which advocates a jurisdiction based solely on inquisitorial procedures.49 The fourth concept of jurisdiction is the international 47

(188 23 Q.B.D. 168, at 172. (the judgments of Wills J. quoted in Finbarr McAuley and J Pail McCutcheon, Criminal Liability (Round Hall Sweet and Maxwell, 2000), p.278. 48 For the concept of justice, see Immanuel Kant, Religion within the Limits of Bare Reason (1795), p. 87. Launched by Jonathan Bennett, available at http://www.earlymoderntexts.com/pdfs/kant1795part4.pdf (Accessed 7 October, 2015); Alf Ross, On Law and Justice (London: Stevens & Sons Limited, 1958); Vagn Greve, ‘Sheep or Wolves’ 4 European Journal of Crime, Criminal Law and Criminal Justice (2005), 515-552; Kelsen Hans, ‘What is Justice?’ Justice, Law and Politics in the Mirror of Science (1957); Farhad Malekian, ‘Emasculating the Philosophy of International Criminal Justice in the Iraqi Special Tribunal’, 58(5) Cornell International Law Journal (2005); Farhad Malekian, ‘Mutilating the Philosophy of Justice in the Time of Armed Conflicts’, Contemporary Journal of International Criminal Law (2007); Farhad Malekian, The Concept of Islamic International Criminal Law, A Comparative Study (1994); Farhad Malekian, ‘The Functions of International Criminal Law and the Problem of Positivism and Neutralism Philosophy’, Contemporary Journal of International Criminal Law (2007); Farhad Malekian, The Miserable Wedding of Naturalism into Positivism, 2 ID EST Journal (2009). 49 The Swedish criminal legal system has four interrelated processes. These are the preliminary investigation, the prosecution, the main hearing, and the decisionmaking. “Similar to the American and English criminal justice systems and unlike other civil law systems, the Swedish system treats the investigatory stage of criminal proceedings as inquisitorial but the trial stage as more adversarial. However, the Swedish criminal trial process is not completely analogous to an adversarial model as the court/judge plays a much more active and direct role in the case in Swedish criminal proceedings. For example, at the trial stage, a judge will often actively question witnesses and may even request parties to submit additional evidence.” Bernard Michael Ortwein II, ‘The Swedish Legal System:

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concept of hybrid or adquisitorial jurisdiction. The international criminal courts, international criminal tribunals, and the ICC also employ adquisitorial adjudication.

6. Beyond any Reasonable Doubt While it is true that the legal systems are known for the application of one of these legal disciplines according to the above sub-section, it is an established fact that inquisitorial and adversarial principles are also interwoven with the accusatorial approach. In other words, the inquisitorial and adversarial principles are both required to tag along with the content of the accusatorial principle, which has to be respected by all national legal systems. This is based on the fact that the principle of guilt must be proven beyond any reasonable doubt and constitutes one of the basic principles of justice, human rights law, and also an integral part of jus cogens norms. The cardinal and significant rule of the law of evidence that protects a defendant in a national, regional, and international trial, regardless of the degree, level, and gravity of the offence, is that the defendant must be presumed innocent of the crime for which he has been brought before the court at all times until her/his guilt is proven. The defendant’s guilt must first be proven beyond any reasonable doubt. In Islamic criminal law, the term “beyond any reasonable doubt” means a clear investigation of the entire body of evidence and includes the inability to prove anything contrary to the outcome of the decision. This implies certainty about the guilt of the accused. Islamic law is particularly sensitive to this rule, and a judge who applies sanctions without sufficient evidence has surely violated the basic ethic of justice and is responsible not only before Islamic law but also before the court of conscience and, ultimately, before divine jurisprudence. The Prophet of Islam announces “Stay clear of oppression, for oppression is darkness on the Day of Judgment.”50 This rule should also be the practice of contemporary Islamic nations, even though the relevant Islamic legal authorities may not, for one reason

Introduction’, 13 IND. INT'L & COMP. L. REv, pp.405-45, at 428-29. Available at file:///C:/Users/oscar/AppData/Local/Temp/17766-25028-1-PB.pdf (visited on 12 June 2017). 50 Mishkat al-Masabih, Vol. 1, p. 586. Quoted in C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (New York: St. Martin’s Press), p. 116

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or another, practically appreciate it.51 However, it is a fact that the rule guilt must be proven beyond any reasonable doubt is deeply rooted within the inner structure of Islamic law. A person whose guilt is not proven beyond any reasonable doubt should never be convicted and sentenced to a punishment. First and foremost, this means God does not permit it. Second, any unlawful application of punishment means going against the offspring or Al-nasab. Third, a judge’s action may be more violative if he imposes a penalty against a person who is a juvenile and has not reached the age of bulugh. This implies the age of criminal responsibility. According to Islamic jurisdiction, a judge who imposes the death penalty or other forms of unlawful punishment on an innocent person may be required to pay diyah. This indicates financial compensation to the victim’s family or, in the machinery of criminal jurisprudence, it means compensating for the violated interests of the community. In Western society, a judge is also responsible for the application of wrongful penalties. This is a rule that applies not only in common law systems but also in civil law systems. I am referring here to the adversarial and inquisitorial systems. The formation, adoption, and establishment of the Statute of the permanent International Criminal Court are sufficient evidence that the above three disciplines í namely adversarial, inquisitorial, and adquisitorial í are the policy of the Court, as a result of prolonged negotiations and meetings between various states around the world. The use of all three methods mentioned above may also be observed in the practice of ad hoc international criminal courts such as the ICTY, the ICTR, and the SCSL.52 51 For the concept of Islamic jurisdiction and Islamic criminal jurisdiction, see, M Abdel Haleem (ed.), Criminal Justice in Islam: Judicial Procedure in the SharƯah (2000); Abdelkader, Deina, Social Justice in Islam (Herndon, VA: IIIT, 2000); Mohamed Elewa Badar, Islamic Criminal Justice in the 21st Century, International Criminal Law Review, Vol. 9, Number 4, 2009, pp. 591-595; M. Cherif Bassiouni, The Islamic Criminal Justice System (London: Oceana Publications, 1982); M. Cherif Bassiouni, Protection of Diplomats under Islamic Law, 74 American Journal of International Law (1980), pp. 609-655;, M. Cherif Bassiouni, Islam: Concept, Law and Word Habeas Corpus, 2 Rutgers Camden Law Journal (1970); M. Cherif Bassiouni, Sources of Islamic Law, and the Protection of Human Rights in the Islamic Criminal Justice System, see Bassiouni, pp. 5-55;, M. Cherif Bassiouni, Studies in Early Hadith Literature (Indianapolis, 1978); Richard Bell, Introduction to the Quran, (Edinburgh University Press, 1955). 52 The concept of an international criminal law has long been discussed in the international legal and political community. See Vespasian V. Pella, Plan d’un Code Répressif Mondial, 6 Rewe International de Droit Pénal 1948 (1955); United Nations War Crimes Commission, History of the United Nations War Commission

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The courts have used these three methods in the application of international criminal norms and the accusation, indictment, charges, prosecution, condemnation, and punishment of international crimes. They have also been useful in the release or reprieve of the accused. The SCSL has a hybrid character, implying an adquisitorial international jurisdiction.53 All international criminal courts or tribunals were created in harmony with the resolutions of the Security Council of the United Nations for the prosecution and punishment of violators of international crimes. Their core intention is to prevent impunity and to see whether the accusations of violations against international criminal law principles are properly justified.

7. Adaptation of an Islamic Criminal Court Islamic law does not prevent the establishment of a hybrid/adquisitorial criminal jurisdiction. Nor does it prevent the application of foreign laws. A and the Development of the Laws of War. 445-450 (1949); Vespasian V. Pella, Towards an International Criminal Court, 44 American Journal of International Law 57 (1950); Sowilet A, The Problem of the Creation of a Permanent International Criminal Court (1951); Yeun-Li Liang, ‘The Establishment of an International Criminal Jurisdiction: The First Phase’, 46 American Journal of International Law (1952); Quincy Wright, Proposal for an International Criminal Court, 46 American Journal of International Law 60 (1952); Bienvenido C. Ambion, ‘Organization of a Court of International Criminal Jurisdiction’, 29 Philippine Law Journal 545 (1954); Fannie Klein & Daniel Wilkes, ‘United Nations Draft Statute for an International Criminal Court: An American Evaluation’, in International Criminal Law 526 (Gerhard O.W. Mueller & Edward M. Wise, eds, 1965); Stone Julius and Robert Woetzel, Toward a Feasible International Criminal Court (1970). 53 Jean Dautricourt, ‘The Concept of International Criminal Court Jurisdiction í Definition and Limitations of the Subject’, in vol.I, A Treatise on International Criminal Law 656 (M.C. Bassiouni & V.P. Nanda, eds, 1975); ‘La Création d’une Juridiction Pénale Internationale et la Coopération Internationale en Matière Pénale’, 45 Revue Internationale de Droit Penale 455 (1974); Louis KosRabcewicz-Zubrowski, ‘The Creation of an International Criminal Court’, in International Terrorism and Political Crimes 519 (M. Cherif Bassiouni, ed, 1975); Ferencz Benjamin, International Criminal Court (2 vols. 1980); M. Cherif Bassiouni & Daniel Derby, ‘Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant Instruments’, 7 Hofstra Law Review 525 (1981); Benjamin N. Schiff, Building the International Criminal Court (Cambridge; Cambridge University Press, 2008); William A. Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 2011).

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proper Islamic law and an authentic interpretation should permit foreigners to demand the application of their own criminal law in the relevant Islamic state. This concept is an established principle in Islamic legal jurisdiction. It is a manifestation of very high respect for other legal disciplines in the true theory of Islamic law. It is what I call the internationalisation of an Islamic court or the concept of an Islamic international criminal court. An Islamic state is obliged to accept a foreign law, but only professional Islamic judges should apply it. In fact, in the initial state of Islamic nations or societies, the rights of other nationalities were highly recognized: ...this closed society was like the filigree work characteristic of Islamic decorative art: it was full of minute holes, cracks and apertures, through which alien influences could find an entry. It was possible in Islamic states for Jew and Christians to rise high, sometimes right to the top, in the service of the government or the financial administration … they and their religious congregations enjoyed definite rights secured to them by treaty.54

The most significant theory of Islamic criminal jurisprudence encourages justice to be the presentation of fair principles, even where a foreigner is not a Muslim.55 Generally speaking, the machinery of justice should not be monopolised by the judges or authorities of the states. However, I am referring here to just Islamic theory and not to unjust Islamic theories, interpretations, deductions, or any individual opinions based on personal and family interests. Monopolisations of Islamic theories are not only applied in some Islamic states by certain leaders of countries for their own benefit but also by states that practice old Islamic principles with wrong interpretations. We should remember that Islamic law is more than a penal law; it is a forgiving law. This is something that has not been understood by most Islamic states in their practice. A just interpretation of Islamic law provides for judicial rights as an integral part of its legal system. For instance: a) Every person has the right to be treated in accordance with the Law, and only in accordance with the Law. For example, the respect of the following principles is a part of obligations of an Islamic court:

54 F. Heer, The Medieval World: Europe 1100-11550 (Transl. J. Sondheimer), (Mentor Books, 1986), pp. 255-256). 55 Maulana Muhammad Ali, The Call of Islam (2nd ed, Lahore, 1926); Maulvi Muhammad Ali, Islam the Religion of Humanity (1926); Mawlawi, Muhammad Ali, The Religion of Islam (Lahore, 1956).

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Chapter Two b) Every person has not only the right but also the obligation to protest against injustice; to take recourse to remedies provided by the Law in respect of any unwarranted personal injury or loss; to self-defence against any charges that are made against him, and to obtain fair adjudication before an independent judicial tribunal in any dispute with public authorities or any other person. c) It is the right and duty of every person to defend the rights of any other person and the community in general (Hisbah). d) No person shall be discriminated against while seeking to defend private and public rights. e) It is the right and duty of every Muslim to refuse to obey any command which is contrary to the Law, no matter by whom it may be issued.

Thus, the theories of criminal courts, whether Islamic or non-Islamic, are intended to solve the questions of justice with full integrity and not harm the principles of international human rights law of either system. In fact, Islamic theory recognises the theory of Mafasid, meaning harm against the individual or society, and therefore prohibits it. Obviously, each provision of the above principles of justice in Islamic national and international criminal law can also be found within any other system of criminal law, a fact that cannot be denied by any legal system.56 56

On international criminal law, see Georg Schwarzenberger, ‘The Problem of an International Criminal Law,’ 5 Current Legal Problems (1950) 265; Edward M. Wise, ‘Prolegomenon to the Principles of International Criminal Law,’ 16 New York University Law Review (1970) 562; Farhad Malekian, International Criminal Law: The Legal and Critical Analysis of International Crimes (2 vols. 1991); Farhad Malekian, Principles of Islamic International Criminal Law: A Comparative Search (2011); Farhad Malekian, The Monopolization of International Criminal Law in the United Nations: A Jurisprudential Approach (2nd ed., 1995); M. Cherif Bassiouni (ed.), International Criminal Law (5 vols., 1999); Farhad Malekian, International Criminal Responsibility, in M. Cherif Bassiouni (ed.), International Criminal Law, (1999) 155; Michael Bachrach, ‘The Protection and Rights of Victims under International Criminal Law,’ 54(1) The International Lawyer (2000); M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights,’ in Bassiouni (ed.), International Criminal Law, Vol. III, 655-701 (2008); Boas Gideon and William A. Schabas (eds.), International Criminal Law Developments in the Case Law of the ICTY (2005); Yoram Dinstein, ‘International Criminal Law,’ 20 Israel Law Review 206 (1985); Robert A Friedlander, ‘The Foundations of International Criminal Law: A Present-Day Inquiry,’ 15 Case Western Reserve Journal of International Law15 (1985); M. Cherif Bassiouni, Introduction to International Criminal Law (2005); M. Cherif Bassiouni, ‘The Discipline of International Criminal Law,’ in M. Cherif Bassiouni (ed.), International Criminal Law, Vol. 1 (2008) pp. 5-40; M. Cherif Bassiouni, ‘The Subjects of International Criminal Law: Ratione Personae’ in M. Cherif Bassiouni

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It is also a fact that, with the system of criminal justice we are not encouraging the concept of criminality but the concept of reducing criminal behaviour. In other words, while the intention of Western or nonWestern criminal justice is the same, the difference is that they are striving towards the same end and for the same courts but through different channels.57 This is what we are going to discuss here.

(ed.), International Criminal Law, Vol. 1 (2008) pp. 41-70; Robert Cryer, ‘The Doctrinal Foundations of International Criminalization,’ in International Criminal Law, Vol. 1 (M. Cherif Bassiouni, ed, 2008) pp. 107-128.Vespasian V. Pella, Plan for World Criminal Code, 17 Revue Internationale de Droit Penal (1946); Vespasian V. Pella, Fonctions Pacificatrices du Droit Pénal Supranational et Fin du Système Traditionnel des Traités de Paix, Le Droit Internationale Public 1 (1947); Edward M. Wise, Prolegomenon to the Principles of International Criminal Law, 16 New York University Law Review 562 (1970); Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 Virginia Journal of International Law (1975); L.C. Green, An International Criminal Code í Now?, 5 Dalhousie Law Journal 560 (1976); Farhad Malekian, Principles of International Criminal Law (2011); Farhad Malekian, International Criminal Responsibility, in International Criminal Law 155 (M. Cherif Bassiouni, ed, 1999); M. Cherif Bassiouni, The Discipline of International Criminal Law, in International Criminal Law, Vol. I (M. Cherif Bassiouni, ed, 2008) pp. 5-40; M. Cherif Bassiouni, The Subjects of International Criminal Law: Ratione Personae, in International Criminal Law, Vol. I (M. Cherif Bassiouni, ed. 2008) pp. 41-70; Robert Cryer, The Doctrinal Foundations of International Criminalization, in International Criminal Law, Vol. I (M. Cherif Bassiouni, ed, 2008) pp. 107-128. 57 See Hans Kelsen, Pure Theory of Law (transl. Maz Knight, 1967); Mario Jori (ed.), Legal Positivism (1992); C Sypnowich, The Concept of Socialist Law (1990); C. Perelman, The Idea of Justice and the Problem of Argument (1965); Douzinas Costas, Peter Goodrich and Yifat Hachamovitch, Politics, Post Modernity and Critical Legal Studies (1994); David Sugarman, (ed.), Legality, Ideology and the State (1985); James D.A. Boyle (ed.), Critical Legal Studies (1992); Peter Goodrich, Languages of Law (1990); D. Kennedy, Law and Ideology 5 Tikkun (1988); R. Unger, The Critical Legal Studies Movement, 96 Harvard Law Review 561 (1985); J. Derrida, Force of Law: Mystical Foundation of Authority, 11 Cardozo Law Review 919 (1990); James Boyle, Is Subjectivity Possible? The Postmodern Subject in Legal Theory, 62 University of Colorado Law Review 489 (1991); P. Fitzpatrick ( ed.), Dangerous Supplements: Resistance and Renewal in Jurisprudence (1991); S. Fuller, Playing Without a Full Deck: Scientific Realism and the Cognitive Limits of Legal Theory, 97 Yale Law Journal 549 (1988); Alasdair MacIntyre, After Virtue: A Study in Moral Theory, (1982); Dennis Patterson (ed.), Postmodernism and Law (1994).

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8. Shariah Adquisitorial System The adquisitorial system, as we will see later, constitutes a method of criminal procedure based on both the inquisitorial and the adversarial system. The term “adquisitorial” was recently coined. It refers to the “Fusion between the Adversarial and Inquisitorial Roles of a judge and how it is operated in the International Criminal Court.” ͷͺ It is believed that: Adquisitorial is a concept that embodies the actuality of a fusion of two legal systems in order to achieve sustainable justice through the merging of best practices from the adversarial and inquisitorial methods of criminal procedure. There are some national courts and even international bodies such as the ICC that have started operating the adquisitorial method. Ample examples can be found in the South African Laws and in the Rome Statute of the International Criminal Court. It had been noted that the procedure used by ICC shows the characteristics of the Common Law System or Adversarial System and the Civil Law System or Inquisitorial System in a mixed mode.59

In the early stages of its development, justice was not necessarily administered in a particular office, by recording cases and distinguishing which methods of jurisdiction are applied. In practice, however, this changed over time, and today it is one of the principles of Islamic jurisdiction that the existence of the administration of justice is essential for the proper application of rules and principles. Likewise, early Islamic law neither provided for separate roles nor did it have different organs, such as an adversarial attorney, a judge, and a jury. The old Islamic procedural law is therefore similar to that of many other countries at the time. Similarly, the Quranic commandments to do justice are confined to general guidelines and no details are provided regarding the duties of the judge or the manner in which testimony should be given. On the Principles of government, such as consultation, equality and the rights of the citizens, the Quran does not provide any details. The general principles are laid

58 Kafayat Motilewa Quadri, Hunud Abia Kadaouf, Mohammad Naqib Ishan Jan, Mohd. Iqbal AbdulWahab and Haniff Ahama, ‘Adquisitorial: The Mixing of Two Legal Systems’ 3 (1) International Journal of Humanities and Management Sciences (2015), pp.31-36, at 35. 59 Id. at 31.

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down, and it is for the community, the ulema and leaders to organise their government in the light of changing conditions of society.60

Comparatively, one may assert that Islamic criminal procedural rules make use of both procedural methods, i.e., inquisitorial and adversarial. However, one may also conclude that the inquisitorial process is more prevalent than the adversarial one. This is due to the fact that, traditionally, there was no clear distinction between the judge and the investigator. Besides, the defence attorney’s role does not rely on adversarial procedure with a wide range of power. In other words, the judge has a more active role. Therefore, matters such as safeguarding against improper incrimination, presenting favourable evidence, and supervising the criminal judgments are for the most part the duties of the judge. At the same time, certain other matters in Islamic criminal procedures imply an adversarial method. The right to remain silent, the right to confront accusers, and the principle of presumption of innocence are mainly indicators of adversarial principles.61 All these procedural approaches must, however, be based on the principle of goodness. “Good” in Islamic law is “every work or measure, habits and behaviour which benefit the individual or the society or prevent tyranny, injustice, excess and exaggeration and instead promote peace prosperity and other interests (of the people).”62 The intention of divine law is essentially to help human beings to eliminate crime, develop humanity, and cultivate good. God wants to make things clear for you and to guide you to the ways of those before you and to forgive you. God is the All-knowing, the Wise. God wants to forgive you and wants those who follow their desires to turn wholeheartedly towards (what is right). God wants to lighten your burdens, and He has created man weak.63

In fact, it is the fard al-ayn or the compulsory duty of a Muslim to practise good conduct in any legal system, be it inquisitorial, adversarial, or 60

Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: Islamic Society, 1991), pp. 50-51. 61 Consult also Rahmdel Mansour, ’New Developments in the Iranian Code of Criminal Procedure of 2014’, 127 (3) ZSTW (2015), pp. 788-82, at 788. 62 Al Dastur-ul-Quran, quoted in Mohad Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), p.74. 63 Q, 4:26-28.

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adquisitorial. This theory is also reflected in the interpretation of figh and the nature of the principle of fatwa or that any opinion stated by an Islamic jurist or fugaha64 should also be based on good interpretation. The purpose of good is to remove injustice and the propensity to evil in the nature of man. Thus, there are actually no particular rules that compel the Qadi to implement the principle of inquisitorial, adversarial, or adquisitorial justice. The most significant principles of justice are the principles of true judgment, love, and forgiveness. One should not act against natural law and the natural rights of man. In short, it includes all commissions or omissions, which exclude injustice, excesses, and evils that work against the interest of the people and includes all those actions, which ensures benefit, comfort and welfare of the members of a society. It is erroneous to maintain that it covers only adoration, fasting, pilgrimage, and Zakat. In fact it represents the doing of all such acts which benefit the individual or the society or indirectly.65

Any act against good or any serious violation of the rights of man may create rights for national or international societies to bring the perpetrator of the criminal act before national or international criminal jurisdiction. In short, Islamic criminal law or Islamic procedural criminal law constitutes an adquisitorial system consisting of adversarial and inquisitorial elements.66 The basic principles of Islamic law are not the result of codification by man but a type of religious practice based originally on Shariah, which means divine command and revelation.67 However, one should not mistake Shariah as the entire philosophy of Islam and one should not mistake Islamic law for Shariah.

9. Rendering Justice In the early traditions of Islamic criminal procedure, judges classified suspects into different categories. These were i) the accused belongs to the pious and righteous group; ii) the name and behaviour of the accused is among the violator group; iii) the true personality of the accused is unknown, which means that s/he could not come under any of the first two 64

The word fugaha is the plural of faqih. Amini, note 62, p.74. 66 Lasse A, Warberg, SharƯah: ’Om den Islamiske Strafferetten (Uqûbât)’, 80 (4) Nordisk Tidsskrift for Kriminalvidenskab (1995), pp. 260-285. 67 Abdur Rahman I. Doi, SharƯah: the Islamic Law (Kuala Lumpur: A.S. Noordeen, 1984). 65

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categories. This categorisation is similar to the system in most European nations at the time using adversarial and inquisitorial methods, based on the fact that the criminal background of an accused/recidivist creates a much more sensitive position than that of a person who is not accused at all or a person who is from a royal family. Although any accused should be safe according to the presumption of innocence principle, the reality is that many other factors play a definite role in criminal procedure. The new practice of Islamic procedure does not follow the above-described old tradition, but relies on the same methods as European criminal procedures í among them, the presumption of innocence principle.68 However, a suspect’s criminal record plays a definite role in the process of rendering justice and finding the truth. In most legal systems í whether Islamic, European, and even American, Australian, Chinese, and those of most states í one may say that the first category enjoys more flexible rights than the latter category, i.e., those with a criminal record. This stems from the assumption that a person who is pious, royal, and righteous is more deserving of the benefit of the doubt. While the idea is not rational, in practice, individuals categorized as having a criminal record come under suspicion much more easily than those in the other categories. Some Islamic states, such as Iran, Saudi Arabia, and Sudan, which base their entire philosophy of justice solely on Islamic rules, seriously violate the rights of the accused in all categories. As a result, these states are responsible for violations of customary or conventional international rules regarding the protection of accused persons.69 In particular, many Islamic states seriously violate the core principles of Islamic human rights law. These violations are also violations of a considerable number of provisions of the 1966 International Covenant on Civil and Political Rights. In other words, these are violations under both laws because a proper interpretation of most Islamic rules for the protection of individuals overlaps with the core principles of the Covenant. I have based this conclusion on the theories of this book and the theories presented in Chapter One. These are some of the articles of the Covenant violated by most Islamic states:

68

Mashood A. Baderin, International Human Rights Law and Islamic Law (Oxford University Press, 2005), pp.106-7. 69 Consult Noah Feldman, The Fall and Rise of the Islamic State (Oxford: Princeton University Press, 2008).

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Chapter Two Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

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Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

It is patently obvious that there is a key connection between international human rights law and the provisions of criminal law and international criminal law, including international criminal justice. This is the same in Islamic human rights law, Islamic international criminal law, Islamic international criminal justice, and Islamic humanitarian law if, and only if, it is properly understood by the leaders of the Islamic nations. It is also self-evident that Islamic law and Islamic theory reject any concept of leader or leadership. It is a transgression and a serious insult to the entire theory of Islam to speak about leaders or leadership. Any concept of leadership is null and void. This has not and will not, however, be accepted due to love for power. These transgressions also affect the most significant principles of the Universal Declaration of Human Rights that are an integral part of customary international law and the international law of jus cogens and should also be considered part of the general principles of law.70 They are binding on all states, regardless of their internal political and legal

70

Id. 108-9.

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positions towards all states.71 The Declaration sets out a general framework for all sources of international law.72 There are certain human rights structures that constitute the rule of law and protect individuals and the rights of individuals. Some of the most relevant milestone principles of the Declaration of Human Rights, which are seriously violated by some of the Islamic states or under the authority of their leaders, are the following: Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9 No one shall be subjected to arbitrary arrest, detention or exile. Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11 (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

We should realise that the human rights principles for safeguarding fundamental rights and freedoms are already part of the Islamic law for rendering justice. Islamic criminal law and criminal justice amply emphasise the relationship between Islamic law and Islamic human rights law on four levels. These are the categorisation of crimes, the characterisation of sanctions, the significant corpus of procedure, and the spiritual nature of forgiveness. The fourth element is strongly encouraged by the Islamic theory of justice. The inconsistent nature of the provisions of the Declaration of Human Rights with those of the Islamic criminal law is not based on the legality or morality of Islamic law but instead on the nature of misunderstanding and misuse of legal power. In Islamic law, human rights are developed to the 71 The Declaration was drafted by the representatives of states having different cultural and legal backgrounds from all regions of the globe. The Declaration was proclaimed by the United Nations General Assembly on 10th December 1948 (General Assembly resolution 217 A). 72 See Article 38 of the Statute of the International Court of Justice.

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extent that they prevent offensive human rights law. Violations of other rights under the guise of democracy. In other words, the original theory of Islamic law prohibits those theories of human rights, national law, or any rights that go against the natural rights of man. Regrettably, this is just a theory and not the real practice.

10. Shariah in an International Criminal Court Shariah is the whole theory of Islam. As such, it also incorporates the Islamic criminal code. It should be the theory of justice and not injustice. It should be the theory of forgiveness and not the theory of severity of punishment. It should also be the philosophy of compassion and not of intolerance. It is the theory of enlightenment, modification, and abolition and not the theory of stagnation, fanaticism, and terrorism.73 It may perhaps be noted without straying too far afield from our major focus that ‘Islamic Shariah’ primary sources prohibit the intimidation of individuals. This is illustrated in the severe punishment Shariah provides for the heraba and baghi crimes, and many Islamic Shariah scholars apply its rules, by analogy, to the crime of terrorism. According to the sources of Shariah, the killing of civilians is absolutely prohibited in all its forms and manifestations; within or outside the concept of jihad. There is a consensus among Islamic scholars who belong to the four well-known Islamic schools of jurisprudence that the killing of civilians, especially women and children, is strictly prohibited.’74

73 But see also the views expressed by Christopher A. Ford, Siyar-ization and Its Discontents: International Law and Islam’s Constitutional Crisis ‘ 30 Texas International Law Journal (1995), 499-533. 74 Adel Maged, ‘Arab and Islamic SharƯah Perspectives on the Current System of International Criminal Justice’ International Criminal Law Review 8 (2008) 477– 507, at 489-90. The same writer continues that ‘Islamic and Arab States distinguish between acts of terrorism and the struggles of peoples under colonial and alien domination and racist regimes in order to exercise their right of self-determination and independence. Some states consider this kind of struggle as legitimate and in full accordance with the principles of international law. Islamic countries support a comprehensive international convention that clearly differentiates between terrorism and the right of peoples to self-determination and to combat foreign occupation. 'This approach has been already incorporated in the three Arab/Islamic regional conventions in force. For these reasons, Islamic and Arab States have always maintained the view that to launch a successful anti-terrorism strategy involves addressing the conditions conducive to the spread of terrorism; a point of view that has also been adopted by the international community.’ Id. p.490.

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This is why there is a strong correlation between Islamic law and the fundamental principles of the International Criminal Court. The views of the overall majority of fuqaha or Islamic jurists also indicate this fact. Even the hudud crimes against God should not be punished severely, since the entire theory of God’s approach to the concept of crime is a hypothetical recommendation of the notion and spirit of justice. The concept of hadith or statements of the Prophet Muhammad also suggest all these chief principles: We have sent our Messengers with clear signs and have sent down with them the book and the criterion so that man can establish justice. And we sent down iron of great strength and many benefits for man…75

The theory of Islamic law is based on the interpretation connected with hadith or the way in which the Prophet of Islam deduced the basic source of the law, namely the Quran.76 Shariah includes complete evidence of the code of ethics and contains a considerable number of elements concerning legal jurisprudence. “The principles of the law formed by the Shariah and its structure are to do complete justice in a unanimous was with unified principles. For these reasons there is dichotomy in the law framed under the Shariah methods and ideals provided.”77 The Shariah theory principally encourages the principle of law above all concepts of reasoning by the authorities. This is what the core principles of the International Criminal Court also aim at. Shariah therefore intends to prevent political intervention, political interests, and political decisions in the process of justice. Likewise, in other legal procedures, judges have searched for a superior law, an ideal law, or even natural law, depending on the judicial procedures and the given time.78 75

Q, 57:25. Wael B. Hallaq, A History of Islamic Legal Theories (Cambridge University Press, 1997; Alfred Guillaume, The Traditions of Islam: An Introduction to the Study of the Hadith Literature (Oxford, 1924); Wael B. Hallaq, Model Shurut Works and the Dialectic of Doctrine and Practice, Islamic Law and Society 2,2 (1995): 109-134; Wael B. Hallaq Authority, Continuity and Change in Islamic Law (Cambridge University Press, 2001); Ahmad Zaki Hammad, Islamic Law: Understanding Juristic Differences (Indianapolis: American Trust Publications, 1992). 77 Anwar A. Qadri, Islamic Jurisprudence in the Modern World (Dehli: Taj Printers, 1986), p. 50. 78 For the idea of natural law, see also M.J. Detmold, The Unity of Law And Morality: A Refutation Of Legal Positivism (1984); Natural Law (John Finnis, ed, 1991); Lon Luvios Fuller, The Morality Of Law (2nd ed, 1969); Robert P. George, 76

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The purpose has always been to seek a law beyond all legal disciplines, one to which all legal systems should coordinate their intentions and reasoning. Legal reasoning in court procedures should be so high and authoritative that no one can ignore its power or the influence of its outcome. One may find a similar reasoning within the structure of the International Criminal Court. No intervention on the part of political authorities is permitted. Although Islamic law presents a positivist view, it does not follow the precise legal order of positivists such as John Austin in English jurisprudence or that of Scandinavian realism. According to Austin, no law is beyond the legal power of the sovereign. In other words, legal positivism, without the requirement of moral law, if fully respected, may create harsh situations such as those in the Third Reich in Germany or in the Stalinist legal order. Both powers presented full obedience to the legal order of the sovereign in their fake courts. Although Islamic law is connected to spiritual law or the moral validity of law, it has been abused by the hostile conduct of the authorities most of the time, resulting in violations of the peaceful theory of Shariah law. The systems of international criminal law and international criminal courts are both based on the fundamental principles of human rights law, humanitarian law, and full application of human rights in judicial procedures.79 And true Islamic law solves the problem of higher law by divine law. In principle, no authority is at liberty to depart from any part of this law. It gives full permission to the individual to interpret the law, but its high legal order may not be violated. An individual is thus permitted to interpret the law, whether according to statutory law or according to case law. The individual is, in fact, permitted to express his or her definition of the law. There is thus a supreme law that guides the individual to knowing the final destiny of the law. There is an interconnectedness between true

ed, The Autonomy Of Law: Essays On Legal Positivism (1995); Robert P. George, Natural Law Theory: Contemporary Essays (1994); P.M.S. Hacker and J. Raz, eds, Law, Morality and Society: Essays in Honour of H.L.A. Hart (1977); John Finnis, Natural Law and Natural Rights (1980); John Finnis, Fundamentals of Ethics, (1985); John Finnis, Aquinas: Moral, Political and Legal Theory (1998); Cairns Huntington, ‘Plato’s Theory of Law’, 56 Harvard Law Review 559-587 (1942). 79 Consult Dietrich Schindler, ‘State of War, Belligerency, Armed Conflict’, in 3 The New Humanitarian Law of Armed Conflict, edited by Antonio Cassese (Naples: Editoriale Scientifica, 1979); William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006).

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Islamic criminal justice and the system of international law.80 Both systems of justice rely on inquisitorial and adversarial methods, and both already have the same manner of accusatorial methods of criminal jurisdiction. In other words, their methods of accusation are more or less identical.

11. Philosophers Condemning Wrongful Applications of Islam From the beginning, the chief intention of Shariah was to create justice in a society replete with unjust rules. This was not an easy task. The historian H.G. Wells remarks on the reasons for the development of Islam: Islam prevailed because it was the best social and poetical order the times could offer. It prevailed because everywhere it found politically apathetic peoples robbed, oppressed, bullied, uneducated, and unorganised, and it found selfish and unsound governments out of touch with any people at all. It was the broadest freshest, and cleanest political idea that had yet come into actual activity in the world.81

It is even more interesting to read the views of the French philosopher Jean-Jacques Rousseau, who wrote about the positive social nature of Islam, with full regret that Islamic philosophy had changed its main direction because of misinterpretation of its basic principles by the authorities. According to Rousseau, “Mahomet had very sound opinions, taking care to give unity to his political system, and for as long as the form of his government endured under the caliphs who succeeded him, the government was undivided and, to that extent good.”82 Rousseau goes 80 Consult M, ed Abdel Haleem, Criminal Justice in Islam: Judicial Procedure in the SharƯah (2000); M. Cherif Bassiouni, (ed.), The Islamic Criminal Justice System (London, Rome, New York, Oceana Publications, 1982); Mohamed Elewa Badar, ‘Islamic Criminal Justice in the 21st Century’, International Criminal Law Review, vol. 9, Number 4, 2009, pp.591-593; M. Cherif Bassiouni, Protection of Diplomats under Islamic Law, 74 American Journal of International Law (1980), pp.609-33; Ahmed Hamdy Tawfik, ‘The Concept of Crime in the Afghan Criminal Justice System: The Paradox between Secular, Tradition and Islamic Law: A Viewpoint of an International Practitioner’, International Criminal Law Review, vol. 9, Number 4 (2009), pp.667-687. 81 H.G. Wells, The Outline of History, Being a Plain History of Life and Mankind (London, Cassell, 8th ed, 1925), pp. 615-714. 82 J. J. Rousseau, The Social Contract, transl. M. Cranston, Book IV (Harmondsworth: Penguin, 1968), p. 179.

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even further and confirms the significant notion of Islamic theory and its very valuable social contract by asserting the following: But it is not for every man to make the gods speak, or to gain credence if he pretends to be an interpreter of the divine word. The law-giver’s great soul of the true miracle which must vindicate his mission. Any man can crave tables of stone, or bribe an oracle, claim a secret intercourse with some divinity, train a bird to whisper in his ear, or discover some other vulgar means of imposing himself on the people. A man who can do such things may conceivably bring together a company for fools, but he will never establish an empire, and his bizarre creation will perish with him. Worthless authority may set up transitory bonds, but only wisdom makes lasing ones. The law of the Hebrews, which still lives, and that if the child of Ishmael which has ruled half the world for then centuries, still proclaim today the greatness of the men who first enunciated them; and even though proud philosophy and the blind sprit of faction may regard them as nothing but lucky imposters, the true statesman sees, and admires in their institutions, the hand of that great and powerful genius which lies behind all lasting things.83

The two Islamic philosophers Avicenna (980-1027) and Averroës (11261198) also took a positive approach to the just legal philosophy of Islamic law. Their writings and teachings inspired many Europeans and had a profound effect on the modification of European civil or criminal codes. Both philosophers faced many practical problems because of their positive attitude towards Islam. Particularly Averroes had to grapple with his opponents in Spain. As one judge at the International Court of Justice asserted: [they] paved the way for the release of reason from its strict confinement by pointing out that God did not give man reason without a papoose: it was meant to be used. While fully accepting the word of God in the Quran, they taught also that there was room for the coexistence of human reason and the world of God We must use out human reason to try to understand the word of God. This was known as the doctrine of double truth which comes from human reason. Of course, human reason will not always enable us to understand God’s reason, but there are some divine rules which we can attempt to understand. Averroes, in particular, advanced this teaching, at Cordova in Spain.84

83

Id. pp. 87-88. C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (New York: St. Martin’s Press, p. 95. 84

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Looking more closely at the development of the system of Islamic national and international criminal law, one realises that many factors contributed to the misinterpretation of Islamic theory. These were, inter alia, the division of Islamic theory after the death of Mohammad, the interests of the authorities in wealth and treasures, and, above all, the general misinterpretation of Islamic theory by Europeans.85 It is therefore clear that: Another difficulty is that some occidental readers are still not completely free of the prejudices inherited from their medieval ancestors. In the bitterness of the Crusades and the other wars against the Saracens, they came to regard the Muslims, and in particular Muhammad, as the incarnation of all that is evil, and the continuing effect of the propaganda of that period has not yet been completely removed from occidental thinking about Islam.86

As we will witness in the following chapters of this book, the systems of Islamic civil law, criminal law, family law, and human rights law, which are similar to the modern system of law and humanity, have been partly hampered by misinterpretation on the part of Muslim clerical and political authorities themselves and by Western antagonism. A theory í which, from the beginning, intended to establish justice and peace and to come to a proper understanding of the law by means of universal human ability í banished its own legal philosophy.87 The same is the case in the practical application of a good number of Western legal philosophies.88 85

Ahmad, Muhammed Khalafalla, ‘Islamic Law, Civilization and Human Rights’, 12 Egyptian Review of International Law (1956); Ali, S. A, The Ethics of Islam (Calcutta, 1895); Ali, S. A, The Spirit of Islam (London, 1896 and Delhi 1981); Breiner, Bert. “Shari`ah and Religious Pluralism,” in Religion, Law and Society; Brevli, Mahmud, Islam and the Contemporary Faiths (Karachi, 1965). 86 P.N. Holt, K.S. Lambton, and B. Lewis (eds.), The Cambridge History of Islam, 2 vols. (Cambridge University Press, 1970), p. 50. 87 See Christopher A. Ford, ‘Siyar-ization and Its Discontents: International Law and Islam’s Constitutional Crisis’ 30 Texas International Law Journal (1995), 499533. 88 For instance, see Legal Philosophy: The Influence of H.L.A. Hart (Ruth Gavison, ed, 1987); Heidi Hurd, ‘Challenging Authority’,100 Yale Law Journal 1611 (1991); G. Hughes, ‘Validity and the Basic Norm’, 59 California Law Review 695 (1971); H.L.A. Hart, Essays in Jurisprudence and Philosophy (1985); Joseph Raz, The Morality of Freedom (1986); J.W. Harris, Legal Philosophies, 2nd ed. (1997); John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (1954); Postema, Gerald J, Bentham and the Common Law Tradition (1986); Julie Dickson, Evaluation and Legal Theory (2001); H.L.A.

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The Islamic system had a good plan for slow enlightenment of the Arab world by means of self-analysis, self-understanding, self-control, self-collectivism, and selflessness. However, it was and is entirely misunderstood. One may even assert that the intention of the main source of Islamic law is to reach out to the heart of society by different methods of criminal law and criminological methods. This main source is particularly represented by philosophy, ethics, history, sociology, psychology, statistics, penal law, and restoration, including treatment methods, all of which are considered an integral part of contemporary legal science today.89 One may say that all the above subjects together represent the issues and principles of criminology and criminal law. From another perspective, the title Quran may be taken to mean Quranology or the first book on criminology presented almost 1400 years ago. In other words, one may argue that Islamic law was never going to be only a religious law but, first and foremost, a modern method and concept of understanding social interrelations between man and man, between man and nature, and, ultimately, between man and the spirit of divinity. In other words, Mohammad may well be considered the first criminologist in the entire world, but he had to present his policy of enlightenment of the Arab population within a theological concept rather than an academic one, since it would have been very difficult to understand for those who had no knowledge at all.

Hart, The Concept of Law (1961); H.L.A. Hart, The Concept of Law, 2nd ed, (P.A. Bulloch and J. Raz, eds, 1994). See also Ian Ward, An Introduction to Critical Legal Theory (1998); Richard Rorty, Philosophy and the Mirror of Nature (1990); Mark Kelman, A Guide to Critical Legal Studies (1987); Anne Barron, (Legal) ‘Reason and its “Others”: Recent Development in Legal Theory’, in Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Schiff Penner, and Nobles, eds, 2002), 1058-1065; Peter Goodrich, Reading the Law: A Critical Introduction to Legal Method and Techniques (1986); Balkin, Jack M, ‘Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence’, 105 Yale Law Journal 105 (1995); F. Ewald, Unger’s Philosophy: A Critical Legal Study 5 Yale Law Journal 665(1988); David Kairys, (ed.), The Politics of Law: A Progressive Critique (1982). 89 According to one opinion ‘The only way to reconcile these competing imperatives for change in the public law of Muslim countries is to develop a version of Islamic public law which is compatible with modern standards of constitutionalism, criminal justice, international law and human rights.’ A AnNaim, Towards an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse: University Press, 1990), p.9.

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12. Violation of Individual Rights At first glance, Islamic theory protects individual rights. This is also the case with European Union law, the United Nations conventions, and many other international humanitarian instruments. In fact, the individual is at the core of Islam, and the rights of individuals are not only protected separately but also collectively. It is for this reason that “every member of the community has the right to share public responsibility with the ruler; every individual has the right to correct the ruler and attack his decisions if he commits an error. Life, liberty, property and honour are inviolable.”90 All these principles are also an integral part of the legislation in most states worldwide. Of course, I use the term “states” here for those states whose legislations are aligned with the wording of international human rights conventions. But there are indeed very few states worldwide whose legislations are free from legal failure. In fact, Islamic law is the first legal discipline that recognises the individual’s position as the core principle of the law and protects it completely. In this context, I am referring to healthy Islamic theory, to healthy Marxist theory, to healthy Kantian theory and so forth. In recognising all these theories, one has to weigh not only the legal value of the core theory í and not the theory that is merely second-hand í but also the fact that its aspects, intentions, and main goals have been modified in the interest of political power and legal power and have manipulated legislations accordingly. In other words, “the individual is regarded in Islam as the most important unit of the Cosmos” for the protection of the human rights law of divinity.91 At the same time, the individual is the sole subject of responsibility. There is a similar line of legal reasoning in Islamic legal and criminal theory as well as the system of international criminal law, international criminal justice, international human rights law, and the implementation of international humanitarian law of armed conflict in the world. However, the problem is that coordinating these rights is the most important task of the international legal community í something that has yet to be achieved.

90 C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (New York: St. Martin’s Press), p.115. 91 Abdel-Wahab, S.E, ‘Meaning and the Structure of Law in Islam’, 16 Vanderbilt Law Review (1962), p.115 in Weeramantry, Islamic Jurisprudence: An International Perspective (New York: St. Martin’s Press), p.115.

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More significantly, authentic Islamic theory highly values individual freedom and prohibits any violation of this freedom by any authority or leader. In other words, “Freedom in Islam is one of the most sacred rights; political freedom, freedom of thought, religion freedom and civil freedom are all guaranteed by Islam and carried forward to a point in the distance that has left modern civilisation behind.”92 As a judge of the ICJ expresses it, “there was thus an obligation firmly binding on the ruler to rule justly, and never a licence to govern free of the imperative dictates of justice.”93 In fact, the fulfilment of Shariah is equity and justice, and every measure employed thereto shall be a part of faith and not a violation thereof. In the correct implementation of Shariah, one may assert that “it was full of the spirit of kindness, generosity and brotherhood; it was a simple and understandable religion; it was instinct with the chivalrous sentient of the desert; and it made its appeal straight to the commonest instincts in the composition of ordinary men.”94 According to one opinion: The conception of freedom recognised by the Shariah is much wider than that of manmade systems. The rules of conduct provide for the freedom of religion, consciences, expression, speech, avocation, and other important inalienable rights of man. The Quran says: ‘there is no compulsion in religion’ (ii.256, vi.108), and it is laid down as a duty to speak freely for justice as the Quran says: ‘Command what is right’ (vii. 199). The freedom given to man is related to the establishment of rights and justice. The Quran makes it the duty of every individual to speak for truth without any fear. It says ‘God loves not the utterance of harsh speech save by one who had been wronged.’ (iv.148) This freedom is given through limitations set up in public interest and anything which disturbs the public in general is not permitted. All possible methods of demonstration against evil by expression is possible, but they must be under the limits of the rules of peace and morality. Freedom of speech must observe the constitutional means for expression. It should not be violent and injurious and should not give rise to other evils in general. Nevertheless, the Shariah makes provisions for rising against authority, when there is a violation of the sacred principles on its part.95 92

A. Azzam, The Eternal Message of Mohammad (Harmondsworth: Penguin, 1964), p.102. 93 C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (New York: St. Martin’s Press), p.115. 94 H.G. Wells, The Outline of History, Being a Plain History of Life and Mankind (London, Cassell, 8th ed, 1925),p.607 95 Anwar A. Qadri, Islamic Jurisprudence in the Modern World (Dehli: Taj Printers, 1986), p. 57.

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The foundation of Shariah is the policy of justice during this life on earth and also in the life that may exist thereafter. Every action in this world presenting justice in the form of injustice is prohibited and is a violation of Shariah law. Therefore, acts that makes no sense can never be recognised as part of Shariah and such argumentation is even null and void.96 Shariah demands that the particular interest of an individual, authority, or leader must yield to the collective interest to ensure a just distribution of wealth or recourse.97 In other words, “the principles providing protection of human rights are a part and parcel of the Shariah itself. The laws and conducts or rules for human behaviour include the provisions of the fundamental rights.”98 It is an established principle in Islamic law that justice should be encouraged and injustice prevented, even if the latter is dispensed by the rulers of an Islamic state in the name of Islam or Islamic law. The fact is that injustice is wrong, and it should not be permitted to be continued. A traditional proverb says: “He who sees evil should prevent it.” It is said in Islamic law that “the greatest struggling for the sake of God is a word of justice said before an unjust ruler.”99 Consequently, justice is the word that protects the dignity of man and respects his privacy. Any other opinion against the rights of man violates his personal integrity and demands that justice be established in a civil court or a criminal court. Here, the practical difference is that Western law distinguishes between states and individuals, whereas the theory of Islamic law does not separate the relationship and position of individual and state. The concept of state in proper Islamic law is an abstract and does not exist in the sense that it exists in Europe. Although an individual has a legal personality, this personality is independent, and the individual is therefore also obliged to respect the legal personalities of other individuals. Any violation of this legal personality by another individual is, in the first stage, against the individual and, in the second stage, against the society of individuals. The individual is part of a relevant community, and the individual therefore has a duty to the community of individuals as a whole. The concept of integrity of the individual is so significant that an Islamic society cannot survive for long without it. Therefore, Islamic law divides the traditional duties of the individual into five different levels that address the concept of morality and duties. All five categories fall under 96 Mohad Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), pp. 8-9. 97 Id. p. 9. 98 Id. 99 Id. p. 59.

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the provisions of a considerable number of international human rights documents.100 The five levels are: i) acts that are by nature required to be performed by individual (obligatory) ii) acts that are recommended iii) acts, the fulfilment of which is at the individual’s own discretion and have no moral value iv) acts that are disliked v) acts that are prohibited (obligatory). Still, it must be noted that contemporary Islamic rulers and even many individuals consistently violate the basic principles of Islamic law regarding the principle of integrity of individuals in national, regional, and international laws.101 100

For instance, one can examine the provisions of the International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 which entered into force in accordance with Article 49 of the Covenant on 23 March 1976. 101 For example, the Iranian criminal legal system has frequently violated the provisions of Article 14 of the International Covenant on Civil and Political Rights. The article provides that ‘2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and

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when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’

CHAPTER THREE SOURCES OF SHARIAH CRIMINAL LEGISLATION

1. The Boundaries of Sources “Do not be people without minds of your own, saying that if others treat you well – you will treat them well, and that if they do wrong, you will do wrong. Instead, accustom yourselves to do good if people do good, and not to do wrong if they do evil.”1 Islamic law relies on a variety of sources for the development and interpretation of the law. It is on the basis of its sources and a combination of the opinions of the judges that the law applies to the parties. The flexibility of Islamic law emanating from different sources creates controversy concerning the enforcement of the law among the various doctrines within this law.2 Some of the sources enumerated in Islamic law are the Quran, custom, consensus, qiyas, preuves, pre-assumptions, equality, freedom, legal doctrine, and case law. However, there is no consensus among Islamic jurists concerning these sources, and this makes the application and interpretation of the law rather difficult. Therefore, when there is serious conflict in the interpretation of a case or in the application of relevant rules, the original sources of the law, which make up the entire theory of Islamic law, are mostly relied on. Here, I have also taken into consideration the most widely consulted sources of the law. These are some of the most widely recognised Islamic sources: i) The Quran. ii) The Sunnah or the traditions of the Prophet. iii) The Orthodox practice of the early Caliphs. iv) The practice of other Muslim rulers not repudiated by the jurist consults. v) The opinions of celebrated Muslim jurists: 1

The second source of the Islamic law. Mallat, Chibli, The Renewal of Islamic Law, Muhammad Baqer as-Sadr, Najaf and the Shi'i International (Cambridge, University Press, 1995). 2

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a) Consensus of opinion or Ijma. b) Individual opinions Qiyas. vi) The arbitral awards. vii) The treaties. viii) The official instructions to commanders, admirals, ambassadors, and other state officials. ix) The internal legislation for conduct regarding foreigners and foreign relations. x) Customs and usage. xi) Public interest or Istislah.3 In the following sections, some of these sources are presented with certain necessary references. Other sources refer to my other books. In this way, we have taken into consideration the most original sources and therefore avoided repeating secondary sources.

1.1.The Quran The Quran constituting the first source of Shariah is technically known as the Holy Book. It was introduced by the Prophet of Islam.4 It literally means reading as well as recitation. On the whole, the Quran has two types of legal commandments: those which are muhkam í decisive í and those which are mutashabih – obscure í, which means they may be interpreted differently.5 The decisive commandments in the Quran are those that imply the basic precepts of Islam. The second legal concept implies verses that may be analogous to different situations.6 The former has an obligatory character while the latter does not. The decisive rules of Islamic law can be compared with what is called de droit strict.7 The obscure rules are subject to terms known as complementary, interpretative, and explicative in international law.8 The Quran is known as the law of God; its principles and wordings are as 3

Consult Muhammad Jafar Jafary Langaroody, Islamic Law (in Persian, Teheran, 1978), p.15. According to Langaroody, the basic sources of Islamic law are the Quran, Sunnah, analogy, and consensus. Id, p.20. 4 The Quran, is, accordingly, the word of God revealed through the angel Gabriel to the Prophet Mohammad, first at Mecca and later at Medina. 5 Mohammad Talaat Al-Ghunaimi, The Muslim Conception of International Law and Western Approach (Netherlands, 1968), p.111. 6 Id. 7 Id. 8 Id, p.112.

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complete as those that represent the methods of sociology, psychology, family law, civil and taxation law, trade law, human rights law, criminal law, procedural law, criminology, and, for our purposes, the basic rules of the system of an Islamic international criminal court. The Quran has the purpose of uniting the world,9 whether with the words of God or with the collection of rules, provisions, regulations, norms, and principles that are already accepted or will be accepted by states representing the rights and duties of their individuals towards the international community as a whole. As such, it does not aim to introduce Islamic rules altogether but rather as a model in order to achieve international community law based on the consent of all individuals and states in the universe. The Quran is not only the source of Shariah but also of Islamic international law, Islamic international criminal law, Islamic human rights law, and Islamic justice as a whole.10 The Quran not only provides the manner of social life and methods of cooperation between the members of the society but also the laws, rules, and regulations that must be respected and applied in the relationships of individuals, entities, and states. Within these regulations, it introduces many provisions that are, without a doubt, the provisions of Islamic international criminal law, which have not been dealt with separately in the previous analysis of Islamic law. This is also a fact regarding the system of international criminal law, which was originally an integral part of public international law.11 9

The Glorious Holy Quran, Transl. by L.A.A.K. Jullundri, (Pakistan, 1962), p.1. See Abdullahi An-Na`im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse, 1990); Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law: Equal Before God, Unequal before Man? (The Hague/London/Boston: Kluwer Law International, 2002); Abul A'la Mawdudi, Human Rights in Islam (Leicester, 1990); Muhammed Khalafalla Ahmad, ‘Islamic Law, Civilization and Human Rights’, 12 Egyptian Review of International Law (1956); Abdullahi An-Na`im, ‘A modern Approach to Human Rights in Islam: Foundations and Implications for Africa’, in Claude Welch and Ronald Meltzer (eds.), Human Rights and Development in Africa (Albany, 1984); M. Cherif Bassiouni, ‘Sources of Islamic Law, and the Protection of Human Rights in the Islamic Criminal Justice System’, see Bassiouni (1982), pp.3-53; Sami A. Abu-Sahlieh Aldeeb, Les Droits de l'homme et l'Islam, 89 Revue general de droit international public (1985), 625-716. 11 ‘The concept of Islamic international criminal law includes that part of Islamic jurisprudence which denotes certain principles, customs, obligations, norms, or rules aimed at prohibiting and preventing the commission of certain conduct in the relations among individuals, groups, and states. The concept of Islamic international criminal law not only includes those rules or customs of Islamic law, 10

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Furthermore, the provisions of Islamic international law in the Quran consist of rules, obligations, and methods by which to achieve internationally peaceful relations between individuals, groups, nations, and states.12 Therefore, the peaceful settlement of international disputes is an important principle of the Quran. According to this principle, all international disputes must be settled equally, and the conflicting parties may not ignore the principle of justice and equality before the law.13 For this reason, the conflicting parties are encouraged to use arbitral rules and avoid war in the settlement of disputes. While certain severe provisions of the Quran governing the punishment of criminals may be criticized by some writers, this does not diminish its legal value,14 since these punishments should be discontinued/abolished and should be read (like many other laws) in conjunction with one another. Further, all punishments formulated under time pressure cannot be valid.15 Islamic theory, when it became powerful, could not deal with all Arabs, and the theory of remote cultures and any other measures against the principles of their culture would be equivalent to banishing the Islamic theory of justice and enlightenment. Consequently, Islamic theory had to be patient with all harsh punishments and all harsh principles dealing with inequalities in the population of the relevant culture. Islamic culture, however, was not the only society struggling against a very irrational culture. Most and even all societies of the world had similar problems; one can see these problems up until the Thirty Years’ War in Europe and even thereafter. The process of enlightenment under Islamic theory as did the process of enlightenment under Immanuel Kant needed a long time to take hold. This analogy is made with the difference that, in Europe, enlightenment came almost 700 but also customary and conventional rules of international criminal law. Like the system of international criminal law generally, Islamic international criminal law seeks to prevent, prohibit, prosecute and punish acts which are contrary to international peace, security, equality and justice.’ Farhad Malekian ‘Comparative Substantive International Criminal Justice’, in Ronald Slye (ed.),The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (2017), pp.10-44, at 15. 12 The Quran has 6256 versions on different subject matter, 500 of which have juridical provisions. 13 Abdullahi Ahmed An-Na’im, ‘Islam and International Law: Toward a Positive Mutual Engagement to Realize Shared Ideals’, ASIL Proceedings (2004), pp.15966. 14 These severe punishments should be regarded as abolished. 15 Farhad Malekian, The Heaven of Justice with Love, 36 (1) Journal of the Henry Martyn Institute (2017).

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years later than in the Arab world. This made its understanding very difficult for the Arabs when they were in very early development of civilisation, and this problem has remained an integral dilemma of Islamic theory up until today. In other words, one should not read and interpret the Islamic philosophy of punishment literally, but with much hesitation and in conjunction with codes that strongly encourage forgiveness and demand equality between men on earth and thereafter. 1.1.1. Protest Against Inequalities The Quran is opposed to all kinds of rights and obligations that create inequalities and injustices between subjects of Islamic international law. If this were respected, it would present the most significant form of equality for all individuals before national and international legal systems in Islamic societies. Since there are not any specific differences between Islamic law and Islamic international law, with due regard to their purpose of creating equality among their subjects, this purpose can easily be applied at the international level.16 It is for this reason that the Quran clarifies as follows: “O men, we created you from a male and female, and formed you into nations and tribes that you may recognise each other. He who has more integrity has indeed greater honour with God.”17 Accordingly, the Quran orders recognition as men and women, as a group and a nation, and as a state and an international community. This order demands the appreciation of the natural integrity of one another and of each nation as a whole. In the above verse, the term “integrity” implies the principle of equality between all human beings and nations without any prejudice to their national, social, cultural, economic, racial, religious language and other superficial differences. The Quran especially emphasises not using force in different matters of social conduct, and individuals should choose their theoretical, political, and theological beliefs by free consent. It reads, “There is no compulsion in matter of faith. Distinct is the way of guidance now from error. He who turns away from the forces of evil and believers in God, will surly hold fast to a handle that is strong and unbreakable, for God hears all and knows everything.”18 Furthermore, according to the main source of Islamic law, in social relations no race is above the other and none is better than another. 16

Consult Mohammad Talaat Al-Ghunaimi, The Muslim Conception of International Law and Western Approach ((Netherlands, 1968). 17 The Q, 49:15. 18 The Q, 2:256.

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The Quran illustrates this by stating: “O you who believe, men should not laugh at other men, for it may be they are better than them; and women should not laugh at other women, for they may perhaps be better than them.”19 It also repeatedly emphasises the principle of brotherhood among all individuals in their national and international relations.20 This principle is applicable regardless of race, language, sex, or religion. The principle not only has a legal effect on the fulfilment of international obligations but also plays a psychological role in maintaining appropriate international relations. 1.1.2. Automatic Application One of the positive principles of the Quran is that it applies automatically. The application of provisions of the Quran should not be ordered by a superior but should come from individuals who understand that a proper application of Islamic provisions is necessary and vital for the maintenance of justice and love for divinity. The Quran is a very acquiescent constitution, and one should be aware of the fact that its rules, principles, and humanitarian aims can already be found within the system of international criminal law.21 This is one of the most important values of the Quran, which has influenced the history of international criminal law. The reason for this is that the writers of the European Law of Nations were impressed by Islamic humanitarian law and adopted many of the principles of Islamic international criminal law in their provisions. For instance, “most of the modern law of war relating to the repression of war criminality has evolved, historically, in a European setting ... though borrowing, substantially, from Quranic law through long and close contact with the Moslem civilization.”22 The Quran and its norms concerning criminal law and international criminal law may be interpreted (like many other systems of law) in different ways, and therefore different conclusions may be reached

19

The Q, 49:11. Majid Khadduri, Major Middle Eastern Problems in International Law (1972); Majid Khadduri, ‘The Islamic Theory of International Relations and its Contemporary Relevance’ in Proctor, J. Harrris, J. (ed.) Islam and International Relations (London: Pall Mall Press, 1965), pp.24-39. 21 Consult Karima Bennoune, ‘As-Salamu ‘Alykum? Humanitrain Law in Islamic Jurisprudence’, 15 Michigan Journal of International Law (1994), pp.605-43. 22 Gerald I. A. D. Draper, ‘The Modern Pattern of War Criminality’, 6 Israel Yearbook on Human Rights (1976), p.9. 20

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concerning the same issue, e.g., aggression and Jihad.23 This depends on the personal judgment and social status of the person interpreting it as well as on the purposes for which the political diplomacy of the Quran concerning Islamic international law is going to be employed.24 The Quran expects cooperation between all individuals, groups, clans, and states for the purpose of implementing international criminal justice and preventing aggressors from further violations of the fundamental rights of mankind.25 Its basic function is to create workable and acceptable principles of international human rights law in relations between individuals and states and to promote the principles of equality, justice, and brotherhood for all without any form of discrimination in national and international life. The invaluable function of the Quran in the development of Islamic international humanitarian law of armed conflict, and human rights principles therefore cannot be denied from either a jurisdictional or natural law point of view. This approach should be judged with consideration of the law that was presented 14 centuries ago and not only with the laws that have been formulated in recent times. Even though it is a fact that the Quran is not a source of contemporary international criminal law or an international criminal court, from a historical perspective, it is obviously a prior source. This is based on the fact that the system of international criminal law has made reference to Islamic principles. The Quran

23

Firestone sees jihad as theholy war, but this is wrong interpretation of jihad. Firestone, Reuven, Jihad: The Origin of Holy War in Islam (New York: Oxford University Press, 1999). Some other writers for and against are Cheragh Ali, A Critical Exposition of the Popular Jihad (Calcutta, 1988); Nawaz, M.K, ‘The Doctrine of 'Jihad' in Islamic Legal Theory and Practice’,8 The Indian Year Book of International Affairs (1959), pp.32-ff; Coulson, N.J, Conflict and Tensions in Islamic Jurisprudence (University of Chicago Press, 1969). 24 For political concepts of the Quran, see Maududi, Sayyid Abul A’la, Islamic law and Constitution (7th ed. 1980), pp.155 et seq. 25 A number of states even have incorporated Islamic rules into their constitutions. See for instance Clark B. Lombardi and Nathan Brown ‘Do Constitutions Requiring Adherence to Shari`a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law,’ 21 American University International Law Review (2006), 379-435; Clark B. Lombardi ‘Islamic Law as a Source of Constitutional Law in Egypt,’ 37 Columbia Journal of Transnational Law (1998), 81-123; Clark B. Lombardi and Nathan Brown, ‘The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No.8 of Judicial Year 9 (May 18, 1996)’, 21 American University International Law Review (2006), pp.437-460.

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therefore remains the historical source of Islamic international criminal law or, for our purposes, an Islamic international criminal court. There are, in practice, no sources of public international law that can truly be compared with the Quran’s attitudes. This is due to several essential reasons. First, it is self-executing. This means its principles, norms, rules, and obligations do not require authorization and should automatically be applied in relevant situations by those faithful to its inspiration. This is one of the pleasing essences of the Quran. It has different characterizations and possesses the virtue of self-execution, self-adaptation, self-confirmation, self-applicability, self-enforceability, and also self-control. Second, sources of public international law must be considered by conflicting parties and may or may not be enforced according to equal and just principles.26 The Quran, however, does not own this modus operandi of public international law. Its principles, if they are being respected, without a doubt create equality and justice based on divine jurisdiction for the communities of Muslims. This is a judicial system in which laws, courts, judges, and the accused must be respected. Despite the fact that the law of the Quran is very powerful in theory, in practice it is quite different among Muslim nations. Many forms of judicial corruption do exist, including false statement of the facts.

1.2. Sunnah The second source of Islamic international criminal law or an Islamic international criminal court is Sunnah, which also includes the hadith.27 It 26 By this statement, however, we do not mean that the relevant provisions of the Quran, should be applied in the international relations of states. This is because speaking about the theory of the law does not necessarily mean speaking of its application. The Quran, contains many rules which are not only rich in their meaning, but are also simple in cases of application. This may also be true in the case of many other international laws of antiquity. 27 For further clarification, it must be stated that, although Sunnah and hadith constitute the second sources of Islamic international criminal law, their legal characterizations must not be confused with one another. Sunnah means the manner or mode of life of the Prophet during his lifespan. One of the legal reasons for Sunnah constituting a second source in Islamic law is that Sunnah represents and interprets the Quran. In other words, it is the actual practice of the Quran, during the life of the Prophet. Sunnah not only interprets the Quran, but also aids in its practical implementation and enforcement. Hadith means the narrations of the Prophet conveyed to man through revelations or hearing. One may say that the second source of Islamic law consists of two interrelated subjects complementing one another’s purposes and more or less representing the same subject matter. For

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means the sum total of the statements, behaviour, and authentic social traditions of the Prophet Muhammad28 concerning certain acts that should be prevented, eliminated, prosecuted, and punished when the principles of the law of humanity are violated. A general interpretation of this source also encourages full respect for the international humanitarian law of armed conflict and the implementation of the principles of human rights law in war- or peacetime. Majid Khadduri, one of the most well-known Islamic writers, mentions the fact that Arabia before Islamic law based its provisions and legal reasoning on the system of customary law that prevailed among the Arabs.29 The customary law consisted of moral and legal obligations, complementing each other’s intentions. In fact, Sunnah developed from the consequences of the customary law’s forefathers, and its enforcement in the practice of different clans established the corpus of customary law and therefore its legal validity. However, this customary law was very limited and was originally the way in which people in large cities like Mecca and Medina could understand the definition of legality, obligations, duties, and responsibility. Still, it all depended on the most powerful clan.30 Professor Kamali describes Sunnah as follows: Literally, Sunnah means a clear path or a beaten track but it is also used to imply normative practice, or an established course of conduct. A Sunnah may be a good example or a bad one, and it may be set by an individual, a sect or a community. In pre-Islamic Arabia, the Arabs use the word "Sunnah" in reference to the ancient and continuous practices of the community that they inherited from their forefathers. Thus it is said that the pre-Islamic tribes of Arabia each had their own Sunnah, which they considered the basis of their identity and pride. The opposite of Sunnah is bidah, or innovation, which is characterised by lack of precedent and continuity with the past.31 further study on hadith, see M.M. Azami, Studies in Hadith Methodology and Literature (1977); M.M. Azami, Studies in Early Hadith Literature (Indianapolis, 1978); R. Bosworth-Smith, Mohammad and Mohammadanism (1889); M. AbulFazl, Sayings of the Prophet Muhammad (1980). 28 For hadith, see M.M. Azami, Studies in Hadith Methodology and Literature (1977); Azami, Studies in Early Hadith Literature. 29 See note below. 30 Majid Khadduri, “Nature and sources of Islamic Law” 22 (1) the George Washington Law Review (1953), pp.2-23; Ian Edge (ed.), Islamic Law and Legal History (Dartmouth, 1996), p. 88. 31 Available at http://www.Mohammadamin.com/Reviews/Principles-of-Islamic-juris prudence.html (accessed on 25 November 2016).

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Therefore, Kamali recognises three types of Sunnah. These are: 1. Sunnah which simply confirms something that is already in the Quran. 2. Sunnah which explains, clarifies, or amplifies an existing teaching of the Quran. 3. Rulings in the Sunnah on which the Quran is silent.32

Sunnah has also been enumerated as one of the most reliable sources of Islamic international law.33 The Quran orders in several passages the importance of this source. It reads, for example, that “whatsoever the Messenger gives you take it and whatsoever he forbids, abstain from it.”34 Sunnah implies an interpretation and enforcement of Islamic international criminal law from a historical view due to the traditions of the Prophet.35 Thus, Sunnah must be considered an invaluable source of Islamic international criminal law because of the very strong connection between it and the chief source of this law. In other words, Sunnah promotes the progressive development of international humanitarian law, not only legally but also, from a practical point of view, in order to prevent genocide, apartheid, crimes against humanity, war crimes, torture, unnecessary killings, the unnecessary suffering of individuals, and rape.36

32

Id. See the preceding chapters. See also Hamidullah, Muslim Conduct of State, p. 18. 34 The Q, 59:7. 35 Jafary Langaroody, Islamic Law, p. 45. 36 The Ashti name of Muhammad or the Covenant or Testament is a writ or a charter granted by the Prophet to the Christians of Mount Sinai. This is the place where Moses received the Ten Commandments and is also an integral part of the history of Christians. In the Judeo-Christian region of the Middle East, Mount Sinai is recognised as one of the four main sacred mountains. According to the charter, “This is a message from Muhammad Ibn Abdullah, as a covenant to those who adopt Christianity, near and far, we are with them. Verily, I, the servants and helpers, and my followers defend them, because Christians are my citizens; and, by God, I hold out against anything that displeases them. No compulsion is to be on them; neither are their judges to be removed from their jobs, nor their monks from their monasteries. No one is to destroy a house of their religion, to damage it, or to carry anything from it to the Muslims’ houses. Should anyone take any of these, he would spoil God’s covenant and disobey His Prophet. Verily, they are my allies and have my secure charter against all they hate. No one is to force them to travel or to oblige them to fight. Muslims are to fight for them... Their churches are to be respected.” Syed Imad-ud-Din Asad, Myth of Islamic Intolerance. www.islamicity. com/articles/Articles.asp?ref=DW0605-2948. Last visited on 2016-10-14. 33

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For the above reasons, an Islamic international criminal court may refer to Sunnah especially in case of certain questions of the law and the need to clarify their application.37 For instance, there are numerous examples where the Prophet applied the law in situations of major issues or conflicts between two or multiple states.38 Still, according to one opinion, the rules of Islamic law found in the traditions of the Prophet are inferior to the Quran.39 Muslim jurists are unanimous in their opinion on the fact that Sunnah is a source of Shariah and that it is as equal to the Quranic verses. However, in case of an apparent contradiction between the provisions of the main sources, i.e., between the Quran and Sunnah, one needs to investigate the historical circumstances and the reasons for their contradictions or modifications in light of the conditions of the time. One also needs to appreciate when something has been revoked because of historical events. Consequently, one cannot necessarily reject Sunnah and implement the Quranic provisions. Sunnah becomes binding once the legal authority of the Sunnah text is clear, positive, encourages the good and avoids the bad. In the modern development of international society, however, they will scarcely contradict each other if interpreted authentically.

1.3. Consensus The third source of Islamic international criminal law, or an Islamic international criminal court, is Ijma, meaning, in this context, the consensus of opinion on certain international criminal matters.40 This 37 Majid Khadduri, (ed.), Islam and the Modern Law of Nations, 50 American Journal of International Law (1956), pp. 558-572; Majid Khadduri, (ed.), (transl.) The Islamic Law of Nations: Shaybani’s Siyar (Transl. with an introduction, notes, and appendices, Baltimore, 1966); Majid Khadduri, Major Middle Eastern Problems in International Law (1972); Majid Khadduri, ‘The Islamic Theory of International Relations and its Contemporary Relevance’ in Proctor, J. Harris (ed.), Islam and International Relations (New York, 1965). 38 A line from these provisions of humanitarian law of armed conflict can be found in the order of caliph Omar Bin Khattab when, in 658, Jerusalem was conquered by Muslims. He declared: “I grant them security of lives, their possessions, their children, their churches, their crosses, and all that belongs to them.... Their churches shall not be impoverished, nor destroyed; neither endowments, nor their dignity... Neither shall the inhabitants of Jerusalem be exposed to violence in following their religion; nor shall one of them be injured.” www.paklinks.com/ .../208894-islamic-humanitarian-law.html. Last visited on 2017-14. 39 Hamidullah, Muslim Conduct of State, p.18. 40 J.N.D. Anderson, Decision by Majority in Islamic Law (Berlin, 1973).

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source contains the high value of collective opinion when agreeing on an international criminal case and the need for a democratic jurisdiction between different members of the universal community as a whole. There are different opinions regarding the key elements of Ijma or consensus. According to one opinion, consensus in international criminal matters does not mean the majority opinion but rather complete agreement by all who participated in arriving at a decision relating to an international criminal case. This consensus has a higher unanimous character.41 Clear examples of this type of consensus, when compared with the system of international criminal law, are the decisions reached in the General Assembly by the members of the United Nations, e.g., resolutions of the Assembly on apartheid, racial discrimination, and decisions relevant to the rights in the struggle of the Palestinian people for liberation and freedom from unjustified occupation. Without doubt, all these resolutions correspond to the system of Islamic international criminal law, including its sources, aims, and requirements in order to achieve universal peace, equality, and justice. According to another opinion, consensus is when an overwhelming majority of opinion is reached due to the examination of a certain international criminal matter.42 The third opinion argues that it is sufficient for a specific group to agree on the existence of a certain matter, that the matter is widely known by others, and that they do not object to or remain silent as regards its existence.43 This may be compared with the contents of some resolutions by the Security Council, in whose voting process the majority of states does not participate, as their aim clearly overlaps with the system of international criminal law and Islamic international criminal law. These are resolutions that recognize the establishment of ad hoc tribunals for the prosecution and punishment of accused individuals within the territory of the former Yugoslavia and Rwanda. Other examples are the resolutions that condemn the human suffering in Darfur. Consensus is thereby achieved because of the clear human rights support within the content of the resolutions. Although there are three different general opinions on the process of legal validation of the principle of consensus in the system of Islamic law, none of these opinions can reject the existence of consensus as a source of Islamic international criminal law. Obviously, the validity of the principle of consensus in Islamic international criminal law does not hinge on whether unanimity has been 41

Jafary Langaroody, Islamic Law, p. 68. Id. 43 Id.

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reached among all Muslim jurists relating to certain international criminal matters, but whether the practice or non-practice of a certain subject matter has a common value for the universal community as a whole. If one or several jurists do not agree on the matter at issue, they can simply express their opinions in accordance with the principle of equality of speech and as a consolidated principle of Islamic law í a later consensus may abrogate the former. This source of Islamic international criminal law can also be compared with those principles of the system of international criminal law that have come into existence over time and have not necessarily been codified or regulated in special agreements. Still, they are, however respected, sometimes considered an integral part of customary international criminal law and have sometimes even been abolished by another principle. The principle of consensus in Islamic international law and international criminal law can be compared with the vast majority of decisions normally reached in the General Assembly of the United Nations in the form of resolutions on certain issues.44

1.4. Juridical Analogy Juridical analogy, also called analogical reasoning or Qiyas, constitutes the fourth and subsidiary source of Islamic international criminal law, which may also be used in an Islamic international criminal court. A juridical analogy is essentially based on the opinion of an individual jurist who, by analogical reasoning, applies the existing decision in a case, a rule of Islamic international criminal law in the Quran, or the traditions of

44 Many of these resolutions deal with questions of international criminal law, including crimes against humanity, war crimes, crimes against peace, genocide, apartheid, the international humanitarian law of armed conflict, the invalidity of occupations, intervention, self-determination, drug offences, and terrorism. A historical review of the work of the General Assembly implies that one or several of the permanent members of the Security Council have rejected most of these resolutions. This means that unanimity was not reached in the General Assembly. However, this does not preclude the validity and enforcement of the relevant resolutions of the General Assembly. The reason for this is that the type of consensus achieved in the adoption of resolutions of the General Assembly is not only the result of the voting process, but is also highly important in the elimination of criminal activities conducted by certain groups or states. Farhad Malekian, The Monopolization of International Criminal Law in the United Nations, A Jurisprudential Approach (2nd ed., 1994), pp.76-89.

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Mohammad relating to certain practices of Islamic international humanitarian law to another case.45 A certain similarity must always exist between the subject of Islamic international criminal law when compared with another subject such as racial discrimination or humiliation because of race or religion.46 A juridical analogy is essentially based on a jurist’s deductions and interpretations in another matter, which are similar and can consequently be implemented to solve the given case.

45

Mohammad was from the Banu Hashim family belonging to the Quraish clan. Abdu'llah and Amina were his father and mother. Abd-al-Muttalib was his grandfather, and his other grandfather (mother’s father) was Wahib. Mohammad was born about 570 A.D and died in 632 A.D. He became an orphan very early in his childhood. Therefore, his grandfather acted as his guardian, and he was then entrusted to a Bedouin until weaning. Thereafter, Abu Tali'o, who was one of his uncles, became his guardian. During this period, he accompanied his cousin Ali who later became one of his close companions and thereafter his son-in-law. Based on his intelligent skills in trade and, more significantly, for being known as honest Mohammad, he married Khadija, a rich widow whose business was run by him. He travelled with his caravan to many cities and regions, inter alia Palestine. It was after marriage and after a series of events that he gradually went on spiritual retreats. From this time on, Mohammad raised his voice against idolatry, God made of stones or trees. It is believed that the angel Gabriel (Jibril) appeared to him and gave him the command to preach. Mohammad asked: ‘But what should I preach?’ The Angel replied: ‘Preach in the name of your Lord who created man…’ (96, 'Alaq 1-5). It was after this time that visions of the Quran, were revealed to him, and Mohammad invoked all men to heed justice, the justice of God, and equality between all man. His primary invocation was that there is only one God. He invoked men to work with honesty in gratitude for the goodness of God. It was after this time that the opposition against him and his friends became fierce. This occurred in 610 AD. After twelve years, he was forced to emigrate from Mecca to Yathrib (Medina). Sixty of his followers joined him. Yathrib is situated about 280 miles north of Mecca. This emigration is called Hijra and was enforced on 24 September 622. Mohammad lived and died in Medina (622-632). He is buried there, too. Those who assisted him were called Ansar and those who rose against him Munafiqun. It did not take long for the theory of Islam and its invocation to heed one God as well as the universal declaration of human dignity became known in the Arab world, the Middle East, Africa, Asia, Europe, and around the globe. 46 Matthew Lippman,, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York, Westport, Connecticut, London, 1988); Farhad Malekian, ‘The Homogeneity of International Criminal Court with Islamic Jurisprudence,’ 9 (4) International Criminal Law Review (2009), pp. 595-621; Sayyid Abul A’la Mawdudi, The Islamic Law and Constitution (Islamic Publication Ltd, Lahore, 7th ed. 1980).

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A juridical analogy by a jurist in Islamic international criminal law may be compared with the fourth source of the system of international law, i.e., a publicist as the subsidiary means for the determination of the rules of international criminal law. A juridical analogy by a jurist may only be referred to if the case at issue cannot easily be treated by and in accordance with other sources of Islamic international criminal law. The opinion of a jurist may be found in the collections of judicial decisions called Fatawa, in the relevant works of the writers of Islamic international law, responsa prudentium, proceedings of conferences, and in the modern works on Islamic international law.47 A jurist must exercise a considerable amount of caution in the case of an international criminal juridical analogy. Accordingly, juridical analogy cannot be applied to any law or decision that already states the actual reason for its existence.48 Islamic international criminal law does not prevent different criminal juridical analogies to solve certain international criminal issues such as the prohibition of rape, torture, and genocide.49 Nevertheless, all analogies are based on rational reasons and are not biased understandings. For example, a juridical analogy among many of the decisions of the ICTY and ICTR may be useful; it should be based on the circumstances of each case and whether or not such juridical analogy is beneficial for a practical and just settlement of the case. In any event, the basic law of each tribunal must be taken into juridical consideration. 47

Hamidullah, Muslim Conduct of State, pp.24-5. Jafary Langaroody, Islamic Law, p.85. 49 For the crime of genocide, see for further analysis and references Id, p.119. For example, on the non-ratification of the international Convention on Genocide, see J. Duffett, Against the Crime of Silence (New York, London, 1968). W. Michael Reisman, Legal Responses to Genocide and Other Massive Violations of Human Rights, 59 Law and Contemporary Problems 75 (1996); William L. Hurlock, The International Court of Justice: Effectively Providing a Long Overdue Remedy for Ending State-Sponsored Genocide (Bosnia-Herzegovina v. Yugoslavia), 12 American University Journal of International Law and Policy 299 (1997); Beth van Schaack, The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot, 106 Yale Law Journal 2259 (1997); John D. van der Vyver, Prosecution and Punishment of the Crime of Genocide, 25 Fordham International Law Journal 286 (1999); Mary Robinson, Genocide, War Crimes, Crimes Against Humanity, 25 Fordham International Law Journal 275 (1999); William A. Schabas, Genocide in International Law, the Crime of Crimes (2000); Matthew Lippman, ‘Genocide’, in International Criminal Law, Vol. I (M. Cherif Bassiouni, ed. 2008) pp.405-455. In particular, see the statements of Bertrand Russell and the Russell International War Tribunal held in Stockholm, Sweden, May 2-10, 1967 and Roskilde, Denmark from November 20 to December 1, 1967. The Tribunal was essentially created as a result of different meetings in London in 1966. 48

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The application of juridical analogy in order to solve certain questions of humanitarian law of armed conflict promotes and makes the system of Islamic international criminal law an adaptable and soft law. The provisions of the system of international criminal law may easily be accepted in the Islamic system because they would not have been ratified by Islamic nations if their purposes had been against the principles of Islamic law. Consequently, from a broader perspective, juridical analogy encourages the solving of international problems with international criminal analogical reasoning as well as the use and application of different methods of promoting the peaceful settlement of international criminal disputes, e.g., prohibition of the use of dangerous weapons. The use of this source is particularly important in Islamic international criminal law, which does not employ the new legal terminologies of the system of international criminal law in its original form.

2. No Compulsion in Ideologies One of the most important and significant principles of Islamic international law is that it prohibits all types of compulsion in the international relations of states.50 This is particularly significant in terms of any concept of individual or group ideologies. This principle has been particularly emphasised by the main source of Islamic law. The relevant verse of the Quran reads that “There is no compulsion in religion.”51 The verse makes it clear that compulsion is prohibited in religion and, further, that compulsion should not be used to convince a person of an ideology that is against her/his own consent. In order to grasp this fact, Islamic human rights openly insist that: 1. Everyone has the right to freedom of thought, conscience and religion and no restrictions may be imposed on the exercise of such freedoms except as provided for by law. 2. The freedom to manifest one’s religion or beliefs or to perform religious observances, either alone or in community with others, shall be subject only to such limitations as are prescribed by law and are necessary in a tolerant society that respects human rights and freedoms for the protection of public safety, public order, public health or morals or the fundamental rights and freedoms of others. 50

Abdullahi Ahmed An-Na’im, ‘Islam and International Law: Toward a Positive Mutual Engagement to Realize Shared Ideals’, ASIL Proceedings (2004), pp.15966. 51 The Q, 2:256.

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5. Parents or guardians have the freedom to provide for the religious and moral education of their children.52

Yet, there are serious debates between Islamic jurists on the legal validity of Quran and Sunnah in comparison with one another. They argue about which one is above the other and which one can be more powerful than the other. Various arguments and reasoning have been presented, and different philosophies for the metaphysical strength of Quran over Sunnah or vice versa have been given. All these are discussed under the term “naskh,” meaning “obliteration.” Kamali writes “Naskh may be defined as the suspension or replacement of one Shariah ruling by another, provided the latter is of subsequent origin, and that the two rulings are enacted separately from one another. According to this definition, naskh operate with regard to the rules of Shariah only, a proviso which precludes the application of naskh to rulings that are founded in rationality (‘aql’) alone.”53 The same writer outlines a certain number of ways to realise the basic sources of Islamic law. He states that: Abrogation applies almost exclusively to the Quran and the Sunnah but not to ijma and qiyas. It is confined to the period while the Prophet was alive. Ijma cannot abrogate a clear ruling of the Quran or the Sunnah since one can never conclude a valid ijma that contradicts the Quran or the Sunnah. A Quranic ruling or a mutawatir hadith cannot be abrogated by a weaker hadith, by ijma or by qiyas. These are not of equal authority to the foregoing. That is also the reason why there can be no abrogation after the Prophet died. Statements of fact in the Quran (such as the destruction of the people of Thamud by a storm) cannot be abrogated since that would imply that the original statement in the Quran had been false. Some Quranic teachings (for example the attributes of God) are inherently incapable of being abrogated. The text itself may preclude the possibility of abrogation. For example Quran 24:4 states that persons who are convicted of slanderous accusation may never be admitted as witnesses. The word “never” indicates that this is a principle valid for all time and therefore not capable of being abrogated. There are varying views as to whether a hadith can abrogate the Quran. The general view is that a ruling of the Quran may be abrogated by another 52

Article 50. Available at http://www.Mohammadamin.com/Reviews/Principles-of-Islamic-juris prudence.html (accessed on 25th November 2016). 53

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There are four schools of religious law within Sunni Islam. They are classified by the names of their founders. These are Hanafi, Shafi, Hanbali, and Maliki. One may say that the differences between them relate not to the elements of faith but to rational judgments, methodologies of interpretation, and their fruitful effect concerning the rules of independent reasoning. In the early history of Islamic jurisprudence, Shafi was the most recognised school of Shariah but was later replaced by Hanafi because of developments in the Ottoman Empire. Kamali, after presenting the above list of reasoning, believes that Shafi supporters argue that Sunnah can abrogate the Quran and vice versa.55 This point implies the high value of Islam to orient itself according to the requirements of time. The principle of consent under Islamic international law constitutes one of the first principles of human morality. This is in order to achieve peace and justice. The use of force to enforce ideological conceptions is a prohibited principle under Islamic law.56 This principle stems from the fact that Islamic ideology is, in essence, empowered by mutual consent between divine jurisdiction and the individual herself/himself. Needless to say, our thesis has essentially been based on Islamic original rules and regulations embodied in the sources of the law and not necessarily in its historical development in the practice of different Islamic regimes. Consequently, by stating that there is no compulsion in religious ideologies, we are expressing the words of positive law and not its various developments and misinterpretations under the authorities of different religious/political powers. This is also true in the case of many principles of public international law and their development in the practice of various regimes.

54

Id. Id. 56 See Farhad Malekian, ‘The Canon of Love against the Use of Force in Islamic and Public International Law: Part II: The Anatomy of Love Against Violations,’ 15 International Criminal Law Review, 2015), pp. 861-895; Farhad Malekian, ‘The Canon of Love against the Use of Force in Islamic and Public International Law: Part I: The Chamber of Love within Legal Discipline,’ 15 International Criminal Law Review, 2015), pp. 591-628; see also Farhad Malekian, Condemning the Use of Force in the Gulf Crisis (Almqvist & Wiksell International, 1th. ed.1992, 2d. ed.,1994,). 55

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3. Peaceful Settlement of Disputes Peace is imperative in the jurisprudence of Shariah or Islamic law.57 Disputes must be solved by peaceful means, and parties to a conflict are obliged to exhaust all possible means for a peaceful settlement. These include negotiation, arbitration, mediation, and conciliation.58 The law of arbitration has especially been developed under Islamic jurisdiction, and the Quran provides a number of provisions regarding the scope and validity of arbitration.59 One of the verses of the Quran puts forth that “God doth command you to render back your trusts to those to whom they are due; And when you judge between man and man, that you judge with justice: Verily how excellent is the teaching which he give you! God hears and sees all things.”60 One of the strongest reasons for the development of this Quranic verse was the practice of Muhammad í the Prophet of Islam í whose arbitration for the peaceful settlement of disputes reached the highest level of justice in the Islamic world.61 The second source of Islam, i.e., Sunnah, which incorporates the traditions, mode of life, and statements of the Prophet, among others, on the peaceful settlement of international disputes for the prevention of war, including war of aggression, must be considered the most reliable source for the prevention of hostilities between conflicting parties. Ijma í the third source of Islamic law í also confirms the important validity of arbitration for the peaceful settlement of international disputes.62 In order to stop bloodshed and aggressive activities between conflicting parties, the peaceful settlement of disputes, particularly by nominating arbitrators, is recognised as one of the most important methods for solving political disputes under Islamic international criminal law. In order to prevent bloodshed, Ali Ben Abi Taleb, the first of the twelve recognised Imams in Islamic religion (Shi’a),63 accepted the institution of arbitration 57

For some considerations on the terminology of SharƯah see W. Watt Montgomery, Islam and the Integration of Society (London, 1961) pp.199-209. 58 Afzal Iqbal, Diplomacy in Islam, An Essay on the Art of Negotiation as Conceived and Developed by the Prophet of Islam (Lahore, 1965). 59 Baber Johansen, Contingency in Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Brill, 1998). 60 The Q, 5:8. 61 El-Ahdab Abdul Hamid, Arbitration with the Arab Countries (Denver, Boston, 1990), pp. 14-17. 62 Id. 63 The first four Rashidun Caliphs were Abu Bakr, Umar, Uthman, and Ali.

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as an effective method for stopping acts of aggression by a party in conflict. This occurred when Muawiyat Ben Abu-Sufyan refused to recognize the right of Ali Ben Abi Taleb to gain leadership (Caliphat) in the Islamic world.64 This case indicates the importance of settling disputes by peaceful means.65 However, it should be noted here that the conflict of leadership was more of a political than a conventional nature and had nothing to do with the main purpose of Islamic law. That is to say that the division of Sunni (the majority) and Shi’a (the minority) is indeed superficial for the legal structure of Islamic law. In particular, the division goes against the spirit of Islamic law, which emphasises that creating sects within Islam is not permitted and, in fact, violates the chief intention of Islamic law concerning the common aspiration of faith to universal union. That is why Islamic law strictly forbids any kind of division in terms of its substance.66

4. A Comparative Examination of Sources A considerable number of international sources are an integral part of the ICC such as customary law, conventional law, and general principles of law.67 It is true that Islamic international criminal law or an Islamic international criminal court should be created in accordance with Islamic rules. However, it is also clear that such a court should include in its statute certain principles, rules, and regulations that are not contrary to the basic elements of the system of international criminal courts, such as the 64

Abdul Hamid, note 60, pp.16-17. This leadership was between high members of Islam, who had some connection with the Prophet for the completion of his mission. However, the leadership practiced today by certain Islamic nations is obviously invalid and in violation of Islamic human rights law. It means offensive religious power rather than a defense of the corpus of Islamic law. 66 The Q, 50:52. 67 The judge of ICJ illustrates that ‘the comparative use of Islamic law to interpret and develop international law allows us to surpass the stereotypes and misconceptions about Islamic world. Not only are we able to better understand traditions and cultures that have been ignored, we can also discover that more often than not the west and the East agree on what international law means. As a consequence, we should allow both the Western and the Islamic World to have an equal impact on how international law ought to be understood and how it should develop.’ see Awn S. Al-Khasawneh, ‘Islam and International Law’ in Marie-Luisa Frick and Andreas Th. Müller, Islam and International Law: Engaging SelfCentrism from a Plurality of Perspectives (Leiden. Boston, Martinus Nijhoff Publishers, 2013), pp.29-42, at 41. 65

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application of the international law of treaties, including human rights law, or the principle of legality used in inquisitorial or adversarial systems.68 Both systems of international criminal courts strive for peaceful international relations and the promotion of a peaceful settlement of international conflicts. However, the ICC is not successful, and we need to understand that an Islamic international criminal court may also face such a problem. While the main source of the system of international criminal law may be said to be conventional international criminal law, the basic provisions of conventions, such as those on genocide, apartheid, and the Geneva conventions on the law of armed conflict, have more or less similar values for Islamic international criminal law and an Islamic international criminal court.69 One may even assert that Islamic international criminal law fully respects all provisions of international criminal conventions as long as they overlap with the chief principles of Islamic law for the protection of man and nature from all forms of violation. A similar conclusion may be drawn about other sources in both legal disciplines. As a general rule, for an Islamic international criminal court, the other sources are essentially the development and evolution of its basic source, i.e., the Quran, which is why they cannot be opposed to its framework.70 In general, the examination of these comparatively common values in the context of the purpose of law facilitates interrelations between both systems and may therefore solve many international conflicts between states. We should remember that the rightful interpretation of Shariah is essentially based on the principles of love, morality and legality. The proper Islamic rules will cease to function as soon as when human rights 68

Id. pp.38-41. It is therefore asserted that ‘there is a consensus that there is natural connection between human rights and international criminal law. Some Muslim countries are signatories to various treaties that outlaw international c rime s and human rights violations . T he content of SharƯah law is very different from w hat is acceptable to the international community. If we consider the vital issue of universality of hum an right s and criminal law, then it is only wise for Islamic criminal la w to conform to fundamental principles of international criminal law.’ Etim E. Okon, ‘Hudud Punishments in Islamic Criminal Law’, 10 (14) European Scientific Journal (2014), pp.227-38, at 235. Available at file:///C:/Users/oscar/AppData/ Local/Temp/3405-9940-1-PB-1.pdf (visited on 20 February, 2017). 70 This is because “the relevant portions of the Quran, and the Sunnah form permanent positive law of the Muslims in their international dealings; state legislations and treaty obligations establish temporary positive law; and all the rest provide non-positive or case law and suggested law respectively.” Hamidullah, Muslim Conduct of State, p.56. 69

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laws, equality between human beings, social justice and humanitarian law of armed conflicts are not any longer violated by individuals, groups and states which also includes Islamic states themselves.

CHAPTER FOUR SHARIAH CODIFYING INQUISITORIAL JUDGMENTS

1. Legal Philosophy “The greatest jihad is to battle your own soul, to fight the evil within yourself.”1 Abu Hamid Muhammad Al-Ghazali (450-505 A.H. Hjiri) or (1058-1111 A.D.), the Persian philosopher and jurist whose opinions are greatly acclaimed and whose works are internationally recognised, points out that, in order to achieve justice, you should declare jihad against certain enemies within yourself that you cannot perceive.2 These are egoism, arrogance, pride, selfishness, greed, lust, intolerance, anger, accusation, lying, cheating, faking, gossiping, and slandering. If you can master and destroy these vices, then you will be ready to fight the enemy you can see. Al-Ghazali modified the Islamic inquisitorial method and philosophy and gave it a new appreciation and interpretation of faith and love for justice. Everything he wrote and thought came with great weight. His book al-Munqidh min al-DalƗl, or Rescuer from Error, or Deliverance from

1

The second source of the Islamic law. Duncan B. Macdonald, Development of Muslim Theology, Jurisprudence and Constitutional Theory (Lahore: The premier Book House, 1972), pp. 215, 217, 218, and 219. He introduced Sufism into SharƯah and described this school of thought. In general, Sufism or Tasawwuf means absolute dedication to worship and complete submission to the spiritual nature of the God. Id. 215-42. Al-Ghazali renounced his highly recognised career and turned to Sufism. The reason for this was that, in the old practice of Islam, there was no other way to discover truth and knowledge. Sufism would create this opportunity. Consequently, he criticised Islamic philosophy and, without denying Islam, he introduced the concept of enlightenment as the method of understanding theology, philosophy, logic, and the natural sciences.

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Error and Attachment to the Lord of Might and Majesty,3 is a unique contribution to Islam and the philosophy of legal, religious, and theoretical reasoning. The book was written in the form of an apology for the faith or a genuine ‘Apologia Pro Vita Sua’4 almost 1000 years ago.5 Al-Ghazali extols the following: Against them one may argue: `The man who excels in one art does not necessarily excel in every art. It-is not necessary that the man who excels in law and theology should excel in medicine, nor that the man who is ignorant of intellectual speculations should be ignorant of grammar. Rather, every art has people who have obtained excellence and preeminence in it, even though stupidity and ignorance may characterize them in other arts. The arguments in elementary matters of mathematics are demonstrative whereas those in theology (or metaphysics) are based on conjecture. This point is familiar only to those who have studied the matter deeply for themselves’. If such a person is fixed in this belief which he has chosen out of respect for authority (taqlid), he is not moved by this argument but is carried by strength of passion, love of vanity and the desire to be thought clever to persist in his good opinion of the philosophers with regard to all the sciences.6

The concept of Islamic justice, including a criminal system, fighting against evil is historically rooted in the theory of Islam from its very inception.7 European criminal law has a similar philosophy from its outset. 3 W. Montgomery Watt, The Faith and Practice of Al-Ghazali, translated from alMunqidh min al-DalƗl (London: George Allen and Unwin LTD, no year provided), available at http://www.ghazali.org/works/watt3.htm (visited on 5 March 2017). 4 Duncan B. Macdonald, Development of Muslim Theology, Jurisprudence and Constitutional Theory (Lshore: The premier Book House, 1972), p.216. 5 Al-Ghazali was ‘equal of Augustine in philosophical and theological importance, by his side the Artistoelian philosophers of Islam, Ibn Rushd and all the rest, seem beggarly compilers and scholiasts. Only al Farabi and that in virtue of his mysticism approaches him.’ W. Watt Montgomery, Islam and the Integration of Society (London, 1961) pp.199-209, p.215. 6 In Montgomery. 7 J. Harris Proctor (ed.), Islam and International Relations (New York, 1965); Franz, Rosenthal, The Muslim Concept of Freedom Prior to the Nineteenth Century (Leiden, 1960); R. Bosworth Smith, ‘Muhammad and Muhammedanism,’ Lectures delivered at the Royal Institute of Great Britain, 2nd ed. (London, 1876); Khuda S. Sukhash, Contribution to the History of Islamic Civilization (1st ed, Calcutta, 1950), Vols. I and II; Montgomery, W. Watt, Muhammad at Medina (Oxford, 1956); Publications of Centre Culturel Islamique (No.1), Introduction to Islam (Park Lane, Secunderabad, 1576 H/ 1957 A.C.).

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Criminal law in Europe also struggled against evil behaviour and seriously wrongful actions. The duty of churches, inter alia, was to prevent crimes. Therefore, they were very authoritative. Islamic law fought against evil with by the inquisitorial method. The philosophy of criminal jurisdiction in the criminal law of most European states is typically based on the inquisitorial system. This applies to those countries whose laws were originally based on the Napoleonic or Roman codes. The system of inquisition requires a judge to examine a case properly in front of the parties involved and in an open court. It denotes a legal investigation, whereby the court is required to find the facts and the truth and to determine the evidence in full or in part, depending on the gravity of the offence. The system does not necessarily establish the category or type of crime that is supposed to be prosecuted. The system also does not decide on the sentences that may be carried out. Rather, the court shows how the trial procedure should be conducted in view of the given criminal inquiries. Consequently, the inquisitorial system refers to and adheres to the way in which to deal with substantial law in terms of the procedure applicable to criminal cases.

2. The Roots of the System The inquisitorial system is believed to have been established by the Catholic Church in the Middle Ages. The ecclesiastical courts adopted the technique of arbitration by asking witnesses and defendants to carry out an inquisitorial oath organised by the judge who was also responsible for questioning the witnesses. In this method of investigation, the witness swore to reply honestly to all queries of the judge and to express only the truth, the facts, and not her/his own understanding of the case. This method of inquiry is also a method that was developed by the revelations of Islamic law. The Islamic judge had a similar function as the above, with the difference that he drew his conclusions from Shariah law or the Islamic codes. One may conclude that, after the revelations of Islamic law and settlements in the manner of religious law, most courts were based on Islamic rules and sanctions. The judgments of the courts were therefore quite restricted in the beginning and also followed the standard of cultural understanding of the relevant society in which the court was established. In Europe, the inquisitorial system began in the 13th century, and the method continued to be developed into the 16th century in England, when changes began to occur. However, its application in the Court of the Star

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Chamber, the court reserved for multiple and complicated charges, turned out to be detrimental. The Star Chamber Court consisted of privy councillors and common law judges. Its function was to complement the common law and impartial courts in civil and criminal matters. The concept of the Star Chamber therefore addressed the notion of security and was supposed to ensure a just implementation of rules of law against politically and socially prominent people who were so authoritative and influential that ordinary courts did not dare to bring them under their criminal jurisdiction. The Islamic systems do not have a Court of the Star Chamber but, for example, the clerical or priestly individuals selected by the supreme authority in Iran may be comparable in character, with the difference that the court is completely manipulated by the leaders of the country. The concept of the Privy Council of England, which consists of senior members of the House of Lords and the House of Commons (including leading military leaders, diplomats, judges, and churchmen), may be compared with the Council of Guardians of the Islamic Republic of Iran. According to the Republic, it constitutes the most honourable council in the country or a body of advisers in political or juridical matters, particularly in terms of the selection of the leader of the country.8 Under the sovereignty of King Henry VIII, the authority of the Star Chamber grew and strengthened. The court applied torture to enforce the chanting of the inquisitorial oath. Ultimately, the Star Chamber was abolished because its power over the basic liberty of individuals had become too strong. This was one of the reasons why the English system modified and changed to an adversarial system. An almost similar development can be seen in the Islamic system of criminal jurisdiction. It also used torture or very harsh methods of executing sanctions, but this began to change and, combined with the method of adversarial rules, it now means that a judge applies not only case law, or the tradition of Mohammad – Sunnah, but also increasingly draws his own conclusions.9 This is why the present systems of Islamic nations mostly alternate between inquisitorial and adversarial methods of jurisdiction. We should also take into consideration that they also ought to respect the accusatorial principle in all their judgments.

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However, it would take another volume to explain its secret nature. Abul-Fazl, M, Sayings of the Prophet Muhammad (New Delhi, 1980); Abou El Fadl, Khaled, ‘Political Crime in Islamic Jurisprudence and Western Legal History’, 4(1) UC Davis J. of Int’l Law and Pol. 1 (Winter 1998); Abdur Rahim, The Principles of Muhammadan Jurisprudence (Madras, 1911).

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What we mean to say by all this is that the principle of accusatorial law is an integral part of the Islamic legal system. In other words, if the accusation is not proven beyond a reasonable doubt, the judgment cannot be correct and again misleads the entire legal system. Real Islamic law therefore strongly emphasizes authentic evidence, i.e., including physical or material evidence. Consequently, the presentation of any witnesses or any other evidence must be based on the principles of truth, authenticity, and wisdom. Witnesses who are not wise enough and contribute false information cannot be considered reliable, and the court may reject their legal validity. Indeed, evidence cannot be legally valid if it is revealed that the case is misrepresented by those who derive great personal benefit from it. In this context, it may be relevant to quote one of the well-known verses of the Holy Book governing questions of justice:10 O ye who believe! stand out firmly for justice, as witnesses to God, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for God can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily God is well-acquainted with all that ye do.

An Islamic court must be fair and apply the full principles of justice. These principles may develop out of Islamic rules or even other, non Islamic rules. True Islamic law does not insist on the application of Islamic principles only but on the application of just principles. Any interpretation of Islamic rules binding Islamic theory solely to the application of Islamic theory may violate the principle of divine law, too. The basic assumption for this conclusion is that Islamic law has a multilateral nature, and this nature is not far from justice. In other words, Islam rejects any rules, principles, provisions, conventions, and interpretations that rely on unjust principles, whether they be Western or non-Western principles of justice. The Islamic principles that are a wrongful interpretation of Islamic justice are condemned accordingly.

3. The Inquisitorial Codes Whilst the inquisitorial system in the European legal system basically arises from Roman Codes or the Napoleonic Code, in Muslim nations, 10

Verse 155 of Surah Al Nisa (The Women). The verse is also posted on a wall facing of the Faculty of Harvard Law Library, as presenting a well articulated formulation of justice.

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Islamic law is relied on for evolving and developing its rules. Thus, in Islamic nations, the inquisitorial system of jurisdiction was established almost 1400 years ago. The inquisitorial method of jurisdiction in Islamic nations is called Shariah law, whereas it was originally called Code Napoléon in Europe. It is also known as Code civil des Francais, which includes the French Civil Code adopted under the period of Napoléon in 1804.11 It included both the applicable rules and the inquisitorial method of jurisdiction. The intention of the Code was to discount and abolish the unfair system of justice in France. Unfortunately, however, the Code was not applied to all the territories occupied by France but only to the traditional French territories.12 This meant that, although the entire system of legal justice had undergone an enormous reform with regard to the civil rights for all individuals in France and had a strong influence in the world in terms of legal development, its benefit was still limited to the states that were civilised states according to the European Law of Nations. This is why other states, e.g., the African colonies of France, did not enjoy the provisions of the Code. The Code outlawed the traditional rules and customs that divided the population into different classes, giving some of them high privileges.13 It prohibited privileges based on birth among different classes and granted the freedom to choose one’s religion.14 This freedom may also be found in the original intention of Islamic law. The core inquisitorial idea of Islamic law was to reduce the differences between the classes and give individuals full freedom to choose their religion. Islamic religion proclaimed that religion is not practised by force. However, this philosophy was not respected in practice by the authorities, and this became one of the main reasons for the division of Muslims and the development of antagonism against the moral standards of the law. In other words, the Islamic inquisitorial methods of jurisdiction became an instrument of power politics. The position is the same today. In France, the inquisitorial system became a rule and strengthened the theory that governmental jobs should not be the monopoly of a specific 11

Lorenz Kristen, Les Quarante Codes des Francais Composés des Charte de 1830, Code Civil (Berlin: Deutschland, 1845); Stock Photo - justice, laws, France, Code Civil des Francais (Code Napoleon), title, 1st edition, Paris, 1804, Napoleonic Code, law, book, 19t. 12 Napoleonic Code (France, 1804), available https://www.britannica.com/topic/ Napoleonic-Code, 24 January 2017. 13 Id. 14 Id.

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class of families but that such positions should be occupied by the most eligible and qualified person. The Code was drafted by a commission of four distinguished lawyers and came into force on 21 March 1804. The Code prohibited the previous rules and emphasised rules and provisions that were clear and not too complicated to reach their aims. This was one of the most significant steps in replacing the difficult prior mélange of laws based on feudal interests. The work of these four jurists therefore became one of the most influential documents for the development of equal opportunity and the abolition of laws that had humiliated people on several continents.15 Similarly, many Islamic jurists tried to separate legal authority from political authority; the struggle was not easy, however, and required not only a modification of the law but also a modification of certain harsh cultural rules. In the beginning, Islamic jurisdiction was therefore the monopoly of those who had gained full knowledge of Islamic law and also had religious priority. They were not only lawyers in Islamic law but often also priests who encouraged and developed the religion of Islam. This method of approaching law and legal order, although practised for a long time, had its own weaknesses because priorities could intentionally or unintentionally be given to those who were known for their strong religious beliefs. With the advent of certain political and administrative changes at the end of the 19th and beginning of the 20th centuries, the political structure of Islamic law began to modify itself. Its power of jurisdiction, which had been the monopoly of holistic circles or mullahs, also came into the possession of society as a whole. Based on this assumption, an illustration may explain what we mean by going straight to the crux of the matter. According to the doctrine of inherent powers and authority necessary for a democracy, all courts of law under the jurisdiction of any state must be pervaded by four principles. These are ‘authority, dignity, impartiality, and efficiency. The rule of law demands no less. The doctrine of inherent powers recognizes this fundamental rule and enables courts to achieve it. All courts, regardless of system, whether in the common law system, or the civil law system, or an adquisitorial-common law and civil law system, or some other system, have inherent powers because they are courts, and should use those powers to assure that the rule of law is recognised and realized in their country, if

15 Robert B. Holtman, The Napoleonic Revolution (Baton Rouge: Louisiana State University Press, 1981).

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they are national courts, or in their community, if they are local courts, to achieve justice.’16 For instance, one of the reasons for these developments and the modification of power in the application of law is the Civil Code of France, which strongly influenced radical changes in the law of other countries. Iranian civil law was strongly affected by the rules of French civil law and still follows many of its and procedures in the application of the law.

4. Interpretation by Judges In earlier times, all aspects of the law were the privilege of legislators, which is why judges of the courts were not permitted to interpret the law. This restriction was modified by the Napoleonic codes, however, and the interpretation of the law entered into the sphere of judges’ jurisdictions. This is not to say that judges in France were or are permitted to create laws or rules but that they have been permitted (after the adoption of the Napoleonic codes) to deduce and interpret the law according to the circumstances of the given case. In the system of Islamic jurisdiction, this has been the practice of judges since the very days of its initiation and has been progressively developed throughout its historical evolution. Thus, the principle of interpretation or deduction entered the Civil Code almost 1500 years after the Islamic law, where interpretation of the law was an integral part of its body from the beginning. The development of law in the Civil Code is therefore in the hands of many private or public entities, presenting suggestions, although the interpretations by judges are very effective for creating discussions and ultimately bringing them to the desks of the legislators. Thus, the Civil Code as adopted may be modified in parliament and become law under the conditions it provides. This is also true in the Islamic system, with the difference that it has a source of already adopted legislation, namely Shariah, which presents the entire philosophy of Islamic law. Still, Shariah is a very flexible law and adapts itself to the new modifications of the time. This is one of the virtues of Islamic law, which has unfortunately been ignored in practice. The reason is that most persons of authority interpreting the law are religious authorities with control over 16

James G. Apple, ‘Court Authority Necessary for a Democracy: The Doctrine of Inherent Powers and the Fashioning of Remedies’ in Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the SharƯah(London. New York: I. B. Tauris, 2003), pp.45-61, at 61.

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the entire system, meaning a monopoly of law. Otherwise, as we will see later, many of the Islamic rules should be considered abolished and replaced with new codes of morality that can be adjusted to the present circumstances of human rights law.17 It must be stated here that the Napoleonic Code was not the first legal code adopted in Europe. Before the Napoleonic Code, there had been other codes or legal mechanisms in civil legal systems of other countries.18 However, the advantage of the Napoleonic Code was the considerable number of new rules, which set it apart from other codes because of its broad capacity to provide new sanctions for the implementation of the law. Since that time, judges have tended to interpret and emphasise the literal meaning of the codes. The Code was also one of the essential reasons for the development of civil law and its recognition by many European states during and after the Napoleonic Wars. The Code rapidly spread outside Europe and caused legal reforms in many countries in Africa, South America, Asia, and the Middle East, among them the Persian Civil Code.

5. Civil Law Roman law is the source of civil law. It is also called the civil code and continental law. The civil law system is probably the oldest system practiced in the national systems of different nations. Its origins even date back to the Hammurabi Codes, when the judge had the duty to mete out justice with due regard for the provisions of the Codes. The civil law system is the most common type of jurisdiction around the globe. It is legislated by parliament or representatives of government. The civil law system should not be confused with common law. Under the civil law system, the freedom of the court is limited. The origins of this restriction of freedom go back to the Napoleonic courts, where judges were not allowed to interpret statute laws. The civil law is statute law, which has been adopted by the legislator and is enforced by the courts. The civil law system is based on the assumption that the laws applied to citizens are drafted and adopted by citizens through their representatives 17 Ineke Boerefijn, ‘Towards a Strong System of Supervision: The Human Rights Committee’s Role in Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights’, Human Rights Quarterly 17.4 (1995) 766793. 18 These were the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1794), and the West Galician Code (Galicia, then part of Austria, 1797).

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or their legislative organs. The main obligation of judges is to administer the law as correctly as possible and not to create laws. Codified laws have a very significant function for the continuation and implementation of the law, serving the needs of the relevant society. Thus, there must be a connection between the relevant laws, and the legal philosophy of all laws must be in harmony. In other words, they should not be at variance. Conflicts of law should be avoided, although this is difficult in practice. This is why the legislator may, from time to time, modify and realign the main intentions of laws. The function of the legislator becomes more difficult where the territorial jurisdiction of the laws applies to complex, multilateral cultures.

6. Islamic Inquisitorial System The inquisitorial system is a method based on a code and the way in which one may apply the relevant code. The Islamic system also applies an inquisitorial method, for the most part, in the sense of a method of applying the law based on legislation, which in turn should not be contrary to the principles of Islamic law. These are the principle of legality, the principle of prosecution, the principle of guilt that must be proven beyond any reasonable doubt, and the principle of application of appropriate sanctions. Islamic law, with all these principles, encourages justice. In other words, a proper Islamic inquisitorial system means justice and, since such justice is not really practiced in any of the Islamic nations, the quality of their inquisitorial system is seriously in doubt, as it violates the principles of justice mentioned in different codes of Islamic law. The true inquisitorial system of Islamic law demands justice in all circumstances. Clearly, Islamic law cannot triumph as long as the principles of justice have not come within the borders of its practice. Among those we have created there is a community who guide by the Truth and act justly according to it.19 … if you do judge, judge between them justly. God loves the just.20 You who believe! Show integrity for the sake of God, bearing witness with justice. Do not let hatred for a people incite you into not being just. Be just. That is closer to self-restrain. God. God is aware of what you do.21

19

Q, 7:181. Q, 4:42. 21 Q, 5:8. 20

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Every nation has a Messenger and when their Messenger comes everything is decided between them justly. They are not wronged.22

An example of inquisitorial practice by Islamic nations is Saudi Arabia, which practices the inquisitorial system through cooperation between the judge and the investigator. The defence lawyer is less adversarial than in common law trials. Islamic law protects the right of the accuser to remain silent to safeguard the presumption of innocence. This is why Islamic law encourages a fair trial and condemns trials that are corrupted by political agreements between parties and by decisions of judges that have been reached before trial/the court. The judge has already received the written judgement before the initiation of the court trial.23 Some of the principles of a fair trial are to keep and protect the rights of the accused at all times. For instance: a) No person shall be judged guilty of an offence and made liable to punishment except after proof of his guilt before an independent judicial tribunal. b) No person shall be judged guilty except after a fair trial and after reasonable opportunity for defence has been provided to him. c) Punishment shall be awarded in accordance with the Law, in proportion to the seriousness of the offence and with due consideration of the circumstances under which it was committed. d) No act shall be considered a crime unless it is stipulated as such in the clear wording of the Law. e) Every individual is responsible for his actions. Responsibility for a crime cannot be vicariously extended to other members of his family or group, who are not otherwise directly or indirectly involved in the commission of the crime in question.

The above codes are not exceptional and were not at all new to the system of law at the time they were revealed. They had already been stated by many societies prior to the revelation of Islam. Almost 4000 years ago, the Hammurabi Code offered clear examples of justice and the duties of the judge. It says that: If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall 22

Q, 10:47. A clear example is the Saddam Hussein Trial in Iraq. The judges of his trail already knew the decision of the permanent members of the Security Council on the execution of the accused. 23

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However, what is significant in Islamic law is not the terms of justice but justice as the object of the law, as the substance of its existence, as the rule of law, and as the means to the end. Consequently, Islamic law, in one sense, encourages justice and humanity but, in another, its substance cannot survive without the existence of justice. The inquisitorial methods of Islamic law as practiced in many Islamic nations under the civil law system undoubtedly violate the framework of the law and are no longer Islamic law but a presentation of the machinery of legal power.

7. Defendant in Inquisitorial and Adversarial Proceedings In civil cases, the defendant is neither imprisoned nor executed. The losing party is officially responsible for reimbursing the other party. The punitive sanction is a financial sanction such as cash or property. The intention of the legislator is to reduce future violations of the law by imposing punitive sanctions. The applicable sources of substantive law are legal statutes and legislation. The methods are based on abstraction and on procedural and substantive rules, all of which follow specific principles. Under the civil law system, all rules are written, and the judge is required to follow the written law. Thus, the judge is not free to choose her/his own method of application or rules. The intention of the civil law system is to offer all citizens equal law, rules, and principles based on substantive law. Its aim is also to limit the authority of the judge and to create a reliable system of rules, which is accepted by citizens. The civil law system is a forum of substantive laws that are the result of legislative decisions. Remarkably, in the civil law system, the court is not bound by cases of precedent. Whilst it is a fact that a judge has a duty to find and apply the relevant law in each case, the practice of earlier judgments may influence the new decision. It is sometimes impossible not to overlook the decisions of other courts in a similar case, even though the court does not refer to the precedent case. Most inquisitorial systems do not force a criminal defendant to answer questions about the crime itself. The defendant may, however, answer all other questions at trial. A considerable number of such questions may

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involve the defendant’s history and would be considered irrelevant and unacceptable in an adversarial system.24 In an inquisitorial system, a criminal defendant is the first to testify.25 Based on this principle, the defendant is permitted to study the government’s case as s/he sees necessary before presenting her/his own version. The defendant is normally very enthusiastic about this process before releasing her/his own details or understanding of the case. Studying the government views helps the defendant to orient his or her own presentation. Unlike in the adversarial system, the defendant is not required to testify in her/his case and is therefore not asked to go through the government’s case. In the inquisitorial system, unlike the adversarial system, the criminal defendant has no special protection.26 However, in the inquisitorial system prosecutors have no personal incentive to issue criminal convictions for political gain. On the contrary, however, this motive exists for prosecutors in countries based on an adversarial system. In an inquisitorial system, a criminal defendant is not presumed guilty. Nonetheless, since the philosophy behind the initiation of a case against a defendant indicates the existence of a certain amount of evidence in support of her/his culpability, the system does not call for the presumption of innocence principle that is considered a cornerstone of the adversarial system.27

8. Powers of the Judge 8.1. Active Judge The inquisitorial function of civil law systems requires judges to be active all the time, they cannot remain neutral about the case. They have to examine evidence and witnesses during the procedure. This is what an Islamic judge should do in an Islamic court. Thus, the legal activity of a judge is an integral part of her/his duties, and her/his duties are an integral part of the law.

24

Consult P. M. Bekker, ‘The undefended accused/defendant: a brief overview of the development of the American, American Indian and South African Positions’ XXIV CILSA (1991), pp.151-188. 25 Id. at 152. 26 Id. p.170. 27 Id. p.176.

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It also means the judge is responsible for finding the facts and the truth by examining the evidence, as is the case in most civil legal systems.28 According to one opinion, Islamic law set qualification standards for judges more than a thousand years ago.29 Consequently, one practical feature of early Islamic criminal procedure deserves to be mentioned here: namely, the elegant precision and formality of the rules governing the conditions to be qualified as an honest judge. 1. a judge should be God-fearing and dignified in demeanour; 2. he should have sound common-sense and be conversant with the best of judicial literature; 3. he should bear an absolutely impeccable character; 4. he should not deliver judgments before he is satisfied that full proof has been laid before him, nor delay judgment when sufficient evidence has been produced; 5. he should be fearless in awarding what is right and due; 6. he should accept no present nor hear any recommendations; 7. he should see no party concerned in private; 7. he should really smile, and speak little; 8. he should accept no favour from any party concerned, 9. he should take great care to protect the property of orphans.30

However, an Islamic judge may not carry out her/his function properly, or may miss the real evidence, or may even come to a wrong conclusion. His judgment may not be correct and may be appealed to a higher court. This process is not unlike most inquisitorial legal systems. In Islamic law, ‘it is within the jurisdiction of the judge to make an effort to settle a dispute without recourse to law by advising, guiding, and reminding the parties of their duties. Such advising, and conciliation often proves decisive and the matter is settled mutually. However, when such attempts fail, then the matter will be decided according to law.’31 Yet, it is believed that two trends may guide the powers of the judge in evaluating evidence: The first trend is represented by the majority of the jurists, who view the judge as strictly bound in his choice and number of methods of evaluation, 28

Muhammad Tal’at Al-Ghunaimi, ‘Justice and Human Rights in Islam’ in Gerald E. Lampe (ed.) Justice and Human Rights in Islamic Law (Washington: International Law Institute, 1997, pp.1-22, at p.12-3. 29 Id. pp.2 and pp. 30 Id. p.2. 31 Mohad Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), p. 58.

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in the light of what is found in the legal text. The judge must operate within these methods; he cannot violate or go beyond them. Likewise, the parties in the case are bound to these fixed methods, and can prove their rights only by the their use. The case must be established via strictly fixed means, so that the properties, lives and souls of people are not exposed to loss or damage at the hands of unfair judges, who base their judgments on people’s status and flimsy circumstances. Were the means of asserting and proving a case not defined and limited, this would encourage false claimants to transgress the rights of others, cussing anarchy, disorder and injustice.32

The second trend indicates that: any and every possible means of making the truth clear and convincing to the judge may be used. Similarly, they argue that these methods should neither be limited in number nor strictly confined, and that the judge has the freedom to convince himself by any argument presented to him, while the parties are free to use any argument in order to establish their rights.33

The active role of a judge in an inquisitorial system may be contrary to that in an adversarial system in which the judge has to maintain her/his impartiality. The consequence is that, in the inquisitorial system, the court’s function is to find the truth about the accusations by challenging evidence, questioning witnesses, and, if necessary, directing the investigation and, ultimately, to sentence one of the parties in the conflict. Thus, in an inquisitorial system, the judge’s duties start with the initiation of court proceedings while the main functions of the judge in an adversarial or common law system are carried out at the end of the trial.

8.2. The Lay Judges The mixed court or adquisitorial model, as we have seen elsewhere, is another form of criminal procedure employed primarily in civil law countries. The adquisitorial court can also be seen in socialist and common law legal jurisdictions. In modern language, it is also called adquisitorial/mixed method. The adquisitorial legal system constitutes a method of adjudication in which one or more lay judges assist the 32 Saeed Hassan Ibrahim, ’Basic Principles of Criminal Procedure under Islamic SharƯah : Judicial Powers in Criminal Cases’ in Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the SharƯah(London. New York: I. B. Tauris, 2003), pp.17-29, at 23. 33 Id. p.24.

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professional judge in order to arrive at a correct decision. It is a process of cooperation between a primary judge and several other secondary judges. The term “juror” refers to one of the lay judges and is commonly used for a lay judge who is a member of a jury. S/he is under oath and has to deliver a verdict in a case submitted to the jury. Lay judges may also be called justices of the peace. This has been recorded, for instance, in the legal procedure of England and Wales.34 These lay judges selected from the local community may not have any legal education on the legal decision-making process of the given courts. They may also be called magistrates. Lay judges may be citizens who are not necessarily legal professionals but honourable persons who do not have a criminal or other negative record.35 Lay judges may be elected by the government agency responsible for monitoring criminal courts. These judges may work as volunteers for a certain time or serve a term prescribed by law. For instance, the service of a lay judge in the Swedish legal system is an honorary task. The intention is to maintain public confidence in the administration of justice, and it is also a way for the general public to gain insight into the operation of the court system. Lay judges assist in such different issues as reasonability issues, evaluation of evidence, and sanctioning of sentences. While the duties of a lay judge are different from those of a professional judge, the lay judge must still take a judicial oath. This oath generally requires the affirmation of conscience and honour in combination with some brief training. The reason for the oath is for the lay judge to confirm that s/he will adjudicate as justly as possible and not entertain views that are irrelevant. The lay judge also promises not to disclose or disseminate information revealed during trial. Such information should not become public knowledge, including information discussed in the court’s private deliberation. Thus, the Swedish lay judge provides assurance to apply Swedish legal rules in accordance with the adjudication process. The lay judge must also

34

“In Great Britain, lay judges sit with professional judges in some types of cases only and, where they do so, the overwhelming majority of decisions are unanimous.” Pete Burgess, Susan Corby, and Paul L. Latreille, ‘Lay Judges and Labour Courts: A Question of Legitimacy’, 35 Comparative Labour Law and Policy Journal (2014), pp.191-215, at 193. Available at https://cllpj.law.illinois.edu /content/pdf/vol_35/issue_2/Burgess-et-al-35-2-FINAL.pdf (visited on 19 June 2017). 35 A considerable number of states use lay judges like Sweden, Norway, Finland, Japan, Austria, Brazil, Germany, Soviet Union, and Yugoslavia.

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take care not to let political views interfere in the adjudication process.36 In the Swedish legal system, for example, this can be very difficult at times, since political party integrity is very high and a lay judge may therefore, in one way or another, be affected by a political position.37 In some states, the number of lay judges depends on the seriousness of the case, the level of the court in the country, and the prescribed laws of the country.38 One may conclude that lay judges replace the jury system, which, in common law systems, is entrusted with providing the necessary balance between the machinery of the state, which acts against the accused, and the rights of the accused, which have to be protected along with the interests of justice. The lay judge’s main function is to keep the professional judge from acting in an arbitrary manner. In other words, lay judges may prevent justice from being immoral. The adquisitorial court, as has been stated elsewhere, was exercised in the Islamic legal system long ago and progressively developed and extended its forms. By contrast, in civil law countries, the adquisitorial court began only in the middle of 19th century, when some European countries attempted to follow some of the rules of the Anglo-American jury system. Those countries started to open the door much more for the public to assist in legal cases. For instance, a lay judge in the Iranian criminal legal system is, in most cases, a clerical person who occupies the position with full control í he 36

http://www.domstol.se/Funktioner/English/The-Swedish-courts/District-court/ Thetasks-of-lay-judges/ visited on 27th January 2017. For example, the frequent “clearly racist” letters to one of the Swedish editors and politicians were seen by the district court as an essential reason to loss his position as lay judge. ‘SD-politiker sparkas efter rasistiska insändare,’ available at https://www.hallandsposten.se/nyheter/ laholm/rasistiska-ins%C3%A4ndare-f%C3%A4ller-n%C3%A4mndeman-1.3764852, visited on 27th January 2017. See also http://www.dn.se/sthlm/politisk-vilde-avstan gd-som-namndeman /, visited on 27th January 2017. 37 In certain civil cases, when a lawyer chooses the lay judge, s/he must exercise a considerable amount of caution in selecting the right person. A Swedish lay judge must say: I swear on my honour and conscience that I want to and will, to the best of my knowledge and belief, make correct decisions in my all judgments. I will do my best to be fair, no less for the poor than the rich. My judgment will be based on Swedish legal legislation and relevant statutes. I will never pervert the law or unfairly promote kinship, affinity, friendship, envy, malice, or timidity, neither for bribery or for gifts, or any other cause, in whatever guise, nor to do or take a decision which is meaningless or however similar to meaningless engagement. I will keep all these vows sincerely as an honest judge. RB 4:11 (Swedish basic law). 38 A clear example is the German law.

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may not have sufficient education in law but works only on the basis of Islamic principles and with other professional judges. At the beginning of the Revolution, these lay judges even had full judicial power. In the second decade after the Revolution and mainly after the death of Khomeini, low ranking clerics and laymen were added to the active agents in Islamization process, and the ideologized jurist law of the third period transformed to the lay-judges. This was the fourth transformation, adjudication changes to be a way to direct control of the opposition and defiance. In this system, the judiciary pursues an anti-rationalization process, and arbitrariness and political discretion are the rules. The goals of the judicial system in this period are not to apply and enforce laws and regulations impartially, predictably and efficiently- as it was demanded by the people during the Revolution-but to enforce Islamic law-as read by clerical authoritarians – and the will of clerical ruling elite. The centrality of the judge in judicial process and floating character of the laws make all verdicts unpredictable. The polarization of judiciary is the strategy of the ruling elite to survive in a partial democracy/partial authoritarianism political society during the civil rights of movement established by resort to the constitution of 1979. The main causal factor for judicial reform I this model is the change in political structure.39

Germany uses lay judges, so-called Schöffen. They mostly sit in certain limited cases of jurisdiction or in cases involving minor offences.40 Schoeffen or lay judges may also be used for criminal offences having the 39 Majid Mohammadi, Judicial Reform and Reorganization in 20th Century Iran: State-Building, Modernization and Islamization (New York: Routledge, 2008), P.232. 40 “Volunteer lay judges in criminal cases are denominated in German 'Schoeffen' or, if the person before the court is a young person (up to 17 years) or a juvenile (18 - 20 years) the denomination is ‘Jugendschoeffen’”. “What are called proposal lists are drawn up every 5 years by a local authority for lay judges in criminal cases and by the Youth Support Committee for youth lay judges, based on which a Lay Judge Selection Committee at the Local Court selects the lay judges for Juvenile and adult courts. Any person of German nationality, who on the day their duties are due to begin is at least 25 and not more than 69 years old, may be a volunteer lay judge. Specific criteria (being in a profession or job connected with the law, having a criminal conviction, being a declared bankrupt etc.) debar a person from serving as Magistrate. The person selected must accept the position.” "Lay judges sit in criminal cases in the courts of first instance i.e. in local (Amtsgericht) and Regional (Landgericht) courts and in appeal proceedings at the Regional court. In each event there are 2 lay judges sitting; in addition, depending on which court it is, there are 1, 2 or 3 professional judges.” Available at http://www.schoeffen.de/ lay-judges-in-germany.html (19 June 2017).

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nature of first cases in general criminal jurisdiction. However, there are variations in the use of lay judges from country to country. Some courts may have one person with expertise in the legal system, whose duty is to provide advice to laypersons on less serious issues or in arbitration hearings. The United States and the United Kingdom also use lay judges in their lower courts.41 They may provide opinions/decide on traffic violations, small civil claims, and other minor domestic matters. In any event, in the United States ‘the debate over lay judges continues. Little has been done of late either to put this debate to rest or to address the true issues. Much heat has been generated by courts and commentators, but, unfortunately, little light.’42 In the United Kingdom, there are certain conditions for the resignation and removal of lay justices. These are: (1) A lay justice may resign his office at any time. (2) The Lord Chancellor may [F1, with the concurrence of the Lord Chief Justice,] remove a lay justice from his office by an instrument on behalf and in the name of Her Majesty— (a) on the ground of incapacity or misbehaviour, (b) on the ground of a persistent failure to meet such standards of competence as are prescribed by a direction given by the Lord Chancellor [F2 with the concurrence of the Lord Chief Justice], or (c) if he is satisfied that the lay justice is declining or neglecting to take a proper part in the exercise of his functions as a justice of the peace.

At least two lay judges must hear the summary of a minor offence in the lower magistrates’ court in England. In the Chinese legal system, lay judges are used in its people’s courts and are known as assessors. Their function is to serve in serious criminal cases of first instance as adjudicators. These assessors are elected or temporarily asked to assist a court.

41

It is significant to mention here that, although the founding fathers of the United States of America fought for the independence of the country from the British colonial power, they continued the colonial common law tradition in the new American states. However, with some modifications, they entered the rights of individual citizens into the Constitution of the United States. Examine Allan Ashman and David L. Lee, ‘Non-Lawyer Judges: The Long Road North’ 53 (3) Chicago Kant Law Review (1977), pp.565-595. 42 Examine Allan Ashman and David L. Lee, ‘Non-Lawyer Judges: The Long Road North’ 53 (3) Chicago Kant Law Review (1977), pp.565-595, p.579.

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8.3. The Islamic Assessors In an inquisitorial criminal trial, all decisions are taken by joint vote by a certain number of judges and, sometimes, a small group of lay assessors who may be selected at random from the population. The Islamic court, however, relies heavily on the description of the opinion of the judge or judges, and assessors are rarely used for this task. The relevant judge realizes what is or is not realistic in the given situation. In a purely inquisitorial system without an Islamic basis, however, this process is considered one of the principles of the criminal trial. Therefore, the prosecution or the defendant does not have any right to question the lay assessors about their personal qualifications. Most often, the professional judges cast their vote after the lay assessors’ vote, so as to preclude any control over the lay assessors’ vote. To convict a criminal defendant typically requires a two-thirds majority; by contrast, the adversarial system principally requires a unanimous verdict. The difference between the Islamic inquisitorial system and other civil code systems is that the Islamic system requires a unanimous verdict most of the time, not a majority decision. Under Islamic provisions, judgment should be beyond any reasonable doubt. Due to the fact that a lay judge may not be completely familiar with the legal evidence or legal issues of a case, this may cast doubt on the outcome. This is primarily an issue in serious crimes.

8.4. Positive Role of the Judge One of the theories of the inquisitorial system in the civil code model is to represent the interests of the state in a trial. The Islamic inquisitorial system is supposed to represent the interests of the people. However, it does not follow this original idea in practice and is therefore similar to other civil code systems in fulfilling the rights and interests of the political authority. Thus, in an Islamic court, the method of jurisdiction is based on the judge whose function it is to discover the facts and the truth. ‘And do not mix up the truth with the falsehood, nor hide the truth while you know it.’43 Another verse says ‘And with truth have We revealed it, and with truth did it come; and We have not sent you but as the giver of good news and as a Warner.’44 The concept of truth in an Islamic court is linked to the positive role of the judge, including the moral concepts of honesty and 43 44

Q, 2:42. Q, 17:105.

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sincerity. The Quran then encourages man with the words ‘surely you are on an exalted morality.’45 Finding the pieces of the truth should be the main duty of the judge. In other words, the truth should be the aim of Islamic justice. A rewarding judgement is impossible where corruption is stronger than the love of truth. ‘Surely the creator enjoins the doing of justice and the doing of good to others.’46 It is the primary responsibility of the presiding judge to find evidence of all kinds, as necessary to resolve the given case. The role of the judge is not to be a passive recipient of information but to be a proactive participant. This principle is also respected in the civil law system. The judge of an Islamic court may therefore actively guide the proceedings regarding the exploration of evidence, including the questioning of the witnesses, the respondent, or the defendant. One may say that the judge should establish justice through the principles of true evidence, objectivity, clarity of vision, personal capacity, harmony, and the principle of non-contradiction with the existing body of international human rights law.47 All of this means moving toward pure morality and authentic evidence. In Islamic law, this is also encouraged by the principles of love for humanity and forgiveness.48 In the inquisitorial system, the individual rights of the accused are considered secondary to the exploration of the truth, whereas in the adversarial system, the individual rights of the accused come first. Still, at the heart of the legal structures of both systems is the same idea of protecting the rights of the individual. In a truly Islamic inquisitorial system, however, the rights of the accused and those of the victim are equal, and the judge is responsible for respecting both parties. Neither prosecutor nor judge should give priority to one party and ignore the other. The reality varies, however, from case to case and depending on the influence of many factors. This is one of the weaknesses of the Islamic inquisitorial and semi-adversarial method. The law in practice does not follow, and one may even say that it almost never has, the core theory of the law, which requires striking a balance between written norms and practical norms. That is why the weak party is almost always punished for a minor violation whereas the strong party enjoys impunity. 45

Q, 68:4. Q, 16:90. 47 For the principles of human rights law within the system of international law see Javaid Rehman, International Human Rights Law (London and New York: Longman Pub Group, 2 end, 2010). 48 See chapter nineteen. 46

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One may come to a similar conclusion about the theory of prosecution and punishment in the ICC or any other international criminal tribunal. As we will see, the Court has proven to be highly political, and the short history of its establishment bears witness to this fact. All those who have been prosecuted and punished have come from nations in which major political players have used wars as a tool to achieve certain goals. Although the role of judges of international criminal courts in the investigation of given cases has been positive, they have been capable of prosecuting only those listed by the permanent members of the Security Council. Therefore, none of those who have come under the jurisdiction of an international criminal court have come from the big political players.

8.5. The Passive Role of Attorneys Although the supremacy of the law, judicial impartiality, and limited sovereignty are three core principles of Islamic law, they are, in reality, being restricted by those in power. In Islamic law and, ultimately, under its jurisdiction: it is within the jurisdiction of the judge to make an effort to settle a dispute without recourse to law by advising, guiding and remaining the parties of their duties. Such advising, and conciliation often proves decisive and the matter is settled mutually. However, when such attempts fail, then the matter will be decided according to law.49

The position of attorneys in the inquisitorial system is more passive than in the adversarial system. It is more of a secondary role, suggesting routes of inquiry for the presiding judge, tempering the questions of the judge, and formulating their own questions. The questions laid down by the attorney are abbreviated, because it is the judge who drafts and asks certain questions while the attorney is responsible for giving an appropriate answer. In the Islamic legal system, attorneys have similar responsibilities as in other countries. Their main functions are to present evidence and convince the judge by means of various arguments. However, the court’s final decision should rest on its own judgment. For this reason, the attorneys ought to lead the case by means of Islamic argumentation and should therefore be familiar with Islamic rules. In other words, dealing with Islamic legal cases and making arguments based on the basic principles of international human rights law or any other international criteria may not 49 Lost. My sincere apologies to the author of the passage. However, I have quoted with the hope to get the advantage of h/his permission.

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be recognised as being as convincing as in the Western legal system. Ultimately, Islamic lawyers are generally restricted to the basic principles of Shariah, which includes the Quran, Sunnah, Ijma, and fatwa. It is a general principle of justice in any legal system, whether inquisitorial, adversarial or hybrid, that a lawyer be an honest lawyer. A lawyer is not a lawyer if she does not realise that her elegance of knowledge is not based on her income, occupied position, academic institutions, orations or degrees.50 Knowledge of law is not knowledge of law if it cannot understand that the law does not search for a lawyer with the knowledge of its laws, but one with the knowledge of its substance for morality of justice and for the reason of love of justice.51 As Plato asserts, justice is “one’s capacity to think rationally and to be able to follow proper reasoning based on superior knowledge.” These principles are in place in order to find a way to lay an end to most reasons that are the basic source for the commission of grave violations of the system of international criminal human rights law. 52

One may assert that there is a recent tendency in the practice of Islamic lawyers towards the implementation of the Western legal system. They wish to have freedom to make references to all other international legal disciplines that may be useful to the relevant case under investigation. The real Islamic law is not against any particular legal system, but there are a number of scholars demanding the contrary. The new orientation is very restricted in Islamic countries, however, and many lawyers have lost their title or position because of references to other international legal material under the influence of the Islamic authorities in power. Examples are the positions of a considerable number of Persian lawyers under the authoritarian regime of Iran. There may be attorney generals who give legal advice to the relevant Islamic governments. However, their real mission should be to serve all the people of their country. Any legal advice to a government or court, should still correspond to Islamic regulations, with sufficient consideration for safety, security, impartiality, fairness, and maintaining the principles of justice.

50

Thomas L. Shaffer, ‘The Legal Ethics of Radical individualism’ 65 Texas Law Review (1997), 963-70. 51 Examine Thomas L. Shaffer, ‘The Legal Ethics of Radical individualism’ 65 Texas Law Review (1997), at 963-91. 52 Farhad Malekian, Judgments of Love in Criminal Justice (Germany, Springer: 2017), p.101.

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8.6. The Length of Trial The length of a trial in an inquisitorial system differs from case to case and may even be more than one year. However, typically, it takes the judge or the prosecutor several months to collect all necessary documents, evidence, and witnesses relating to the case, based on a series of hearings about the scenario. It is similar in Islamic legal systems, with the difference that, within Islamic legal systems and contrary to Western legal systems, a case may take some months or even several years, depending on its nature. The latter occurs when the case is of a political nature, and it may never even come to court, depending on the development of political relations. In countries with a supreme authority, it is the authority who decides on the disposition of a given political case in certain sensitive cases. The Rules of Procedure and Evidence at the ICTY, ICTR, and Special Court for Sierra Leone include a considerable number of principles borrowed from the inquisitorial tradition. Although a rule of procedure may have a civil law or common law origin, it is neither the inquisitorial nor the adversarial procedure that effects a fair and expeditious trial. Rather, the requirements for a fair and expeditious trial are the substantive rights of the suspect. A trial may proceed expeditiously but may seriously violate the principles of justice and, consequently, the rights of the suspect may be ignored. There is, in fact, a relationship between the crossexamination of witnesses, expeditiousness, and the implementation of a fair trial. Moreover, a prosecutor has a recognised duty to provide equal treatment. For instance, within the framework of adversarial proceedings, the prosecutor is entitled to equality of treatment. The Pre-Trial Chamber I of the ICC, with reference to the jurisprudence from the European Court of Human Rights, maintains that ‘the right to adversarial proceedings means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed even by an independent member of the national legal service, with a view to influencing the court’s decision.’53 53 Situation in the Democratic Republic of Congo, Decision on the Prosecutor’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Application for Participation in the Proceedings of VPRS1, VPRS 2, VPRS 3, VPRS 4, VPRS5 and VPRS6, ICC-01/04-135-eng, 31 March 2006, note 52, citing ECHR judgments in: Morel v. France, Judgment of 6 June 2000, Application No. 34130/96, para.27; Uldozotteinek Szovetsege and others v. Hungary, Judgment of 5 October 2000, Application No. 32367/96, paras.39-42.

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The legal bodies of international criminal tribunals, however, have certain rules concerning a fair and expeditious trial. For instance, the Statute of the ICTY has certain rules dealing exclusively with delay and fairness. Article 20(1) of the tribunal provides: ‘Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’ Likewise, Article 21(2) provides: ‘In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to Article 22 of the Statute.’ Furthermore, Article 21(4) provides that ‘in the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (c) to be tried without undue delay.’ Obviously, an Islamic international criminal court should also recognise the need for special protection of suspected, accused, or condemned persons due to their particular situation. The protection of the rights of the accused is also guaranteed in the Statute of the ICC. In Islamic law ‘everything should be decided …justly.’54 And the God ‘has commanded justice.’ The practice of Islamic law says ‘if an adversary whose eye had been blinded by another comes to you, do not rule until the other party attends. For perhaps the latter had been blinded in both eyes.”55 Article 64 of the Statute reads that ‘The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’56 Yet, concerning appeal against other decisions of either party in accordance with the Rules of Procedure and Evidence, the Statute of the ICC goes even further. It ensures that ‘a decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.’57

54

Q, 10:47. Mohammad Hashim Kamali, ‘The Right to Personal Safety (Haqq al-Amn) and the Principle of Legality in Islamic SharƯah,’ in: Muhammad Abdel Haleem/Adel Omar Sherif/Kate Daniels (eds.), Criminal Justice in Islam – Judicial Procedure in the SharƯah (New York: Palgrave Macmillan, 2003), pp.57-96, at 83. 56 Article 64 (2). 57 Article 82 (d). 55

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One of the significant functions of the Trial Chambers is to ensure trials that are both expeditious and reasonably fair. In other words, the right to a fair trial also means the right to an expeditious trial. The ICC Appeals Chamber observes that ‘Expeditiousness is ...an independent and important value in the Statute to ensure the proper administration of justice, and is therefore more than just a component of the fair trial rights of the accused. For this reason, article 64 (2) enjoins the Trial Chamber to ensure that the trial is both fair and expeditious.’58 The Chamber goes even further and states that ‘an expeditious trial is beneficial to victims. It ensures them of receiving justice and of going on through a healing process quickly. For witnesses, it relieves them as soon as possible of the anxiety of having to appear in court to give evidence. Unreasonable delay in commencing or finalising a trial may also diminish public interest and public support for, and cooperation with the Court.’59 Thus, certain provisions have been created in statutes to ensure the quality and fairness of the proceedings in international criminal courts, with the intention of reviewing proceedings in order to foster the expeditious hearing of cases. Therefore, the international courts are permitted to take measures necessary to prevent any decision or action that may cause unreasonable delay.

58

Prosecutor v Katanga and Ngudjolo, ICC - 01 - /04 - 01/07, Judgment on Unlawful Detention and Stay of Proceedings (12 July 2010), at para. 47. 59 Id. para. 45.

CHAPTER FIVE SHARIAH NEIGHBOURING ADVERSARIAL JUDGMENTS

1. Roots of Adversarial Systems ‘I love children. They are content with the least of things, gold and mud are the same in their eyes.’1 Adversarial judgment is like playing with mud, with the hope of reaching the right result. The adversarial system is more prevalent in common law systems. The common law system is a development of a set of traditional laws, a system first practised in England in approximately the 12th century. The term “common law” denoted a collective body of laws known or common to the whole kingdom.2 This meant the relevant laws were applicable to all territories under the sovereignty of the kingdom, and each individual community followed these common rules of law. The common law was not actually made up of codified rules that had been drafted and adopted by legislators but of rules that had been accepted through usage. The common law was therefore the consequence of

1

The second source of Islamic law. Still, as it is indicated the common law system was deeply influenced by the Islamic legal system, taken from its influence in Sicily or directly from the practice of Islamic law. “This evidence of the contact which King Henry II had with Islamic administration in Sicily strongly suggests an Islamic influence. The remarkable similarity in nature between the English and Islamic actions for recovery of land, when contrasted with the marked difference in Roman law, suggests one avenue where that influence may have materialized. In the absence of direct evidence of such influence more cannot be said at this juncture, but perhaps, as we begin to lift our eyes from the glories of Roman law to the glories that lay beyond, we may come to realize the tremendous impact which Islam and its legal system must have exercised on the West.” John Makdisi, ‘An Inquiry into Islamic influences during the Formative period of the Common Law’ in Nicholas Heer, Islamic Law and Jurisprudence (London: University of Washington Press), pp. 135-146, at 146.

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decisions of each individual court, which described the way in which they judged the relevant case and other cases with similar characteristics. This development led to the creation of a body of laws applicable to the entire population of England. Still, the decisions of courts were not their own conclusions but conclusions based on usage prevailing in the given society. The non-existence of judicial precedence in the world and the lack of this precedent were even stated in connection with the Nuremberg Tribunal jurisdiction and judgment and its comparison with common law systems: It is true, of course, that we have no judicial precedent for the Charter. But International Law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some State. Unless we are prepared to abandon every principle of growth for International Law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened International Law. International Law is not capable of development by the normal processes of legislation, for there is no continuing international legislative authority. Innovations and revisions in International Law are brought about by the action of governments such as those I have cited, designed to meet a change in circumstances. It grows, as did the Common Law, through decisions reached from time to time in adapting settled principles new situations. The fact is that when the law evolves by the case method, as did the Common Law and as International Law must do if they are to advance at all, it advances at the expense of those who wrongly guessed the law and learned too late their error.3

In abstract terms, the term “law” in the modern system is itself principally controversial. By the term “law,” the civil law systems of Europe mean something different than the capitalist systems of the Anglo-American countries. For a Communist, the notion of law simply means an order issued by those in power with strong legal authority, apparently legitimized by the labouring classes of society. The scope of the term “jurisprudence” is widely disputed, and there are certain systems of jurisprudence where the judge has the power to define or interpret the term “law” vis-à-vis the scope of its application and attribution due to a particular framework and polity. Thus, there are a 3

Nazi Conspiracy & Aggression, Volume I, Chapter VII, Office of the United States Chief Counsel for Prosecution of Axis Criminality, United States Government Printing Office, Washington, 1946, p.166.

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considerable number of different systems, be they functional, sociological, teleological, analytical, moralist, positivist, or imperative, which variously define the corpus of the law. In the following sections, we will demonstrate many variations of the law.4 Although the Islamic criminal law system is not based on common law and Islamic law consists of two branches, i.e., Sunni and Shia, this does not necessarily mean that each branch of law has not contributed to some type of case law consideration in its field and its effect in a given case.5

2. Common Law The system of common law may be defined in various ways.6 Common law is generally the method of procedural rules and substantive law created by judges in the process of deciding cases. The rules may therefore multiply from case to case and slowly create a system of regulations that paves the way for other cases to follow. It is therefore the result of 4

According to one writer “Islamic law has not evolved through jurisprudence as in the case of other legal systems, particularly common law, nor has it developed a tradition of codification as existed in the Romanist/Civilist systems.” M. Cherif Bassiouni, The SharƯah and Islamic Criminal Justice in the Time of War and Peace (Cambridge University Press, Cambridge, 2014), p. 43. 5 Id. 6 Consult A. W. Brian Simpson, Leading Cases in the Common Law (Oxford: Oxford University Press, 1996); Kent Greenawalt, Statutory and Common Law Interpretation (Oxford: Oxford University Press, 2013); Oliver Wendell Holmes Jr, The Common Law (Boston: Little, Brown, 1923); Roscoe Pound, The Spirit of the Common Law ( Publisher: Francestown, NH. Publication year, 1921); R. C. van Caenegem, European Law in the Past and the Future: Unity and Diversity over Two Millennia (Cambridge: Cambridge University Press, 2001); P. S. Atiyah, Robert S. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Oxford: Clarendon Press, Oxford, 1991); Richard A. Posner, Law and Legal Theory in England and America. Contributors (Oxford: Clarendon Press, 1996); William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, NC: University of North Carolina Pres, 1996); W. M. C. Gummow, Change and Continuity: Statute, Equity, and Federalism Contributors (Oxford: Oxford University Press, 1999);T. R. S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford: Oxford University, 1994); Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh: Edinburgh University Press, 1993); Reinhard Zimmermann, Daniel Visser, Southern Cross: Civil Law and Common Law in South Africa (Oxford: Clarendon Press, 1996).

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judgments or court decisions and other similar tribunals also known as case law. Beside its inquisitorial method, the Islamic system also has a tendency towards case law, similar to common law systems, in the sense that the rules of Islamic law also increased from case to case and became a practical reason for the development of the law and a new interpretation of the inquisitorial method with adversarial tools. Thus, a judge may reach her/his final decision by assessing and evaluating prior decisions, which ultimately creates a process of development in Islamic law. Similarly, in adversarial or common law systems, rules are not created through legislative statutes or executive mechanisms but are mostly developed under case law. The system exercised in the U.K. is mostly adversarial and sometimes inquisitorial, whereas the system applied by most Islamic systems is the opposite. In other words, there is a trend in both legal systems to approach the other legal system but only to a limited extent. In addition, substantive law in the U.K. and other similar jurisdictions rests widely on the law prevalent in the country at issue. It implies that similar facts, reasons, or objections should be dealt with similarly if they occur again. This is what the Islamic system of jurisdiction does as well. The common law court analyses a preceding case analogous to the one at hand and is therefore obliged to follow the judgment, verdict, ruling, or outcome of the preceding case. While the Islamic system may follow the same method in specific situations, the Islamic judge is not bound to apply prior jurisdiction in as similar a way as possible, but may use it as a model for her/his conclusion. The Islamic judge has a more open hand, which may be called a semimethod of adversarial legal obligations of the judge. In both systems, i.e., the common law system and the Islamic legal system, there is the possibility, however, that the judge will find that there has not been any similar case in the past; in this case, the judge is asked to create law by precedent. This is called ghias in Islamic law. However, in creating a new definition of the law, the Islamic judge must take sufficient precautionary measures. In common law systems, the creation of a law is a recognised duty and authority of the judge. The United Kingdom has mostly exercised this method of developing laws and regulations.

3. Jury or No Jury When a jury finds a defendant not guilty, reasons should be provided such as accidental death, self-defence, fault in the indictment, pleading half-

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guilty, non compos mentis, no prosecutable evidence, and guilty but insane. Obviously, adversarial justice implies common law systems. The entire theory of justice rests on case law, and the case law is developed by the final decisions of professional judges. Both sides in a case have the opportunity to bring their arguments equally before an impartial judge in order that s/he may hand down a decision. Her/his decision is binding. In all cases (including those of Islamic jurisdictions), however, it is not only the judge who decides on the final disposition. The other factors may vary, depending on the case. In the U.K, for example, impartial umpires may be judges, magistrates, juries, or chairs of tribunals. Thus, if it seems necessary in a case, the decision may rest on a combination of all these umpires.7 In the Islamic system, the difference is that many other factors may play a decisive role in the decision of the judge. In a sensitive case, a decision may be rendered based on the security, expediency, and value of the case for Islamic policy. In the common law system, a judge and sometimes a jury are duty bound to hear all the evidence put forward by each side. The evidence has to be combined with legal arguments. Put this way, judge and jury have to weigh every item of evidence that is presented and decide which of the opposing parties has shown the most logical argumentation or proof. In a criminal case, it is typically a judge who decides on the sentence, regardless of whether there is a jury or not. For instance, in the United States criminal courts, the jury decides on guilt or innocence, and the judge on the length of sentence, i.e., how many years a person who has been found guilty will be imprisoned. It is certainly true that the common law system does not rely on Islamic jurisdiction; nonetheless, the Islamic system also supports the party with the most logical argumentation or evidence. This is the basic philosophy that an Islamic judge should take into account when rendering the sentence. Normally, in the common law system, when a trial draws to a close in non-Islamic systems and the hearings have been held, the judge or jury consider and listen to the summary of the case by each conflicting party. The presence of a jury in a case creates the legal responsibility for the judge to present her/his own summary concerning the subject of the case, which has to be presented to the jury. The judge should carry out the entire 7

Examine Peter King, Crime, Justice and Discretion in England, 1740-1820 (Oxford: Oxford University Press, 2000); J. M. Beattie, Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001); D. Bentley, English Criminal Justice in the Nineteenth Century (London: Bloomsbury Academic, 1998).

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process of prosecution before submitting her/his own summary to the relevant section of the court in which the case will be discussed for delivery of the final verdict. In civil cases, if the jury reaches a guilty verdict, the members of the jury are normally permitted to leave and the judge will decide on the level of punishment or compensation. There is not much to say about the position of the jury in the Islamic system – as the jury does not exist. This means Shariah courts, which are distinct from other legal methods in the world, do not have a jury or adjudicators who act on behalf of society. As we have seen elsewhere, crimes against God are put on trial by the state under the concept of Hudud offences. All other criminal offences, however, including murder and bodily injury, are identified as disputes between individuals, with an Islamic judge delivering his judgment based on Shariah - fiqh. These are, inter alia, Hanafi, Maliki, Shafi’i, Hanbali and Jafari, constituting an integral part of divided Islamic jurisdiction.8 There are no references to a jury in any of the procedures of investigation of these offences. In certain cases of religious value, however, several religious authorities may decide; this is not the same as a Western jury, but it is a collective consideration of the case by religious authorities in order to come to a final decision. Their decision may, however, be authoritative for other similar cases and open or close potential new interpretations. If a case is not criminal but civil, juries may occasionally be called on to set the amount of compensation. This varies from country to country and the practice of the court. The parties to a case may express different opinions regarding the verdict. In that case, they may ask the court for leave to appeal to a higher court. The higher court reviews the basic elements of the case with a new judge or judges who are members of the bench. This adversarial system may, depending on the merits of the case, continue to the highest court in the relevant country. It may also lead to constitutional questions. As long as there is no new evidence, the highest court has the final word.

4. Leading Principles The common law was and is generally based on several core principles that are the principal guidelines for the whole system. These principles may include the co-existence of individuals’ rights, state rights, proving the presumption of innocence or guilt without any reasonable doubt, the 8

See also infra.

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significant function of judgments and precedents, the co-existence of case law with statute law or a constitution, punishment of crimes, and compensation of civil wrongs. The leading principles of common law are not necessarily exclusive to the adversarial system; they can also be found in the inquisitorial system. The civil law system is also obliged to have such leading principles, which are the basis of human rights law. However, one immaterial difference is that they are applied in two different ways with similar ambitions. The Islamic system of justice is the same. One does not find such a large difference between the two legal systems. Islamic law is based on religious codes and case law and even these religious codes are being modified or should be modified by a positive and modern deduction of Shariah law. The Quran emphasises the value of the principles of justice and equality between all nations and states in a considerable number of articles. According to its content, international justice cannot be achieved if groups and individuals do not have equal rights and obligations. It is on these two important principles, justice and equality, that the entire concept of Islamic law has been developed. The Quran highlights that “God does not guide those who are unjust.”9 The source goes further and states that “God does not forbid you from being kind and acting justly towards those who did not fight over faith with you, nor expelled you from your homes. God indeed loves those who are just.”10 Furthermore, it is also stated that “It may be that God will create love between you and your enemies. God is all-powerful, and God is forgiving, ever-merciful.”11 One may strongly assert that, if Islamic law is correctly applied, justice is the leading principle. But the reality is that it is not fully respected. For instance, the main source of Islamic law maintains the following: We sent Our Messengers with the Clear Signs and sent down the Book and the Balance with them so that mankind might establish justice.12 Say: “My Lord has commanded justice…”13 So call and go straight as you have been ordered to. Do not follow their whims and desires but say, ‘I have man in a Book sent down by God and I am ordered to be just between you. God is our Lord and your Lord. We 9

Q, 2:258. The Q, 60:8. 11 The Q, 60:7. It reads that “He only forbids you from making friends with those who fought over faith with you and banished you from your homes, and aided in your exile.”, The Q, 60:9. 12 Q, 57:25. 13 Q, 7:29. 10

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have our actions and you have your actions. There is no debate between us and you. God will gather us all together. He is our final destination.’14 Among those We have created there is a community who guide by the Truth and act justly according to it.15 Those with faith, those who are Jews, and the Christians and Sabaeans, all who believe in God and the Last Day and act rightly, will have their reward with their Lord. They will feel no fear and will know no sorrow.16

Like the common law systems, Islamic courts are obliged to respect individuals’ rights just as much as states’ rights. They must give sufficient respect to the presumption of innocence and guilt must be proven without any reasonable doubt. As an established principle, the significant function of judgments and precedents is an integral part of the Islamic legal system. A court judgment should not be against the principles of the constitution. In addition, compensation for civil wrongs constitutes a significant strategy within the Islamic system. One of the serious problems, however, is the application of criminal punishments, which may violate the fundamental rights of human beings established by the instruments of international human rights law.

5. Criminal Cases Criminal cases are presented much more strictly in common law systems. There are two opposing parties. One is the prosecution. There is a prosecutor who officially represents the state. The other party is the defence. The duty of the defence is to represent the accused person. In civil trials, the plaintiff brings a complaint against another person or entity sometimes known as the respondent but mostly as the defendant. In most common law countries, the function of the defendant is very significant for the case. In some cases, where the defendant is unable to access the court system and requires legal representation, s/he receives legal aid. In order for the adversarial system to operate reasonably and prevent justice from being violated, the judge may appoint a trial lawyer, at taxpayer’s expense, to defend the accused if he or she cannot afford her/his own defence counsel. One of the characteristics of common law systems is that courts are not only responsible for establishing clear evidence in a case, but they are also responsible for arguing all the applicable legal precedents laid down 14

Q, 42:15. Q, 7:181. 16 Q, 2:62. 15

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by previous courts in similar cases. The prosecution and the defence lawyers use not only evidence relating to the case at hand but also previous cases as precedents or evidence concerning how they were treated and how they were resolved. Similarly, judges and juries are also responsible for examining the facts relating to the present case and any other matters related to the arguments in previous cases. As a result of this process, judgments in common law cases may take much longer than in civil law cases. The examination not only involves the evidence and witnesses of the current case but also the previous ones. Almost all legal persons involved in a case must take into consideration how the verdict was reached in the precedents to their own case. Although the Islamic legal system is inquisitorial in nature, the legal character or some of the procedures of the adversarial legal system can easily be seen in its composition. Judges are not bound by the previous case, but parallel conclusions are always drawn in the outcome of the case. Certain legal argumentations under Islamic theory are so sensitive and decisive that they affect other similar cases brought before the jurisdiction of Islamic courts. In addition, analogies to early Islamic law or to the judgments of Islamic judges has become legal routine. This is the reason why, in most theological and juridical analyses, reference may be made to the manner, decisions, and judgments of the Prophet of Islam. As such, Islamic law does not rely only on the inquisitorial legal system and is a system that has one of the most significant or secondary sources on the practices and judgments of its Prophet. This is also confirmed in the first source of Shariah. For example, it reads as follows: You have an excellent model in the Messenger of God, for all who put their hope in God and the Last Day and remember God much.17 God showed great kindness to the believers when He sent a Messenger to them from among themselves to recite His Signs to them, purify them and teach them the Book and Wisdom, even though before that they were clearly misguided.18

There are many similar verses in the original source reminding the Islamic nations to follow the “saying” and the “manner” of their messenger. In

17 18

Q, 33:21. Q, 3: 164.

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another code, the Holy Book emphasises the high value of judgments by the Prophet by stating the following: We have sent you bearing witness, bringing good news, and warning so that you might all believe in God and His Messenger as well as honour, respect, and glorify Him in the morning and the evening. Those who pledge their allegiance to you pledge allegiance to God. God`s hand is over their hands. Those who break their pledge only break it against themselves. But as for those who fulfil the contract they have made with God, We will give them an immense reward.19

The Quran goes even further and insists that cases relating to the Prophet’s judgments are valuable and should not be ignored by Muslims in similar situations. This definitely indicates that one of the basic principles of the common law system is also encouraged by the Islamic method of jurisdiction. This is based on the fact that previous cases may be interpreted, adopted, or adapted by a common law judge and even that the attorney or legal representative may make reference to earlier cases and judgments in the defence of her/his client. The original source of Islamic law then emphasises that the believers are: … those who follow the Messenger, the unlettered Prophet, whom they find written down with them in the Torah and the Gospel, commanding them to do right and forbidding them to do wrong, making good things lawful for them and bad things forbidden for them, relieving them of their heavy loads and the chains that were around them. Those who believe in him, honour and help him, and follow the Light that has been sent down with him are successful.20

One may therefore draw a positive conclusion that there are certain similarities between the Islamic theory of interpretation of case law and the interpretation of the same law in the common law system.21 This is particularly evident in the case of procedures of international criminal courts. Although they appear to be different, in reality they are not, and the difference between the two legal systems, i.e., the International Criminal Court and an Islamic international criminal court, is not that great.

19

Q, 48: 8-10. Surat al-A’raf: 157. 21 Farrar Salim, The Role of the Accused in English and Islamic Criminal Justice (University of Warwick: School of Law, Disertation,1999), pp.305-6. Available at http://wrap.warwick.ac.uk/36414/ (visited on 1 March 2017). 20

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Even the drafting “history shows that the States were fully aware of differences in legal cultures and the difficulties that domestic legal systems may face in investigating and prosecuting the ‘most serious crimes of concern to humanity.”22 Therefore, ‘the task imposed on the Court is to find the appropriate balance between respecting the sovereignty of States and ensuring an effective Court, within the framework of the overarching common goal of the Court and the States, which is to fight impunity.’23 International courts, the ICC and the notion of an Islamic international Criminal Court can work the same way and to the same degree, with the difference that one is already established and the Islamic court is hanging itself at the gates of the ICC and its state members to accept the situation. Both are looking to prevent impunity. The ICC is, in fact, as we will later see, a combination of civil and common law disciplines, which makes the situation of the legal system much more practical in the world of different civilisations.

6. Powers of the Judge The adversarial system is entirely different from the system used by most European countries or continental jurisdictions. The duties of judges in adversarial systems are, generally speaking, to ensure proceedings are carried out in a fair and just manner according to the customs and the laws. Therefore, they mostly act as partial arbiters or as referees between the parties in the case. In the adversarial system, which is the predominant legal system in common law countries, the judge is legally permitted to interpret the constitution and the statutes, which are the result of parliamentary works. This is regardless of the fact that the constitution in a common law system is the supreme law and that judges should not modify its core provisions. Nonetheless, judges can interpret how the provisions of the constitution should apply in practical circumstances. This power of the judge is particularly evident in countries whose policy has a more democratic 22

Case: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi Situation: Situation in Libya, Dissenting Opinion of Judge Anita Usacka Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi" (ICC-01/11-01/11-547-Red), (21 May 2014) Appeals Chamber, Judgment, para.57, 25/30. Available at https://www.icc-cpi.int/Pages/record.aspx?docNo= ICC-01/1101/11-547-Red (visited on 2 March 2017). 22 Id. 23 Id. See also paras.59, 61, and 62.

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approach to legislation. A court may conclude that the legislation drafted and adopted by a parliament is unfair because it violates other significant constitutional rights of citizens. A Supreme Court may also state this in its case law. Parliament eventually has a duty to re-examine provision(s) ruled unconstitutional, which may ultimately require the modification or even full abolition of a law in order to uphold the constitution. If parliament fails to take a court’s decision into consideration, the application of the relevant statute will not be successful. By comparison, in an Islamic legal system, legislation cannot be successful if it does not work in practice. Yet, the Islamic legislator has to take into serious consideration the consequence of the prior law. It is the same in Scandinavian countries. For instance, the Swedish parliament acts, inter alia, in response to courts, judges, prosecutors, and those who asses/evaluate the provisions of a legal system. This hidden power of a judge in a common law system means that the legislation by a parliament does not have to clarify every possible position that may surface in the application of the law. The legislation often mentions general principles and sets a certain limit. For instance, it may set the maximum sentence an offender may face. The legislature leaves it up to the courts to determine what the statutes and common law precedents really mean. It also means that the hands of a judge are open for both a wider or a stricter application of the law or statute. In the final stages, however, the judge may give her/his final understanding of the corpus of the law. Although the provisions of criminal law bind a judge in an inquisitorial system of jurisdiction, in a common law system, the judge is bound by a thorough case-to-case understanding of hypothetical legislation. This theoretical or hypothetical norm broadly exists as legislation, yet not according to the norms of the civil law system but instead according to the quantity and quality of case law. None of the judges in either system has the power of injustice. In other words, the vocabulary of criminal justice has to be justice. This is regardless of whether an inquisitorial system, adversarial system, or Islamic system and its sources is concerned in practice. Still, in the Islamic legal system, like in the common law system, violations of case law by the judge may not only make him responsible to the public but also make the state responsible for violations of case law by the judge. Therefore, in certain judicial crises, there is a strong tendency in Islamic criminal jurisdiction to use the common law system or the adversarial method.

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In other words, Islamic criminal law ‘supports any procedure that advances the cause of justice and fair treatment and does not, in the meantime, violate considerations of public interest, maslaha. Siyasa shariyya is itself predicated on maslaha, and is such changeable, as it must respond to the exigencies of time and circumstance and cannot, as it were, be entirely predicated and legislated in advance.’24 The conclusion is that even ‘if the board outlines of siyasa shariyya on criminal procedure were to be codified, the head of state and judge would still be left with a measure of discretionary powers under siyasa shariyya, which they may utilize in response to exceptional and emergency situations that cannot be adequately dealt with under the normal rules of the Shariah.’25 Islamic legal theory goes even further and asserts, “When the State violates the rules of the Shariah, as based upon a principle of human rights, it is a duty to disobey such a state authority or government.”26 The intention is to create security for the protection of the law within the legitimate Islamic system. In other words, the purpose was not only to apply strict codes but to support human rights, justice, and the understanding of social needs in order to encourage just and peaceful actions. This is why the Islamic judge may be a religious leader or a public teacher. This also means that, at all times, a certain amount of practical knowledge is needed in order to be recognised as a judge.

7. Witnesses in Adversarial Systems 7.1. Process of Hearing Witnesses from both sides can be called on and examined by different methods as much as the prosecution and defence consider necessary to find the truth. Both parties are allowed to present their case as they consider necessary. Nonetheless, the proceedings and the investigation must be in accordance with the rules of the law. Normally, hearings with witnesses and any other evidence will be taken into consideration and, ultimately, the advocates with the more authentic and logical argumentation and the best representative of her/his client wins the case. 24

Mohammad Hashim Kamali, ‘The Right to Personal Sagety (Haqq al-Amn) and the Principle of Legality in Islamic SharƯah in Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the SharƯah (New York: I. B. Tauris, 2003), pp.57-96, at 91. 25 Id. 26 p.59.

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In the adversarial system, witnesses are as important as in the civil law system. Both sides may bring witnesses before the court to testify and provide pertinent information. The witnesses are typically questioned by means of different tools of justice such as by lawyers, prosecutors, or even the judge. They are also cross-examined by the opposing lawyers. It is the duty of the magistrate and judge to ensure that both sides have the opportunity to present their case equally. The concept of crossexamination creates trust in justice and encourages the presentation of the truth.27

7.2. Witnesses As a mixed/adquisitorial legal system, the Islamic criminal system also puts a heavy emphasis on witnesses, who may represent either side of the conflict, including the accused. Still, there are several conditions for a person to be a witness under Shariah, which have undergone many modifications. Two such conditions, which were controversial in Islamic law at the time of its creation, are the testimony of women and of slaves. The legal procedures in such cases have been different and undergone many transformations throughout the centuries. Concerning the testimony of women, the rule that two female witnesses are equal to one male witness is an institution that has been practically abolished, although it is still exercised under the jurisdiction of some Islamic states.28 There is no rule in Islamic law that says a woman’s testimony is worth half of that of a man, this is rather the consequence of wrongful interpretation of Shariah rules.29 ‘The Holy Quran has at more than one place made it plain that in regard to moral and spiritual development, men and women stand on a level of perfect equality.’ Hence, it indicates that ‘there are no limits to the moral progress of a woman as that of a man.’30 Similar views are expressed in the Quran. ‘Men have the benefit of what they achieve and acquire and women shall have the benefit of that which

27

A cross-examination commonly refers to the quality of evidence produced by the witness testimony. It means assessment or evaluation of the trustworthiness of witness testimony already given to the court. This is in order to ensure, prove or reject, partly or entirely, the witness’ knowledge, credibility or reliability. All of this involves the assessment of the witness’ competence. 28 Like Iran, Afghanistan, Suadi Arabia. 29 See the relevant section. 30 Mohammad Mazheruddin Siddiqi, Women in Islam (Delhi: Adam Publishers & Distributors, 3ed, 1984), p.17.

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they similarly achieve and acquire.’31 Similarities between men and women concerning religious duties are also stated in the Quran: The believers, both men and women, are allies of one another. They enjoin good, forbid evil, establish Prayer, pay Zakah, and obey God and His Messenger.80 Surely God will show mercy to them. God is All-Mighty, All-Wise.32 God has promised the believing men and believing women Gardens beneath which rivers flow. They shall abide in it. There are delightful dwelling places for them in the Gardens of Eternity. They shall, above all, enjoy the good pleasure of God. That is the great achievement.33

Consequently, the major reason why the testimony of a woman is not considered equal to that of a man is a question of culture, and these cultural influences have been so strong and powerful that neither Islamic law nor the ongoing development of civilisation has been effective in changing this culture. Islamic law has endeavoured to bring about cultural understanding, but it is still a question of enlightenment within some cultures. Nevertheless, there are many reasons for the abolition of these institutions. They may be the growing equality between men and women in the Islamic world and the adoption of a considerable number of international conventions dealing with the rights of women in general. The question is also how Islamic law can forbid the killing of a female or male child but at the same time provide a different level of integrity for both genders. How is it possible that the same law bestows on them different levels of value but enters them into heaven as equals. This means Islamic theory, Mohammad’s teachings, and the entire philosophy of Islamic law were acting within the framework of criminological law or that the Prophet was a criminologist who had to enlighten the Arab populations about their own culture; had he stated rules against the basic rules of Arab culture, he would have been condemned to death.34 31

Q, 4:32. Q, 9:71. 33 Q, 9:72. 34 This is the same in the Bible. This is because the Bible was written in a way so as not to contradict the prevailing culture, custom including the stoning of women as punishment. For instance, the statement in Deuteronomy 22:13-21is naturally unjust and against the integrity of woman and established the superiority of man. It says that If a man takes a wife and, after sleeping with her, dislikes her and slanders her and gives her a bad name, saying, ‘I married this woman, but when I approached her, I did not find proof of her virginity,’ then the young woman’s 32

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The hope of the entire theory was that Muslims should slowly realise that Islamic theory means full equality between all races and the two genders. The main theory of Islamic law maintains that “whoever does good, whether male or female, and he is a believer, these shall enter the garden.”35 Moreover, ‘on the whole, the Holy Quran regards men and women as complementary to each other, one sex making up what the other lacks.’36 The question has also been whether a slave can be a witness in criminal cases for or against her/his owner and whether the testimony of a female slave is legally valid. These questions were very significant at the time of the revelation of Islamic law, but this is no longer the case at the present

father and mother shall bring to the town elders at the gate proof that she was a virgin. Her father will say to the elders, ‘I gave my daughter in marriage to this man, but he dislikes her. Now he has slandered her and said, ‘I did not find your daughter to be a virgin.’ But here is the proof of my daughter’s virginity.” Then her parents shall display the cloth before the elders of the town, and the elders shall take the man and punish him. They shall fine him a hundred shekels of silver and give them to the young woman’s father, because this man has given an Israelite virgin a bad name. She shall continue to be his wife; he must not divorce her as long as he lives. f, however, the charge is true and no proof of the young woman’s virginity can be found, she shall be brought to the door of her father’s house and there the men of her town shall stone her to death. She has done an outrageous thing in Israel by being promiscuous while still in her father’s house. You must purge the evil from among you.’ 35 Q, 40:40. 36 Mohammad Mazheruddin Siddiqi, Women in Islam (Delhi: Adam Publishers & Distributors, 3ed, 1984), p.19. The French Nobel Prize winner, Alexis Carrel in his book Man the Unknown writes about the difference between man and woman with the following terms. ‘The differences existing between man and woman do not come from the particular form of the sexual organs, the presence of the uterus, from gestation, or from the mode of education. They are of a more fundamental nature. They are caused by the very structure of the tissues and by the impregnation of the entire organism with specific chemical substances secreted by the ovary. Ignorance of these fundamental facts has led promoters of feminism to believe that both sexes should have the same education, the same powers and the same responsibilities. In reality woman differs profoundly from man. Every one of the cells of her body bears the mark of her sex. The same is true of her organs and, above all, of her nervous system. Physiological laws are as inexorable as those of the sidereal world. They cannot be replaced by human wishes. We are obliged to accept them.’ Alexis Carrel, Man the Unknown (1935), pp. 84-87. Available also at https://archive.org/stream/ManTheUnknown/alexis-carrel-man-the-unknownpenguin-1948_djvu.txt (visited on 7 February 2017).

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time. Slavery is an abolished institution in Islamic law.37 This is because Islamic law has also witnessed the gradual abolition of slavery. In this context, one should also refer to Martin Luther King’s time, when the black population of the USA did not have equal rights í a question that has since been solved, however superficially. The social situation of African Americans in the United States is still not good in practice. Before the Civil War, the white population considered slaves and their testimony as having little technical or legal value. This has changed, as it did in Islamic law. I am not referring here to the former South African regime and its inhumane treatment of its black population during the apartheid period. Original Islamic law treated slaves as equals, which is why the entire theory of Islamic law encourages the abolition of slavery and recognises the duty of a Muslim to give freedom to slaves in all situations. According to authentic Islamic theory, all men are equal and have the same amount of integrity before their birth, after their birth, and after their death. The theory implies the fact that any classification of people as superior is artificial and has no value in the true jurisdiction of Islamic law. One testimony cannot be classified as being different in value than another. However, fighting against social and political power has never been easy in Muslim nations; it is the same in other nations. That is why the Court of the Star Chamber was established in the United Kingdom, with the sole intention of having the power to fight against various types of corruption in the system and most certainly to give full respect to the testimony of individuals without consideration of race or gender.

8. Advantages of Common Law One of the advantages of the common law system is that judges deal with numerous questions of law, which means they have to make decisions and interpret the law. This is one of the virtues of the adversarial system. It has to be adaptable to handle different circumstances and need not wait for the formulation of rules by the government. This flexibility encourages wide interpretation of the law and develops rules of law as well as legal personality. In the inquisitorial system, however, judges interpret the law, but they are normally limited in their understanding and have to follow the 37

For some analysis see David F Forte, Studies in Islamic Law: Classical and Contemporary Applications (Austin and Winfield, 2000); Bernard K Freamon, ‘Slavery, freedom, and the doctrine of consensus in Islamic jurisprudence,’ 11 Harvard Human Rights Journal (1998), 1-64.

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limitations the relevant law provides. For this reason, modification of law depends on a long process of examination and whether a government considers the modification of certain laws or the adoption of certain foreign regulations into its system, regardless of its ratification of international treaties. Nevertheless, Islamic law and all of Shariah provide the judge with discretion, including the principle of good judgment, i.e., to interpret rules in a way that does not violate the rights of the victims or the accused. Thus, it is indeed a poor interpretation to say that the Islamic judge has to be strict concerning certain relevant rules. Rules in Islamic law have a guiding character for the judge and do not constitute the final stage of judgment. In other words, a judgment, in analogy to the common law system, is the combination of a considerable number of factors. The judge in a common law system does not, however, limit her/himself to the decisions of parliament. S/he works with the case and bases her/his judgment on existing law and judgments. One of the most wellknown cases is the Aboriginal land case. According to this case, the Australian law did not recognize the right of claim to land by original Aboriginal inhabitants for over 200 years. The theory was originally based on the concept of terra nullius (“land belonging to no-one”), which indicated that there were no legal titles to land before white settlement in Australia. Judge Eddie Mabo investigated the case. He rejected the wrongful understanding of the law and referred to customary law as provided for between aboriginal clans. This meant that the High Court of Australia modified the concept of terra nullius and stated that the Aboriginal people had the right to legal title to land under the provisions of customary law long before the establishment of a common law. Mabo’s judgment stated inter alia that “society was regulated more by custom than by law.” This judgement is an excellent decision in the struggle of the rights of indigenous people and a landmark interpretation of the law before government rules.38

38

See http://www.austlii.edu.au/au/cases/cth/HCA/1992/25.html (Accessed 14 February 2016).

CHAPTER SIX CLASSIFICATION OF CRIMES IN SHARIAH CRIMINAL LAW

1. Legal Disciplines “The strong man is not the good wrestler, the strong man is only the one who controls himself when he is angry.”1 As with many other criminal systems, Islamic law also has different categories of crimes according to its basic rules. The reason for this is to identify minor crimes and grave crimes and the attribution of appropriate punishment. The categorization may also be useful for clarification of the method of jurisdiction, prosecution, and punishment. Islamic law bases its criminal rules on certain legal disciplines that should be respected for the purpose of an appropriate understanding of its norms. Generally speaking, there are three different categories of crimes under Islamic law. These are Hudud crimes, Qisas crimes, and Tazir crimes.2 Each one of these crimes has its own statutes and should be read and interpreted in conjunction with its given historical situation. Islamic criminal justice regards the individual as its main subject. The dignity of the individual has to be respected in all forms of social conduct. The Quran states that “surely we have accorded dignity to the sons of man.” Therefore, force should not be employed in different matters of social conduct. Accordingly, no race is above another and none is better than the other. Like the continental and common law systems, Islamic criminal justice focuses on the principle of inviolability of the rights of individuals in social relations. The principles of the integrity of individuals and brotherhood therefore present two of the main pillars of Islamic law. They should be respected regardless of race, language, culture, sex, or religion.

1

The second source of the Islamic law. N. J. Coulson, ‘The State and the Individual in Islamic Law’, Vol. 6, No. the International and Comparative Law Quarterly (1957), pp.52, 53, 54, and 55-6.

2

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The Quran has cultivated civil justice and non-violation accordingly as the primary obligations and duties of individuals. Generally, it condemns persecution, harassment, aggression, and violation of the various rights of individuals. Under no circumstances is a person permitted to ignore the chief principles of social justice such as equality, humanity, ideological freedom, and privacy. In fact, the raison d’être for the establishment of the Islamic criminal justice system is the inner and outer protection of individuals within the universal civilization of mankind. Therefore, the three main categories of crimes, Hudud, Qisas, and Ta’azir, have a formative influence on Islamic criminal justice. They are studied in the below sections.

2. Hudud The first category or Hudud are crimes directed against the statutes of Islam: adultery, defamation, theft, brigandage, alcoholism, rebellion, and apostasy. There is no agreement on this list of crimes. Some Islamic jurists omit alcoholism or rebellion, arguing that neither the Quran nor the Sunnah prescribe specific penalties for them. Even apostasy should not be identified as a crime since the Quran confirms that “there is no compulsion in matter of faith.”3 The nature of punishment for crimes is mandatory. The punishments for most crimes are very serious, including death and amputation of body parts. However, these penalties have been broadly criticised and abolished under the principles of human rights law in Islam.4 Hudud crimes are offences against God. This explains why Hudud is the first category of crimes under Islamic law. They are defined in the provisions of the Quran, and most Islamic jurists consider them acts violating the Islamic principles of justice. This is because Hudud crimes are offences against the community or state and go against the social integrity of human beings as a whole.

3

The following countries apply capital punishment for apostasy. These are Afghanistan, Iran, Malaysia, Maldives, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, United Arab Emirates and Yemen. Definitely, their legislations are against the basic fundamental rights of man. 4 Consult Lasse A. Warberg, Shari' A: Om den Islamiske Strafferetten (Uqûbât), 80 (4) Nordisk Tidsskrift for Kriminalvidenskab (1993), pp.260-83; Gaafer Mohamed Abd-elrahim, The Concept of Punishment in Islamic Law in Relation to Contemporary Legal Trends (1987); Mohammad El-Awa, Punishment in Islamic Law (Indianapolis: American Trust Publications, 1982).

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Crimes that come under Hudud offences are various types of bribery belonging to the category of theft, brigandage, adultery, zinƗ (implying sexual intercourse outside wedlock), defamation, alcoholism, rebellion, and apostasy. For historical reasons or the low social standard of the Arab community at the time of the revelation of Islam, Hudud crimes were punished with very heavy penalties. The purpose of punishment was primarily to prevent others from committing the same crime. Regrettably, the tradition of very serious punishments has continued in many Islamic nations, and the application of certain penalties has not been rare. One clear example of the application of such punishments can be observed in the criminal law of the Islamic Republic of Iran. However, according to a more modern interpretation of Islamic law, such heavy penalties should no longer be applied. This is based on the fact that the Islamic Declaration of Human Rights prohibits the application of heavy penalties for Hudud crimes and emphasizes that Islamic provisions should be read in conjunction with the changes of time and circumstances. In other words, any interpretation of Islamic law for the purpose of application of Hudud penalties must be seen as contrary to the acceptable criminal procedures of most nations worldwide and as therefore invalid. In fact, it is a general principle of human rights law and international law as a whole that heavy penalties such as amputation, crucifixion, and capital punishment should be abolished; their application constitutes a violation of the principles of human rights justice.5 There is agreement that Hudud crimes, as applied today by Islamic rulers, are against the basic principles of international human rights law and obviously violate the legal corpus of this legal system. This contradiction would not have arisen if the notion of gradual enlightenment in Islam, as mentioned earlier, had been properly understood.6 This is particularly significant in view of the fact that Islamic law strongly insists on the principle of love and forgiveness. However, certain Shariah law violates international human rights law because Hudud crimes are incorrectly classified. This is based on the fact that the definition of Hudud as “mandatory punishment” contradicts Article 6(1) of the International Convention on Civil and Political Rights, 5

N. J. Coulson, ‘The State and the Individual in Islamic Law’, Vol. 6, No. the International and Comparative Law Quarterly (1957), pp.49-60. Available at https: //www.jstor.org/stable/pdf/755895.pdf visited 22 January 2017, p. 54. Consult also William A. Schabas, Islam and the Death Penalty, 9 William Marry Bill of Rights journal (2000), p.223- 236. Available at http://scholarship.law.wm.edu/wmborj/ vol9/iss1/13 (Visited on 2 May 2017). 6 Consult chapter one.

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which says that no one shall be arbitrarily deprived of her/his life and that capital punishment is an institution that should be abolished.7 The article reads as follows: 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 5. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

The right to life is the most significant part of Islamic theory and has to be protected by all means. The right to life is actually the supreme gift protected in Islamic theory and cannot be taken away by other human beings. In Islamic law, no human being is worth more than another and, again, no judgment can usurp God’s will. Although certain serious sanctions against criminals exist, these sanctions are nullified by different forms of amnesties, forgiveness, and moderations. The core intention of God is awareness and forgiveness, and this should also be understood in the interpretation of the Quran. Furthermore, international human rights law has supported the right to life for different reasons. The same is true concerning customary international law, and the non-derogable nature of the right to life is also an integral part of jus cogens law.

3. Qisas The second category of crimes in the criminal system of Islamic law are offenses against individuals, not against God. Qisas also evolved over time and was affected by juridical and political conditions. The Qisas crimes 7

See William Schabas, note 5.

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have gradually been recognised for changing juridical and political reasons within the social structure of society. The main source of Islamic law also refers to these crimes. The list of crimes considered Qisas includes voluntary and involuntary homicide, crimes against mankind, and crimes against individuals. It also encompasses various forms of attempted murder, which do not result in the death of the victim. Ideologies differ on the method and degree of punishment. Some believe in the role of mediation for the purpose of restorative justice and others in forgiveness as the appropriate response to the crime. Therefore, revenge or retribution should be avoided as much as possible. The degree of punishment may, however, be mitigated by diyah (blood money) or apologies to the victim’s family. Qisas crimes have different types of policy for the application of penalties, the reason being that most penalties may be excused by offering diyah. The amount of diyah depends on the gravity of the criminal conduct and its consequences. Qisas crimes may also be punished by retaliation. The term “retaliation,” however, does not mean to imply that Islamic law permits a family whose relative has been murdered to take necessary measures for the murder of the accused person. Such conduct would be lawless and therefore violate the Islamic ethic of legality. An accused person has to be brought before a criminal court for the purpose of appropriate prosecution and punishment. The doctrines of Islamic criminal law divide the concept of murder into different categories.8 According to one opinion, there are two different concepts of murder.9 They are intentional murder and murder by mistake. According to another opinion, the concept of murder may be divided into five categories. These are i) intentional murder, ii) quasi-intentional murder, iii) indirect murder, iv) murder by mistake, and v) murder equivalent to a mistake. However, the majority of jurists believe that the concept of murder is one of three classes: a) intentional murder or qatl-alamd, b) quasi-intentional murder or qatl-shibh-al-amd, and c) murder by mistake or qatl-al-khata. In the absence of the intention to cause death of the victim, the offender shall not be liable to intentional murder. Thus if a person bits or attacks another person without having the intention of causing his death and he dies as a result f that beating or attack, he shall not be liable to intentional murder. However, as the intention is a secret thing and cannot be 8

Mark Cammack, ‘Islamic Law and Crime in Contemporary Courts’, 4 (1) Berkeley J. Middle E. & Islamic L. 1 (2011), pp.1-15, at 7-10. 9 Id. pp.4-5.

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In Islamic criminal law, intentional murder implies criminal conduct when a sane adult person intentionally murders another person and her/his act results in the death of the victim. The concept of intentional murder requires wilful intent. In order to identify an intentional murder, the culture, language, religion, sex, social status, colour, race, health, and age are irrelevant and do not permit the perpetrator from escaping criminal responsibility. The dignity of the human being has the highest value in Islamic criminal law, and the victim’s caste plays no role. Both parties, i.e., the offender and the victim, are considered equals in the criminal justice system, and their social status or ignorance of the rights of the victim should have no effect on the attribution of criminal responsibility. Some jurists maintain that murder may be punished in accordance with Qisas or diyah, depending on the gravity and existence of intent.11 However, the majority of Islamic jurists believes that any criminal conduct causing the death of the victim should have Qisas as its sanction.12 For instance, in the case of threatening and murdering a person, it is asserted that: 1. The threat should be serious and of great harm so as to neutralize the consent of the person under compulsion, for example, death, grievous injury or long confinement. The seriousness of the threat is determined according to the position of the person under compulsion. The same threat may constitute compulsion for one person and not for another. Moreover, in the case of murder, threat of beating and confinement is not compulsion whereas in the case of drinking and larceny it constitutes compulsion. The jurists concur that the threat of railing, vituperation and calumniation is not compulsion.13 2. Threat should be of immediate nature. It should be such a threat that if the person under compulsion does not do the desired act at once, it will be translated into action immediately. If the threat does not require 10 A. Anwarullah, The Criminal Law of Islam (Islamabad: SharƯah Academy, 2004), pp.61-2. 11 Mark Cammack, ‘Islamic Law and Crime in Contemporary Courts’, pp.10-11. 12 Anwarullah, note 10, pp.53-57. 13 Id. pp.63-4.

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immediate action, it will not be deemed a threat liable for compulsion, since it will provide for the person under compulsion time enough to make arrangements for his protection.” 14 3. The person causing the threat must be powerful enough to carry out what he threatens to do. It is not necessary that the person threatening should be in authority such as an officer or a public servant.” 15 4. The person under compulsion must believe that if he does not perform the act he is being threatened to do, the threat held out to him will be carried out.” 16

Over and over again, there have been debates on assistance to suicide and whether assistance in dying, specifically requested by the victim and committed with her/his full consent, constitutes murder. Opinions among Islamic criminal jurists vary. The general conclusion is that all killings constitute homicide, whether intentional or non-intentional. Therefore, they are punishable by law and punishable under Islamic legislations as well. One example is the practice of individual states in the United States. Accordingly, a non-medical person is not permitted to assist in the suicide of another person, as this still depends on the proper consent of the victim or the consent of her/his relatives. Assisted suicide takes different forms: i) a person persuades someone else to commit suicide; ii) a person gives another person specific advice on how to commit suicide; iii) a person prepares the necessary tools for another person to commit suicide, with the intention of assisting the other person in his or her plan; iv) a person performs an act, as a result of which someone else dies. One example is when, in one way or another, the lethal doses of whatever drugs the person is taking are increased. All these examples include a form of intention or qatl-al-amd. Having said that, Islamic philosophy is against suicide for any reason, which means that not only the person who assists another in killing herself/himself but also the suicide victim has committed an act of murder against the sacred human soul. As will be discussed, the concept of mens rea constitutes the basic element for the recognition of criminality in Islamic criminal law.17 According to one opinion, a death caused by two or more persons jointly may mean equal responsibility for the commission of the crime and equal

14

Id. p.63. Id. p.64. 16 Id. pp.64. 17 Q, 33:5; 4:93. 15

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punishment for all offenders.18 “If two or more persons jointly cause the death of any other person by taking practical part in it, all of them shall be liable to intentional murder.”19 However, according to another view: not all of them shall be liable to the hurt caused. And if their acts can be distinguished or identified then the offender whose act is individually sufficient to cause death shall be liable to intentional murder. The offender whose act is individually not sufficient to cause death shall be liable according to the nature of his act. If the act of none of them is individually sufficient to cause death and death is cause as a result of cumulative effect of the acts of all of them in furtherance of a plan, then all those offenders who are directly involved in the commission of the offence shall be liable to intentional murder. The offenders who are not directly involved in the commission of offence shall be liable according to the nature of their acts, but if the death is cause without a plan, they shall be liable to quasiintentional murder. Moreover if two or more offenders cause hurts one after the other without a plan, and such hurts result in the death of the victim, the offender causing the hurt, shall liable to intentional murder and the other offenders shall be liable according to the nature of the hurt caused by each of them. If their hurts cannot be identified as to whose hurt is fatal and whose hurt is not fatal, then there is a difference of opinion among jurists. According to some jurists, all of them shall be liable to intentional murder while others opine that all of them shall be for hurts alone.20

This theory is also based on the reasoning that, if two or more persons jointly cause the death of another person and the act of each one of them is individually sufficient to cause death, then all shall be liable for intentional murder. Similarly, all shall be liable for intentional murder if it is impossible to identify who committed which acts and whose act was sufficient to cause death and whose was not.21

4. Tazir Tazir is the third category of crimes with discretionary punishments. This category involves wrongful conduct that threatens the community, the public, and individual interests and includes crimes such as the corruption of public officials, bribery, cheating others, and gambling. The gravity of punishment for these crimes is intended to have a rehabilitative effect and to restore fairness. Victims are entitled to claim compensation for their 18

A Anwarullah, note 10, p.59. Id. p.59. 20 Id. p.60. 21 Id. p.60. 19

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physical and mental suffering. The type and degree of penalties depends on the gravity of the criminal conduct and its effect on society. The modern interpretation of Islamic law prohibits banishment or other disproportionately harsh penalties and considers them serious violations of the rule of law.22 A Tazir offence is qualified mostly by the nature of the criminal act. Accordingly, it is the essence of the criminal conduct that makes an act prosecutable and punishable. The criminalization of taǥzƯr does not necessarily rest on the act or the conduct itself but on the nature of the act, which causes harm to the social system and may have negative consequences. The penalties for taǥzƯr offences are consequently discretionary and vary according to the character or nature of the wrongdoing and the harm arising from it. A Tazir offence may threaten one of the five essential guarantees of Islam. These are the basic understanding of religion, the development of wisdom, the right to procreation, the right to various personal securities including privacy, and the possession of movable and immovable property or wealth. The only person authorized to decide the punishment of the offender is the Qadi. The purpose of punishment is to protect the public interest and encourage public welfare.23 Tazir crimes are corrupting public services within the land, bribery of authorities to take certain decisions, and cheating others by different methods of falsification. The penalties for Tazir offences vary from case to case according to the gravity of the conduct and include apologies, fines, temporary banishment, various terms of imprisonment, and capital punishment. The implementation of the latter must be considered as an abolished institution, however, since it goes against the instruments of human rights law, including the Islamic Declaration of Human Rights. The purpose of these penalties is to prevent offenders from engaging in criminally wrongful acts. 22 However, in this regard see also Mark Cammack, ‘Islamic Law and Crime in Contemporary Courts’, at7-12. According to one author ‘The assortment of rules that are today grouped together as Islamic criminal law did not comprise a unitary body of doctrine in the pre-modern period, and the classical era classificatory scheme seems arbitrary and illogical from a modern perspective. Because classical era jurists regarded Hudud, Qisas and Tazir as fundamentally different, they grouped three doctrines that, from our perspective, belong together as “criminal law.” Part of the explanation for the classical categorization of offenses relates to the nature of legal rights generally within Islamic law.’ p.7. 23 Lippman, Matthew, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York, Westport, Connecticut, London, 1988), pp-52-3.

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5. Prescribed Crimes The prescribed crimes under the procedures of an Islamic international criminal court may be compared with crimes in the inquisitorial system, which has fixed definitions of crime and sanctions applicable to the wrongdoing. The crimes classified as prescribed crimes under Islamic law are legally prohibited acts with fixed penalties, the commission of which is forbidden in Islamic law. As a general rule, as in all inquisitorial systems throughout the world, punishment can neither be increased nor decreased; however, the punishment still depends on the circumstances of the given case and the evidence provided by the parties, prosecutor, or a third party as well as the effects of evidence on the case. Judges cannot waive a prescribed punishment as long as there is no clear evidence supporting its waiver. The judge should not link, associate, connect, or join the case to/with the decision by a political authority or the forgiveness of the offender. This is based on the theory that prescribed crimes are committed against the entire society and that the effect of wrongdoing impacts the collective nature of the given community, be it national, regional, or international. Thus, if relevant crimes have been brought to the attention of the governing body, the rules may apply based on the circumstances. In the original Islamic criminal law, prescribed crimes and punishments are theft, highway robbery, fornication and adultery, false accusation, conduct harmful to human welfare (such as gambling) as well as acts with potential harm for life, wealth, intellect, and the rational faculties of people.24 According to the concept of an Islamic international criminal court, the prescribed punishments are the “right of God,” the rights of the constitution, and natural rights or those substantive rights that should not have been violated. In an Islamic international criminal court, fixed punishments may apply to fixed crimes such as crimes against humanity, war crimes, aggression, and genocide. Still, some of these crimes are stronger by nature than others, such as those violating the body of Islamic international criminal law and the system of international criminal law concerning the crime of genocide. 24

A. Anwarullah, The Criminal Law of Islam (Kuala Lumpur: A.S. Noordeen, 1997); Bantekas, Ilias, The Disunity of Islamic Criminal Law and the Modern Role of IjtihƗd, International Criminal Law Review, Vol. 9, Number 4, 2009, pp. 651665; Bantekas, Ilias, The Disunity of Islamic Criminal Law and the Modern Role of IjtihƗd, International Criminal Law Review, Vol. 9, Number 4, 2009, pp. 651-665.

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Consequently, prescribed crimes in Islamic international criminal law have the character of community rights and violations of those rights by the offender. That is why neither Islamic international criminal law nor the system of international criminal law can ignore these fundamental rights, even though the victims are, for one reason or another, willing to ignore their rights. They are all punishable under the concept of an Islamic international criminal court or the ICC. In the system of Islamic criminal law, there is the concept of apostasy, which means an act that, in one way or another, negatively affects the theory of Islamic law. In other words, it means interfering with the concept of Islamic theory by accepting and rejecting it in order to create a bad reputation. This crime has been subject to serious punishment, not to create strong supporters for the theory of Islamic law but to emphasize the fact that the rejection of certain basic norms is valid as long as the rejection does not create problems for the collective interests of the relevant society. Today, the term “apostasy” in Islam applies to the concept of respect and cannot be regarded the way it was during the time of its revelation. Islamic law encourages respect for individuals, respect for unity, and respect for the principle of universality. In other words, Islamic law encourages the union of human binges, and we should not violate the dignity of this union. Here, the theory can be used in an Islamic international criminal court in conjunction with the recognition of core international crimes or core principles of justice. In other words, Islamic international human rights law, Islamic international criminal law, Islamic humanitarian law of armed conflict, and also Islamic public international law permit all state parties or all members of the international legal and political community to leave, abstain from, or withdraw from their international obligations. However, this abstention certainly does not imply that states, groups, or entities are permitted to violate different rules of international regulations. This is because abstention-apostasy should not end in violation-apostasy under the international legal system. In other words, faith to the basic principles of human rights and the supreme principle of morality should be a fact, and any misconception could lead to serious consequences.

6. Diyah Diyah means as much as settlement or financial compensation. It is also sometimes called blood money. The term is used with reference to a

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wrongful conduct committed against persons or property, including murder, that may be compensated with money or other items of value. Other crimes (that may not be compensated with money or valuable items) may also come under this category. Still, precisely because of its compensational nature, diyah may not be considered a crime and may therefore only be used in conjunction with a description of the criminal behaviour. It functions complementary to the degree and level of other wrongful criminal conduct. Diyah is also used in evaluating the criminal acts committed against the victim. Thus, diyah has de facto two functions: first, to determine the nature of the crime that is to be compensated and, second, to replace it with punishment in the form of blood money. In both cases, the victim or, in case of murder, her/his heirs, must express her/his full satisfaction with the financial compensation/payment. Diyah is therefore a form of ransom. Consequently: The punishment of death in intentional murder shall be executed when the heirs of the victim demand it. If the heirs of the murdered person are more than one, all must express this desire, and if one of them remits retaliations, the remission affects all and the convict shall be subjected to diyat to be paid to the other heirs if the one has pardoned him without anything and if he has pardoned him against diyat, he shall also be liable for his portion in the diyat. If one of them is a minor, insane or absent, punishment shall be delayed until he becomes an adult, sane or returns from the journey and expresses his desire for retaliation of the convict.25

As we have stated in the above, the amount of diyah varies from case to case, and it is up to the discretion of the judge and the victim to accept the correct payment. In other words, the concept of diyah is not only connected to the concept of crime but also to the particular value the victim attaches to the object or person. There is no specific guideline that allows the amount of compensation to be paid for the crime to be identified. The Quran expresses different forms of compensation for certain cases of serious crime: And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased 25

Anwarullah, The Criminal Law of Islam (Islamabad: SharƯah Academy, 2004), pp.90-1.

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was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from God. And God is ever knowing and Wise.26

According to Islamic theory and even Islamic international criminal justice, homicide and unintentional homicide may constitute a civil or an international dispute for those who have been harmed. In other words, the criminal actions of ISIS believers are not just directed against individual victims but also against all of civilized mankind. As a result, a state or the international legal and political community has the right under law to bring to justice cases of criminal offences that are committed against many nations by the relevant group. However, they should, be prosecuted under the Islamic criminal legal system. Although the Quran provides the law of retaliation for the crimes, this should not be interpreted as permission to enforce the principle of retaliation known as Qisas, e.g., a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, etc.27 They can be replaced with the concept of diyah paid to the victim or his or her relative. The concept of diyah is therefore highly encouraged in the Islamic theory of criminal justice. All these considerations imply the fact that the prosecutor in an Islamic criminal court has a duty to see to the satisfaction of the victim or her/his relatives. The law of the Shariah is quite clear in terms of blood money. In all instances, i.e., civil damage, bodily harm, and death, the victim has the full right to express her/his forgiveness, which is considered religious charity. The idea that Muslim women and Muslim men in Shariah courts do not have equal access to diyah is obviously misleading and not proper practice. The pure philosophy of Islamic law, as we have seen elsewhere, does not distinguish between man and woman or male or female. Both are equal and entitled to compensation by the offender or the legal and political authorities of the country. The concept of criminal intent as identified in the system of Islamic criminal law is a very significant criterion for recognising various classifications of offences, These classifications of crimes include accidental 26 27

Q, 4:92. Q, 5:45.

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homicide, homicide by mistake, intentional homicide, and homicide as tort. Islamic criminal law calls this qatl shibh-i-amd, which is defined as the causation of death with the obvious intention of causing harm to the mind or body of a person prior to causing death. The perpetrator may be found to be liable for the criminal behaviour and is therefore subject to diyah, for both men and women. In Islamic criminal law, qatl shibh-i-amd is severely punishable. For example, this includes the crimes committed by ISIS, even though some members of the group may claim that they did not commit the criminal acts intentionally or did not have the intention of causing death. In qatl shibh-i-amd, the accused may not have intended to cause the death of the victim, but the accused did intend to cause bodily injury to the victim who was ultimately killed. Although the intent of causing the death of the victim is missing in qatl shibh-i-amd, this does not exonerate the criminal from criminal responsibility. One example is when a member of the ISIS group rapes a young girl and the rape becomes the reason for her death, whether as a result of the rape itself or whether the victim commits suicide as a result of the psychological effects of the rape. Or even when the rape becomes the reason for a father or husband to kill his daughter or wife. Here, although the father is guilty of a crime of honour, he has also committed an ordinary crime against the members of his family. The offender is subject to punishment even if the victim of a rape, e.g., by an ISIS member, had a pre-existing ailment and that was the reason for her death. This crime is also subject to qatl shibh-i-amd, since such an act may not have caused death in the ordinary course of nature. All these contributing factors will be subject to full diyah for a man or a woman.

7. The Core Crimes in an Islamic International Criminal Court The concept of an Islamic international criminal court, as already stated elsewhere, will be a court equivalent to the ICC, the difference being that the former relies heavily on the Shariah as a source of law. However, the concept of international crimes in both criminal legal systems will be the same. As specified in my volume on the Principles of Islamic International Criminal Law, both international criminal law systems have more or less recognised the same forms of international crime and are therefore identical. The core crimes in Islamic international crimes are war crimes, crimes against humanity, genocide, and aggression.

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7.1. Acts Constituting War Crimes Islamic international criminal law has a wide range of rules applicable to armed conflict.28 These rules must not be violated and should be taken as the most serious and effective rules for the implementation of the Islamic international humanitarian law of armed conflict. They apply not only to international armed conflicts but also to non-international armed conflicts, including internal armed conflicts. The following classified acts are strictly prohibited in times of armed conflict and are considered war crimes in accordance with Islamic international criminal law or the statute of an Islamic international criminal court. They are also comparable to the war crimes in the Statute of the ICC as presented in the above section.29 They are: A. 1) Massacre or holocaust. 2) Killing and destruction, which are not necessary. 5) Killing of non-combatants. 4) Killing of those who accompany combatants, but are considered noncombatants and do not assist the actual fighting in any way. 5) Killing hostages. 6) Killing hostages for retaliation. 7) Killing envoys. 8) Killing envoys for the purpose of retaliation. 9) Continuing to kill after vanquishing the enemy. 10) Cruel and tortuous killing of enemies. 11) Killing for the purpose of glory. B. 1) Carrying out violative acts that are prohibited according to existing treaties. 2) Using poisonous weapons. 28

See part two, chapters 19 and 20. For some of these prohibitions see, generally, Muhammad Hamidullah, Muslim Conduct of State (1945), pp. 204-215; Hamidullah, The Battlefields of the Prophet Muhammad, p. 17; Al-Ghunaimi, The Muslim Conception of International Law and Western Approach, pp. 148-150; Khadduri, War and Peace in the Law of Islam, pp. 105-4; Goddin, Extracts from the Holy Quran, and Sayings of the Holy Prophet Mohammad, p. 195; Khadduri, Islamic law of Nations: Shaybani’s Siyar, pp.76, 87. See also Arabi, Abdel Rahman, L’Islam et la guerre à l’Epoque du Prophète Mahomet (1954); A.A.A. Fyzee, Outlines of Muhammadan Law (1955). See also Majid Khadduri, (ed.), War and Peace in the Law of Islam (Baltimore, 1955); Majid Khadduri, Major Middle Eastern Problems in International Law (American Enterprise Institute for Public Policy Research,1972). 29

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Chapter Six 5) Forcing prisoners to fight against their own armed forces. 4) Killing those who are impartial concerning the result of the war. 5) Killing of refugees (Mustamin). 6) Killing all those who are traders, merchants, businessmen and persons in any other position who do not actually fight. 7) Inflicting death by burning a prisoner. 8) Amputating the parts of a body. 9) Mutilating dead bodies. 10) Cutting a part of a dead body and using it for various purposes.30 C. 1) Killing minors. 2. Killing slaves or servants. 5) Killing women. 5) Killing mothers who have dependent infants. 4) Killing those who are incapable of fighting, e.g., those who are handicapped, blind, insane, lunatic, delirious, old. 5) Killing minors who have not taken part in the actual fighting. 6) Rape. 7) Adultery and fornication with families. 8) All types of sexual abuse. 9) Killing parents not for the purpose of self-defence. 10) Killing monks, priests, and hermits. 11) Killing the mentally insane or those who are legally recognised as psychiatrically ill. 12) Killing a national of the enemy state who is already a resident under the jurisdiction of another state. 15) Killing neutrals, including physicians and reporters, who do not take part in the actual fighting. 14) Mistreating prisoners of war in one way or another. 15) Torture. 16) Excess and wickedness. 17) Degrading treatment of the sick and wounded and prisoners of war. 18) Humiliation of men. 19) Treachery, treason, and perfidy. D. 1) Killing civilian populations. 2) Destroying civilian establishments.

30

In the early history of Islam, cutting the head off the chief enemies could be rewarded by superiors. However, this action soon became unpleasant and was prohibited in practice. Similarly, during the Vietnam War, many United States soldiers cut the ear off the dead and hung them around their necks in order to show pride in the number of persons they had killed. These forms of brutality have been practiced by many nations.

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5) Any type of wanton destruction. 4) Destroying waterways for civilians. 5) Destroying medical supplies. 6) Taking civilians’ food by force or other means of threat. 7) Forcing civilians to fight. E. 1) Killing peasants. 2) Destroying properties unnecessarily. 5) Destroying and devastating agriculture. 4) Destroying and devastating forests (crimes against the natural environment). 5) Mutilation of animals. 6) Slaughtering animals that are not necessary for food. 7) Burning an animal.

The list of crimes within the regulations of an Islamic international criminal court can be accomplished with the principles of recognition of war crimes in the Statute of the ICC, based on the fact that they (= the principles of an Islamic international criminal court) do not contradict those principles (= principles of recognition of war crimes in the ICC statutes). 7.1.1. War Crimes in Courts Some of the specific reasons for the development of the definition of war crimes in international criminal law are the statutes of the ICTY, the ICTR, and the ICC. All these statutes have been useful in the development and consolidation of the scope of war crimes and their application at international levels. The concept of war crimes is specifically addressed in two articles in the Statute of the ICTY on grave breaches of the Geneva Convention of 1949 and violations of the laws or customs of war.31 Grave breaches are defined as wilful killing, torture, and taking civilians as hostages.32 Examples of violations of the laws of war are the use of poisonous weapons, attack, or bombardment, by whatever means, on undefended towns, villages, dwellings, or buildings and the plundering of public or private property.33 Similar rules can be found within the laws of the ICTR or the Sierra Leone Court. The Statute of the ICC has also provided a long 31

These are Articles 2 and 5. Article 2. 33 Article 5. 32

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list of war crimes.34 The Court is entitled to prosecute “the most serious crimes of concern to the international community as a whole.”35 The list of war crimes in the Statute has a very significant purpose, namely to recognise acts not permitted under the system of international criminal law. Significantly, many of the actions listed in the provisions of the Statute overlap with the provisions of Islamic international criminal law.36 These are grave breaches such as torture, wilfully causing great suffering, the extensive destruction of property, deliberately directing attack against civilians or civilian objects, killing the wounded who have laid down their arms, and deliberately directing attacks against buildings dedicated to religion/charitable purposes, hospitals, and places where the sick and wounded are housed, owing to the fact they are not used for military objectives. Article 8 of the Statute of the ICC lists war crimes that are comparable to the Islamic concept of war crimes and therefore definitely useful in the statute of an Islamic international criminal court. They are also based on the customary development of international criminal law.37 The article reads as follows: 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

34

Article 8 of the Statute of the ICC. Article 5(1) of the Statute. 36 See the below section. 37 Farhad Malekian, Prohibition Governing Child Soldiers Constituting an Integral Part of Jus Cogens and Obligatio Erga Omnes, XVII World Congress of the International Association of Youth and Family Judges and Magistrates, Belfast, Northern Ireland, 27 August – 2 September (2006). 35

Classification of Crimes in Shariah Criminal Law (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or

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Chapter Six hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 125; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their

Classification of Crimes in Shariah Criminal Law survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. (c) In the case of an armed conflict not of an international character, serious violations of article 5 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

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(v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 5 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 5. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

7.1.2. Defensive War ‘Fighting is prescribed for you, and you dislike it. But it is possible that you dislike a thing which is good for you, and that ye love a thing which is bad for you. But God knows, and you know not.’ This means that all wars are prohibited under the traditional concept of Islamic jus bellum, in particular those waged by politicians for the purpose of increasing their political and military power. Thus, jus bellum does not necessarily mean only the right to war but also the right to natural law and natural rights to prevent unlawful

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conduct.38 A comparative international lawyer correctly illuminates that ‘religion was not the motive for warfare in jihad, nor was its purpose to subordinate others and compel them to convert to Islam. Jihad was intended instead to ward off injustice, champion the cause of the weak, and drive back the enemy. Islam did not acknowledge war as a national policy, a method of conflict resolution, or a means to satisfy a desire for hegemony or to gain spoils beings. Accordingly, war is not deemed lawful except when an absolute necessity calls for it.’39 There is no concept of holy war whatsoever in Islamic law. Although it is removed from our current discourse, it is not altogether inappropriate to adduce the fact that It was with the rise of the Papal States and ultimately with the declaration of the Crusades that the concept of “holy war” came to be an important term. It is noteworthy that the earliest “holy wars” were often wars by Christians against other Christians, in the sense that the protagonists saw themselves as carrying out the will of God. However, it was with the “taking of the cross” by the Christian warriors sent by Pope Urban in the eleventh century that “just war” became “holy war” in its fullest sense. It was only with the authorization of the Pope that a knight could adopt the symbol of the cross. “Holy war”, as a term, thus has its origins in Christianity, not Islam. This gradual transition from total pacifism to just war to holy war did not occur in Islam. Then on violent period lasted only until the Prophet emigrated to Medina, after which the community was forced to ponder the conduct of war. The early history of Islam, unlike that of Christianity, was marked by overwhelming military and political success. However, rather than stamp a permanently war like character on Islam, the very fact that Muslims received revelation and guidance from the Prophet on matters of war established a set of rules and legal precedent that set clear and unmistakable boundaries. As Christians came to learn after they had gained political power, in a world full of evil and human passions war was inevitable, and even followers of Christ’s teaching of turning the other cheek were forced to formulate a concept of “just war”. They lacked, however, the advantage of a clear and binding precedent that not only provide that jus ad bellum, or the conditions under which a just war could be waged, but jus in bellum, the rules on how the fighting itself 38

Shaheen Sardar Ali and Javaid Rehman, ‘The concept of Jihad in Islamic International Law’, 10 (3), Journal of Conflict & Security Law (2005), pp. 321343. 39 Mohamed Abdelsalam Babiker, ‘The Relevance, Legitimacy and Applicability of the Nuremberg Principles and Islamic Law of War in Repressing International Crimes in Modern Islamic States and Societies’, in Ronald Slye (ed.),The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (2017), pp.45-69, at 53.

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A war conducted for the purpose of self-protection or self-defence cannot be recognised as an aggressive war as long as the principle of proportionality is respected during the war.41 Thus, according to Islamic international criminal law, a state has the right to fight for the purpose of self-defence or self-protection. This right is regarded as a right integral to the independent sovereignty of states. Consequently, jihad (under this section) means a defensive war and not an aggressive war. The term jihad may be qualified as a term of self-defence against those who initiated an armed attack.42 Moreover, this implies that any interpretation of jihad in the sense of an aggressive war is without grounds. Jihad aims to prevent unlawful acts. Accordingly, “The jihad ... is a measure of reprisal in self-defence or selfhelp.”43 Self-defence is also a factor in the system of international criminal law and under Article 51 of the United Nations Charter. Although the term “jihad” is not used in the system of international criminal law, a war for the purpose of self-defence is permitted. Consequently, the Charter permits “jihad” for the purpose of self-defence, with the reservation that it does

40

Jihad and the Islamic Law of War (Jordan: the royal aal al-Bayt Institute for Islamic Thought 2009), pp.1- 76, at 2-3. 41 See also chapter 19, section 5. 42 According to one writer, “the basic assumptions derived from the Koranic obligation to wage Jihad in the form of armed struggle qualify it to be considered as the bellum justum of Islam because it is to be waged for a just cause as a consequence of some wrong or injury inflicted upon the Muslims; it includes the inherent right of self-defence; and it must be conducted in accordance with upright intentions and not for material gains or the sake of glory and power. On the other hand, the duty to wage Jihad, that is, a perpetual struggle against all that is evil and against disbelief distinct from armed struggle, remains. ... The right to invoke and wage Jihad in the form of an armed struggle by modern Islamic States has undergone fundamental changes in the light of contemporary international law which prohibits the threat or use of force in international relations.” Hasan Moinuddin, The Charter of the Islamic Conference and legal framework of economic co-operation among its member states : a study of the Charter, the General Agreement for Economic, Technical and Commercial Co-operation and the Agreement for Promotion, Protection and Guarantee of Investments among Member States of the OIC (Oxford: Clarendon Press, 1987), p. 28. 43 Mohammad Talaat Al-Ghunaimi, The Muslim Conception of International Law and Western Approach ((Netherlands, 1968), p. 177.

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not directly employ the term “jihad” as used in Islamic international criminal law but instead the term “self-defence.”44 7.1.3. Assisting Victims When a war is conducted in order to repel acts of aggression against a nation that is the victim of an aggressive war, such conduct does not constitute an act of aggression.45 According to Islamic international criminal law, when a state has been the target of an aggressive war, other states í both Muslim and non-Muslim í have an international legal right to assist that state. This assistance is provided to the victim state in order to restore peace and justice as commanded by universal law. Precisely this principle of Islamic international criminal law has been advocated in the system of international criminal law, but under the direction of the Security Council of the United Nations. Article 45 of the Charter reads that “All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.”46 Because of its theological foundation, Islamic international criminal law was mostly implemented in Islamic states in ancient times, but it had many rules equivalent to the rules of contemporary international criminal law. For instance, Islamic international criminal law, like the system of international criminal law, permits assistance between states under certain circumstances. For this reason, assistance may be provided to other societies, nations, or states by Muslim states for the purpose of defeating an aggressive armed force. 44 Article 51 of the Charter of the United Nations reads that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” 45 Al-Ghunaimi, note 43, p.209. 46 For further consideration see, generally, Malekian, The Monopolization of International Criminal Law in the United Nations.

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In other words, a broader interpretation of this principle of the right to fight against aggressors under Islamic law is that Islamic international criminal law recognises the legal right of any state to provide assistance to any other state victimized by an absolute act of aggression. As a consequence, it is the illegal or unlawful notion of an act that identifies it as aggressive, and religious factors are not necessarily decisive. Islamic international criminal law protects all nations from acts of aggression regardless of their religion. This theory is based on two principles, the principle of equality between humans and the principle of brotherhood. Both principles constitute two of the prominent reasons for the development of Islamic law in general. 7.1.4. Protection of Fundamental Rights According to Islamic international criminal law, a war conducted for the purpose of protecting certain fundamental rights recognised under the Islamic system cannot be considered an aggressive war. This is, for example, “to allow the followers of revealed religions to practise their faith freely.”47 In other words, the theory of Islamic international criminal law protects human rights law and when these rights are systematically violated by the authorities of a notorious state, other states may resort to armed force in order to protect individuals victimized by infringements of the human rights law. This is called humanitarian intervention under the system of international criminal law and is the subject of controversial debate.48 Nonetheless, the United Nations has systematically resorted to armed force in its peacekeeping operations, where, according to the UN, systematic violations of the principles of international law have occurred. This remark is made with the reservation that, in the Security Council, economic and political interests typically take priority over other factors.49

47

Al-Ghunaimi, note 43, p. 209. Richard Falk, Human Rights and State Sovereignty (1981). 49 The United Nations does not act, for example, against the Israeli authorities who have committed war crimes and crimes against humanity, unlawfully used weapons, and committed serious violations of the international humanitarian law of armed conflict in the Gaza strip in 2009. It also did not act against the Chinese government, which was guilty of restricting the legitimate rights of Tibetans. 48

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7.1.5. Fulfilment of Serious Obligations Islamic international criminal law may also permit war if its purpose is to force a state to fulfil certain necessary obligations in treaty provisions with an Islamic state not met according to the terms of the treaty. According to Islamic international criminal law, the parties to a treaty must fully respect the principle of pacta sunt servanda.50 In other words, “Islamic law has been aptly described as a ‘Doctrine of Duties’.”51 Parties are to abide by their obligations. These are, e.g., to respect the rights of certain Muslim minorities who are under the jurisdiction of nonMuslim state(s), to redress wrongs, and to pay different types of taxes agreed upon by the terms of a treaty. Contemporary examples are serious violations of the provisions of conventions relating to genocide, apartheid, or the humanitarian law of armed conflict. Similar provisions can be found under the system of international criminal law, which may permit certain states to wage war against a state that has not fulfilled important international obligations towards the international legal community as a whole. For instance, Article 2 (5) of the Charter of the United Nations reads that “All members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.” This sub-paragraph should be read in conjunction with Chapter VII of the Charter governing conduct with respect to threats to peace, breaches of the peace, and acts of aggression. 7.1.6. Treatment of Prisoners The treatment of prisoners of war has been one of the central subjects of Islamic international criminal law. The wrongful treatment of prisoners of war may be regarded as a violation of the sources of the law and therefore constitute a war crime. Due to this recognition, there are certain rules that must be respected in the course of war in order to prevent violations of the rights of prisoners and the commission of war crimes. The following nonconclusive list emphasises the acts against prisoners that constitute war crimes according to original sources or traditional adaptation:

50

See part one, chapter one. J.N.D. Anderson, Islamic Law in the Modern World (Westport: Greenwood Press Publishers, 1959), p.5.

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—killing of a prisoner —punishment of prisoners based on belligerency or if their state is at war with the enemy —holding prisoners responsible for acts of belligerence —killing prisoners or causing loss of life during the belligerence —torturing or humiliating prisoners because the belligerent state has damaged their properties —unfair treatment of the integrity of prisoners —deliberate starvation of prisoners —placing prisoners in the heat of sunshine with the intention to cause death or harm them —subjecting prisoners to cold weather conditions or the like in order to harm or eventually to murder them —exerting various physical, psychological, or mental influences on prisoners in order that they gradually commit suicide —not providing necessary clothing in order to harm their health conditions —destroying the will of a prisoner regarding property at home once the prisoner is no longer alive —separating infants from their mothers in order to gradually kill them —separating children from their mothers with the intention of harming both —raping, sexually abusing, sexual using imprisoned men or women —placing female prisoners together with male prisoners with the intention of rape or any other sexual abuse —separating family members with the intention of harming their physical or mental health —ignoring the natural needs of women with the intention of harming their gender —imposing pressure on prisoners in order to change their religious beliefs —proselytising prisoners —forcing labour on prisoners in order to cause harm —using prisoners for the purpose of slavery —punishing a recaptured prisoner on the grounds of her/his success in escaping prison and fighting again under her/his own state authority —breaching parole as a reason for her/his punishment —imposing capital punishment on prisoners on the grounds of unconditional surrender and acts of belligerence52 52

‘The suggestion from some Islamic states that religious law forbids the abolition of the death penalty constitutes an important obstacle to universal abolition.

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—amputating different parts of the body of a prisoner —beheading prisoners of war53 —seriously disturbing the security system of services employed with the intention of handing over transferable prisoners —disturbing the immunity of exchangeable prisoners.

7.2. Crimes Against Humanity In Islamic international criminal law, the identification of acts that do or do not constitute a crime does not necessarily occur by accepting certain regulations and creating certain rules within the domestic and international criminal systems.54 Rather, the effects and basic elements of natural or moral law prohibit and criminalize a given international criminal conduct.55 One must not forget the fact that an individual under Islamic law is recognised as an integral part of the human community and, from a more comprehensive perspective, an integral part of universal human life. Injury to a person or discrimination between two persons is considered a crime against international human society as a whole. However, actual practice is different in Muslim countries. It must therefore be emphasised that the provisions regulated in the contents of conventions applicable to crimes against humanity in international criminal law are not innovative regarding Islamic international criminal law and therefore do not contradict the provisions of Islamic law or the provisions of Islamic international criminal law. For example, the Nuremberg Tribunal recognised murder and the extermination of civilians as constituting crimes against humanity. Islamic international criminal law prohibited the murder and mass killing of civilians long ago and identified such crimes as conduct in violation of the fundamental principles of divine law. Abolitionists would hope to be able to rely on the humanitarian trends within all the world's religions to bolster support for their cause. Indeed, such authorities can also be found within Islamic texts. Despite popular impressions to the contrary, Moslem penal law is characterized by a strong undercurrent of clemency and sympathy for the oppressed. Punishment is ordered to be free of any spirit of vengeance or torture.’ Schabas, Islam and the Death Penalty, note 5, at.230. 53 Racehl Saloom, ‘Is Beheading Permissible under Islamic Law-Comparing Terrorist Jihad and the Saudi Arabian Death Penalty’, 10 UCLA Journal Int'l Law & Foreign Affairs (2005), pp.221-224. 54 See also section on 17.4.3. Crimes against Humanity by ISIS. 55 The term “natural law” is also used as moral law. This means God’s eternal law, revealed law in the Old Testament, the law of the spiritual commandments, or the law of the Gospel. Moral law has also developed to express civil law, too.

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The same is true regarding the deportation of those who do not take part in the actual fighting, even though they may have other religions, political, and ethnic origins.56 Islamic international criminal law, like the system of international criminal law, criminalizes the extermination and murder of individuals. The practice of deporting individuals (for whatever reason) constitutes a crime against humanity. Islamic international criminal law essentially prohibits the persecution of individuals on religious, racial, and political grounds. Accordingly, all these acts may constitute crimes, regardless of whether an individual, group, or government that has committed such crimes was aware of their criminalization under Islamic international criminal law. This is because (according to Islamic theory) it is not the awareness and knowledge of the criminalization of an act that prevents the commission of related criminal conduct. Rather, it is the nature of a criminal act that provides the necessary information as to whether such act constitutes criminal conduct or whether the commission is morally wrong in accordance with the principles of legality. Ignorance and/or negligence concerning the law or the order of the law do not prevent the prosecution and punishment of a person who has committed crimes against humanity. Thus, if a person commits a crime, s/he cannot escape the consequences of the criminal conduct by pleading non-awareness of the criminal nature of certain acts. The system of Islamic international criminal law, in other words, has a very high degree of moral force, whereas this is almost lacking in the system of international criminal law. The former not only bases its legal sanctions on the principle of legality but also on the natural and moral wrong of criminal conduct, while the latter bases them on recognition of the system by each individual state.57 The consequence is that criminalization of the given conduct in the system of international criminal law depends on the decision of each individual state and whether or not it signs or ratifies the relevant international criminal conventions. In contrast, the law or obligations are already fixed under Islamic international criminal law and do not need to be ratified. Thus, violations of the system of international criminal law by Islamic leaders have two characteristics: they are violations of international criminal law and Islamic international criminal law as it stands. The Omar Hassan Ahmad al-Bashir case illustrates this duality. The notion of establishment of an 56

See infra. For the principle of legality in Islamic international criminal law, see chapter one, sub-section 6.2. 57

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Islamic international criminal court is solely based on the decisions of those authorities who control legislation and does not necessarily depend on the rule of law. In reality, the law has no particular judicial power to control criminalisation or non-criminalisation of the described conduct. It is the political leaders of Islamic nations who decide on the very controversial cases of criminality. In other words, the creation of an Islamic criminal court does not go against the theory of identification of criminals but quite the converse. The criminalization of a given conduct in Islamic international criminal law therefore has a legal nature that cannot be ignored or removed by way of interpretation; the only way to accomplish this is by humiliation and monopolization of legal and moral power. Thus, whenever someone speaks of the criminalization of apartheid and discrimination under Islamic international criminal law, it is not necessary to establish whether the state in which such activities are carried out is Muslim or nonMuslim. In Islamic law, it is the spirit of human beings that is identified with dignity and not necessarily the system of law.58 It must, of course, be emphasised that the principle of legality has long been revealed in the system of Islamic international criminal law.59 There are, however, some prerequisite elements in the recognition of crimes against humanity in Islamic law; certain elements must exist. Some of the most important elements are examined below. 7.2.1. Wisdom of Committing Wrongful Conduct The system of Islamic international criminal law, like the system of international criminal law, clearly points out the fact that, in order for an act to constitute a crime against humanity, the perpetrator must understand that her/his act is wrong and violates the general principles of Islamic law. Similarly, in the system of international criminal law, one of the most significant elements for the recognition of certain acts as crimes against humanity is based on the term “knowledge of the attack.” Like the system of Islamic international criminal law, the term considers the principle of mens rea. Both systems recognize that one of the primary conditions for the recognition of acts as crimes against humanity is the intent to commit acts recognised as wrongful conduct in the provisions of both systems. The difference between these two systems is that Islam uses the term “knowledge,” but the other applies the synonym 58 59

See, generally, chapter one. Moreover, subjects in Islamic law are not authorized to codify the law.

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“wisdom.” The term “knowledge” refers to awareness on the part of a person in committing an offence, and the term “wisdom” refers to the necessity of understanding or perception. The term “knowledge” has been defined in both systems in several ways. According to the Kayishema case in the ICTR: The perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. Part of what transforms an individual’s act(s) into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan, is necessary to satisfy the requisite mens rea element of the accused. This requirement further complements the exclusion from crimes against humanity of isolated acts carried out for purely personal reasons.60

In the above definition, the accused cannot escape her/his crime by reasoning that s/he did not have knowledge of the criminal conduct. Consequently, a certain degree of intent to commit crimes against humanity is considered a necessary condition. But, the constructive knowledge or understanding that one is going to commit an offence under international criminal law or unacceptable acts under Islamic international criminal law may in itself be sufficient to prove guilt. 7.2.2. The Existence of the Principle of Intent In Islamic criminal law or international criminal law ‘the main ingredient of intentional murder, is that the offender must have intended to cause death of the victim.’ In other words, ‘criminal intention means willingness of a person to do a prohibited act or refrain from a mandatory act knowingly that the act he is going to commit or omit is forbidden.’61 Although both systems of international criminal law refer to knowledge or wisdom í the two interchangeable terms í, the term “knowledge” also contains the principle of intention for the commission of an offence, whereas the term “wisdom” does not necessarily refer to intention. In the system of Islamic international criminal law, “wisdom” implies proving that one has obtained sufficient information about 60 61

Kayishema (ICTR-95-1-T), Judgement, 21 May 1999, paras. 155-154. Anwarullah, 444, p.61.

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something or has, in one way or another, been informed of the criminal conduct. In other words, the wisdom or understanding of a person does not necessarily denote her/his intention. Intention is a part of “knowledge” but is not necessarily its integral part. Thus, an offence may be committed with the clear intention of a person to commit an act without necessarily proving that the person had sufficient knowledge of committing a crime against humanity. In other words, “knowledge” or “wisdom” is present in both systems of international criminal law as a necessary condition for the recognition of crimes against humanity, but it is not a decisive factor in the system of Islamic law. The reason is that the law specifically emphasizes the principle of mens rea, and this means the intention of a person to commit crimes against a human being without due regard for her/his race, nationality, culture, ethnic origin, religion, and language. 7.2.3. A Wrongful Conduct Another condition for the recognition of crimes against humanity is the existence of a conduct recognised as wrong according to the basic sources of Islamic international criminal law. Both systems of international criminal law imply the fact that, in order to be recognised as a crime against humanity, an act must be legally accepted as an offence. Thus, the jurisprudence of Islamic law bases the concept of crimes against humanity on the principle of de lege lata. The system of international criminal law, like Islamic law, has also emphasised that certain actions constituting crimes against humanity must be codified within the law. Accordingly, the provisions of categories of international crimes in the Nuremberg Charter, the ICTY, the ICTR, the Sierra Leone Court, and the ICC imply this fact. Due to the development of the law of those tribunals and courts, crimes against humanity are, inter alia: i) murder; b) extermination; c) enslavement; d) deportation or forcible transfer of population; e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; f) torture; g) rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilization, or any other form of sexual violence of comparable gravity; h) persecution against any identifiable group or collective on political, racial, national, ethnic, cultural, religious, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; i) enforced disappearance of persons; j) the

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crime of apartheid; k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. The acts enumerated above also constitute crimes against humanity under Islamic international criminal law and perpetrators must be held accountable. For instance, under a generally recognised norm of Islamic law, acts that violate the principles of Islamic law concerning violence against the physical or psychological integrity of others are prohibited and constitute torture. Similarly, apartheid, rape, slave prostitution, or forced pregnancy are all prohibited and constitute offences against the personal integrity of man.62 7.2.4. A Criminal Plan Another requirement is that an act be designed to be carried out against a person or particular minority group. As a general rule, the system of Islamic law prohibits intrigues, conspiracies, and trickeries against any person or any particular majority or minority group. This is because the true Islam encourages brotherhood, peace, and justice.63 In Islamic international criminal law, the term “crimes against humanity” refers to specific acts of violence against persons or groups regardless of whether they are Muslims/non-Muslims, or citizens/noncitizens of the state in which the criminal acts against them have been carried out. Similar principles are also recognised in the system of international criminal law. Accordingly, a crime against humanity refers to acts of violence against a particular group. A single act of violence, however, should not be recognised as a crime against humanity as long as the other elements are

62 For the above list of crimes, see the relevant chapters. However, the term ‘forced pregnancy’ has been objected to by a number of Islamic states. They believe that its practical interpretation may create the right to abortion which is in itself another form of killing a human being. Therefore they also believe that the notion of gender crimes may conflict with the Islamic philosophy of justice. Mohamed Abdelsalam Babiker, The Relevance, Legitimacy and Applicability of the Nuremberg Principles and Islamic Law of War in Repressing International Crimes, p.59. Their opinion is obviously subject to intensive debate on the way in which we interpret Islamic philosophy. 63 Consult also James Cockayne, ‘Islam and International Humanitarian Law: From a Clash to a Conversation between Civilizations’, 84 International Review of the Red Cross (2002), pp.597-626.

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not present. The reason for this is to avoid recognizing acts of murder or similar acts as crimes against humanity. 7.2.5. No Policy of Widespread Attack Contrary to what has been said about the history of the creation of the term ‘crimes against humanity,’ this term has been recognized in relation to the 1915 murder of almost one million Armenians by the Turkish government. The term ‘crimes against humanity’ did not imply just one category of international crime, but the crime of genocide as well. This is based on the fact that there was no word in the system of international law for the crime of genocide at the time and therefore the term ‘crimes against humanity’ also meant the commission of genocide. In other words, the Islamic government of Turkey committed the brutal crime of genocide against Armenians, in particular their women and children. One of the predominant principles for the recognition of crimes against humanity in international criminal law is the policy of a widespread attack. Since the first use of the term in 1915, it has become obvious that a single act of violence or isolated acts cannot be recognised as crimes against humanity and may be covered under different regulations.64 Therefore, in order to consider a crime a crime against humanity requires intention on the part of the perpetrator and a combination of other evidentiary factors. The creation of the Nuremberg Tribunal brought with it several different definitions of crimes against humanity. The Nuremberg Charter defines crimes against humanity as ‘namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.’ It goes further and correctly states that ‘leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.’65 The Statutes of the ICTY and ICTR also created certain provisions for the identification of crimes against humanity.66 According to these provisions, tribunals have the power to prosecute persons responsible for 64

W.J. Fenrick, ‘Should Crimes Against Humanity Replace War Crimes?’, 57 Columbia Journal of Transnational Law, 767 (1999). 65 Article 6 (c) of the Charter of the International Military Tribunal in Nuremberg. 66 See also section on 8.2.8. List of Crimes Against Humanity.

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the crimes enumerated below when they are committed in armed conflict. The identification of the crimes are without due regard to their internal or international character. Therefore, crimes against humanity can be committed against any civilian population and include acts such as a) murder; b) extermination; c) enslavement; d) deportation; e) imprisonment; f) torture; g) rape; h) persecutions on political, racial and religious grounds; i) other inhumane acts.67 The definition of crimes against humanity was enlarged in the ICC Statute. Article 7 of the ICC Statute lists, inter alia: a) murder; b) extermination; c) enslavement; d) deportation or forcible transfer of population; e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; f) torture; g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender-related grounds i) enforced disappearance of persons; j) the crime of apartheid; k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to bodily or to mental or physical health. These acts come under the definition of crimes against humanity if they are widespread and focused on the civilian population. Nonetheless, under Islamic international criminal law, an offence is not considered a crime against humanity merely because it is widespread or systematic but rather because of its illegal nature, which goes against the integrity of humankind as a whole. It is a recognised principle of Islamic law that a crime against a person is simultaneously recognised as a crime against mankind. In terms of recognition as a crime against humanity, the condition of widespread or systematic attack plays no effective role. The fact that the criminal act has occurred with the intention of harming or damaging the victim suffices. However, this does not mean that Islamic law objects to the terms “widespread” or “systematic attack.” The entire philosophy is to prevent impunity and not escape criminality. In any event, both systems of international criminal law have a more or less similar policy for recognising crimes against humanity. For instance, the acts by Saddam Hussein against the Kurdish population in the early 1980s can be acknowledged as crimes against humanity in both systems. Similarly, acts of certain Islamic regimes against their populations can also be considered crimes against humanity within the regulations of both systems of international criminal law. This is regardless of the motivation of those fanatical regimes. In addition, the 67

Article 5 of the Statute of the ICTY and Article 3 of the Statute of the ICTR.

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criminal conduct of a number of Western regimes may also come under the theory of crimes against humanity under the jurisdiction of the ICC, once the ICC does not fear opening a case against those criminals.68 7.2.6. Policy of Systematic Attack The term “widespread” is closely related to the term “systematic,” but may not necessarily mean the same thing. In the system of international criminal law, both terms are used, sometimes separately and sometimes jointly, in order to express the seriousness of a criminal act. The International Criminal Tribunal for Rwanda defines the term “widespread” as follows: “The concept of ‘widespread’ may be defined as massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.” The same tribunal defines the term “systematic”69 in the following way: the “concept of ‘systematic’ may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must however be some kind of preconceived plan or policy.” 70 Within Islamic international criminal law, as in international criminal law, the concept of systematic attack refers to organised actions against a particular group.71 In law and in practice, such actions are prohibited and regarded as a violation of the law of God. However, Islamic law, unlike the system of international law, does not require fulfilment of the condition of systematic attack for the recognition of crimes against humanity. The crime can be committed by any means without any particular need and yet be systematic. However, a systematic or common policy of action may be helpful for identification of the crime and for assistance to the victim. The concept of crimes against humanity in Islamic international criminal law is not based 68

Farhad Malekian, The Monopolization of International Criminal Law in the United Nations, A Jurisprudential Approach (1st ed, 1993), 2nd ed. (1995); Farhad Malekian, ‘Mutilating the Philosophy of Justice in the Time of Armed Conflicts’, Contemporary Journal of International Law (2007); Farhad Malekian, ‘The Functions of International Criminal Law and the Problem of Positivism and Neutralism Philosophy’, Contemporary Journal of International Law (2007). 69 Akayesu (Case No.ICTR-96-4-T), Judgment, s September 1998, para. 580. 70 Id. 71 Consult Abou El Fadl Khaled, ‘Political Crime in Islamic Jurisprudence and Western Legal History,’ 4(1) 1 UC Davis Journal of International Law and Politic (Winter 1998).

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on the repetition of an act as constituting one of the elements of the recognition of the crime but instead on the substantial value of human beings, whose natural or positive privacy is seriously violated. 7.2.7. A Wilful Blindness Wilful blindness cannot excuse the recognition of crimes against humanity. Wilful blindness is not recognized in the theory of Islamic international criminal law. Similarly, the system of international criminal law also rejects the defence of wilful blindness. The term “wilful blindness” refers to a situation in which the accused seeks to distance herself/himself from criminal responsibility for wrongful conduct by deliberately avoiding gaining knowledge of certain information in order to exonerate herself/himself from suspicion of having committed the relevant crime. A clear example is when, during a war, a party attacks hospitals, schools, and other similar public services but claims not having had any information about the localities and therefore having lacked the requisite intent to break certain provisions of the law. Neither Islamic international criminal law nor the system of international criminal law accepts the defendant’s theory. The basic argument is that the defendant should have known the result of her/his actions or omissions when committing the crime. According to Islamic law, religious buildings such as churches and mosques are houses of worship and cannot be a target of attack. Depending on the circumstances of the case, any violation of hospitals, schools, and mosques or religious buildings may be considered crimes against humanity and war crimes. The reason is that Islamic law, in general, and Islamic international criminal law, in particular, prohibit attacks on religious buildings. One should also note what is permissible and what is not permissible in Islamic jurisprudence in general. In other words, “man must always do what is good, and abstain from what is evil, and take scrupulous care of the intermediary grades of plausible, permissible and disliked.”72 Furthermore, the general idea of Islamic law is based on the promotion and encouragement of awareness and the attenuation of blindness.

72

Muhammad Hamidullah, Muslim Conduct of State (1945), p. 5.

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7.2.8. List of Crimes Against Humanity The system of international criminal law has, in the Statute of the ICC, provided the most recent list of crimes against humanity which are, without doubt, identical with the concept of crimes against humanity in Islamic international criminal law and in the preparation of the establishment of an Islamic international criminal court for Islamic nations. Both laws have recognised certain actions as crimes against humanity and therefore as punishable offences. The following are the acts considered crimes against humanity under Islamic international criminal law: —killing, murdering, slaying, assassinating a person(s), —slaughter or extermination of a large or small number of persons, —imposing conditions of slavery upon persons, —forcible transfer of the population by different methods, including psychological or physical force, which ends in the deportation of one group of individuals to other areas, —restricting the personal integrity of individuals through acts of imprisonment, detention, arrest, seizure, capture, or any other methods such as the severe deprivation of physical liberty in violation of the fundamental rules of natural or positive law of the universe, —torturing different individuals or groups for various cultural, religious, linguistic, or other legal or illegal reasons, —violation of the sexual integrity of individuals by different methods, including rape and sexual slavery, —forcible matrimony or marriage, —prostitution of all types, —forced pregnancy, —enforcing different methods of sterilization on men or women with old or new techniques, —harassment or maltreatment of individuals or groups based on religious, racial, ethnic, cultural, or any other reason, which demonstrates the specific position of those individuals or groups, —disappearance of persons as a result of different acts of the perpetrators, —categories of discrimination based on racial, ethical, religious, cultural, linguistic political, or any other reason, which makes discriminated persons different from those of the Muslim population, —discriminating in one way or another between gender, —intentionally causing physical or mental health problems to individuals or a particular group.

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7.3. Genocide According to the Convention on the Crime of Genocide of 1948, for a crime to be identified as genocide, several conditions must apply. These are the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The following acts constitute genocide: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. One of the serious criticisms raised against the crime of genocide in the system of international criminal law is that the concept of this crime is very difficult to apply and may be purely hypothetical in most cases. This is because the Convention fails to clearly define “intent” or “intent to destroy” as well as many other terms such as “in part,” “deliberately inflicting,” etc.73 All these terms are conditional and can therefore be interpreted differently. Another difficulty is that when the “intent to destroy” begins cannot be determined. It is very doubtful whether the killing of just one member of a group is sufficient to constitute genocide. This is because the legal language of the Convention refers to the crime of genocide as “in whole” and “in part.” The definition of the term “in whole” may be much more relevant than the definition of the term “in part.” The term “in part” can apply to any number of people and the legislator does not mean to restrict it to the killing of a certain number of people, deliberately inflicting pain on, imposing measures of force on, and forcibly transferring just one member of a group. These are only a few of the difficulties in the application of the relevant provisions of the Genocide Convention. An appropriate Islamic law, if it is respected and not violated by the Islamic regimes, provides as follows: When you defeat them, do not kill their wounded, do not behead the prisoners, do not pursue those who return and retreat, do no enslave their women…do not mutilate their dead, do not uncover what is to remain covered, and do not approach their property, except for what you find in their camp (in the way) of weapons, beasts, or male or female slaves.74 73

For further examination, see Malekian, International Criminal Law, Vol. I, pp. 295-9. 74 Muhammad Hamidullah, Muslim Conduct of State (Leiden, 1953), p.360.

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Judge Weeramantry in his separate opinion concerning the Convention on genocide argues and supports the following: The Genocide Convention does not come to an end with the dismemberment of the original State, as it transcends the concept of State sovereignty. An important conceptual basis denying continuity to treaties is that the recognition of the continuity of the predecessor State's treaties would be an intrusion upon the sovereignty of the successor State. This would be so if it were a matter confined within the ambit of a State's sovereignty. But with human rights and humanitarian treaties, we are in a sphere which reaches far beyond the narrow confines of State sovereignty, and enters the domain of universal concern. In its ongoing development, the concept of human rights has long passed the stage when it was a narrow parochial concern between sovereign and subject. We have reached the stage, today, at which the human rights of anyone, anywhere, are the concern of everyone, everywhere. The world's most powerful States are bound to recognize them, equally with the weakest, and there is not even the semblance of a suggestion in contemporary international law that such obligations amount to a derogation of sovereignty.75

There is another problem with the Genocide Convention and that is that, in most cases, the perpetrators of the crime of genocide are those who decide on the enforcement of its provisions. Although we cannot ignore that some governments such as the Iraqi and Turkish governments have been identified as having committed the international crime of genocide, this has never been used as a reason to stop the commission of acts of genocide. There have been many instances when the commission of the crime of genocide has been suggested; nevertheless, no government has admitted to having committed such crime. One example is the commission of genocide during the Vietnam War by the United States. In recent decades, there have been some new developments in the system of international criminal law regarding the prosecution and punishment of those engaged in the commission of genocide. These developments are especially notable in the case of the ICTY, the ICTR, and the Special Court for Sierra Leone. All three courts have dealt with reasons of committing crimes of a very serious nature, i.e., genocide. 75 Emphasised added. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). Separate Opinion of Judge Weeramantry, http://www.icjcij.org/docket/files/91/7361.pdf, 55-56. (Accessed 20 June 2015). See also C. Fournet, ‘The Actus Reus of Genocide in the Croatia v. Serbia Judgment: Between Legality and Acceptability,’ 28 (4) Leiden Journal of International Law (2015), pp. 915-921.

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7.3.1. Srebrenica Genocide Case The time between 11-22 July 1995 is documented as one of the most shameful histories of civilisation against the Muslim population in Bosnia Herzegovina. I am referring here to the notorious Srebrenica massacre or genocide during the Balkan Wars. The collaboration and complicity of a number of groups and individuals caused the commission of the crime of genocide to be carried out against an innocent group of people. This act of complicity was committed through aggressive military criminal conduct and financial investment on the part of both the Serbian and Bosnian Serb authorities. Regrettably, these crimes against Muslims were committed when the area was under the United Nations’ protection. The situation in Srebrenica resembles the crimes committed against Yezidis and Syrian folk by the ISIS members. At least 8000 Muslim children, women, and men were murdered and a large number of others were gang-raped, humiliated, tortured, and otherwise seriously mistreated and harmed. 7.3.1.1. The Bias View of the ICJ Contrary to those brutal evidences in Srebrenica, the International Court of Justice, in the Bosnia Genocide Case, delivered a different judgment concerning the commission of genocide by the Serbian authorities against the Muslim population. Its view shows bias by maintaining both irrational beliefs and negative emotions against Muslims. In 1996, the International Court of Justice wrongly stated that the Government of Serbia neither committed genocide, nor conspired to, nor even incited the commission of genocide. The Court therefore incorrectly Finds that Serbia has not committed genocide, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;...Finds that Serbia has not conspired to commit genocide, nor incited the commission of genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;...Finds that Serbia has not been complicit in genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.76 76

Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina). http://www.icj-cij.org/docket/ index.php?sum=667&code=bhy&p1=3&p2=2&case=91&k=f4&p3=5.

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The biased views of the International Court of Justice were proved when the case came before the Appeals Chamber of the Yugoslavian International Criminal Tribunal in the case of Prosecutor v. Radislav Krstic. The unanimous ruling of the Appeals Chamber Judgement clearly testifies to the scandal of a genocide permitted to have taken place in modern Europe, where the European Union has long been established. The Appeals Chamber describes the qualification of this premeditated intended genocide in the following words: Among the grievous crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human groups for extinction. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all of humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity. The gravity of genocide is reflected in the stringent requirements which must be satisfied before this conviction is imposed. These requirements – the demanding proof of specific intent and the showing that the group was targeted for destruction in its entirety or in substantial part – guard against a danger that convictions for this crime will be imposed lightly. Where these requirements are satisfied, however, the law must not shy away from referring to the crime committed by its proper name. By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity. The Bosnian Serb forces were aware, when they embarked on this genocidal venture, that the harm they caused would continue to plague the Bosnian Muslims. The Appeals Chamber states unequivocally that the law condemns, in appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its proper name: genocide. Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act.77

The ICTY also stated that Radislav Krstic was obviously ‘guilty of aiding and abetting genocide.’ The Court was sure that the acts committed under Krstic’s authority had the nature of genocide and could not be covered by 77 Appeals Chamber Judgement in the Case the Prosecutor v. Radislav Krstic.The Hague, 19 April 2004, CC/P.I.S./839e); http://www.icty.org/sid/8434.

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any other core crimes. This does not mean the acts did not overlap with crimes against humanity or war crimes; on the contrary, it means that genocide in terms of the armed conflict at issue was of a nature that simultaneously included the commission of all core crimes.78 7.3.1.2. The Poor Nature of Ruling The opinion of the International Court of Justice at The Hague, expressed by its President, Rosalyn Higgins, is one poorest decisions to have been delivered in its history – a very shameful and dishonourable view. The opinion of the Court here not only violates the principles of international justice and international human rights law but also the basic principles of international criminal law and, in particular, the provisions of the Genocide Convention. The legal value of Higgins’s opinion has been questioned by many international lawyers, and the conclusion is that the opinion compromised international trust in the practical reliability of the Court’s decisions, particularly because it overlooks the destruction of evidence by the Serbs. According to the Vice-President of the ICJ, Mr. Al-Khasawneh: Serbia’s involvement, as a principal actor or accomplice, in the genocide that took place in Srebrenica is supported by massive and compelling evidence — Disagreement with the Court’s methodology for appreciating the facts and drawing inferences there from — The Court should have required the Respondent to provide unedited copies of its Supreme Defence Council documents, failing which, the Court should have allowed a more liberal recourse to inference —The “effective control” test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose — The “overall control” test for attribution established in the Tadic´ case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non- State actors — The Court’s refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY — The FRY’s knowledge of the genocide set to unfold in Srebrenica is clearly established — The Court should have treated the Scorpions as a de jure organ of the FRY — The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility — The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly.... I feel that I should explain the nature of my dissent before explaining the reasons for it. I am not in total disagreement with the majority: regarding 78

Appeals Chamber judgment of the ICTY in the case of Radislav Krstic.

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jurisdiction, I come to the same conclusion contained in paragraph 1 of the disposed if that the Court’s jurisdiction is established, although I have serious doubts whether, in terms of the proper administration of justice, the already settled question of jurisdiction should have been re-examined in the Judgment.79

Another legal expert believes that there are three main reasons why the decision of the International Court of Justice at The Hague was a conservative opinion: First, as far as the jurisdictional part of the decision goes, the court has been severely criticized for unjustifiably over-stretching the concept of res judicata to decisions on jurisdiction rendered at an earlier stage of the same proceedings; for over-relying on legal conclusions that were decided at earlier stages without serious consideration; and for narrowly construing its powers of revision. Indeed, seven out of the fifteen judges on the bench expressed varying degrees of unease with this particular outcome. Second, as for the actual findings on the commission of genocide, some writers have criticized the court for refusing to look at the ‘bigger picture’ of the events in Bosnia – a picture that seems to suggest that the various atrocious crimes meted out by the Bosnian Serbs were all part of the same ‘master-plan’ of creating an ethnically homogeneous Serbian state. Others have questioned the court’s readiness to rely on the absence of individual convictions in genocide by the ICTY (except with relation to the massacre in Srebrenica), without properly considering the difference between standards of liability under criminal law and state responsibility or fully appreciating the limited probative value of reduced charges as the result of plea bargains. Third, with respect to the question of Serbian responsibility, the court’s legal analysis of attribution standards, the reluctance to find Serbia to be an accomplice to genocide, and the decision to refrain from ordering reparations, have all been criticized as excessively conservative. At the same time, the court’s expansive reading of Article 1 of the Genocide Convention as potentially imposing on all states a duty to prevent genocide, even if committed outside their territory, has been noted for its remarkable boldness. Still, some writers have criticized the court for not clarifying whether Article 1 can provide an independent basis for exercising of universal jurisdiction against 79 Dissenting Opinion of Vice-President Al.Khasawneh http://www.icj-cij.org/ docket/files/91/13689.pdf, pp.202-203.

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individual perpetrators of genocide. So, arguably, the court construed broadly the duty to prevent genocide while narrowly construing the duty to punish its perpetrators.80 The former prosecutor in the trial of Slobodan Milosevic is also of the view that the crime of genocide was obviously committed by the relevant Serbian authorities. He maintains that ...it is important to note that Serbia did not hand over to the Prosecution (OTP) the complete collection of SDC records. For example, for the year 1995 the OTP received recordings for only about half of all the sessions held by SDC. Further, some of the SDC records were not handed over in their full stenographically recorded form but were produced as extended minutes. That means that they were shorter than steno-notes but longer than the regular minutes. The dates of the missing meetings or the meetings where this lesser form of record was provided, as I recall, were significant – namely dates leading up to, surrounding and in the aftermath of the Srebrenica massacre. The full records of those meetings need yet to be provided. At the same time, these documents, significant as they are, do not constitute a single body of evidence that will explain once and for all what happened and who was culpable. They do provide a much fuller context and provide some very valuable testimonials of things that were said by Milosevic and others. In their un-redacted form they would point all who are interested (not just governments and lawyers) to other documents that have never been provided and that might well be more candid than the words of those at the SD Council meetings who knew they were being recorded by a stenographer. Second, it should also be remembered that there are other protected document collections and individual documents which were, and still are, protected by direct agreements between Belgrade and the former OTP Prosecutor, i.e. they were not protected by the Trial Chamber. These documents are difficult now to identify but if and when Bosnia-Herzegovina decides to reopen the ICJ case it will be essential to require Serbia and/or the ICTY to produce all those documents for the ICJ.81

80 The International Association of Jewish Lawyers and Jurists (Justice No. 45, Spring 2008. Pages 21–26) http://www.infolink.co.il/intjewish lawyers/docenter/ frames.asp?id=16867. 81 KBSA 2000, Interview with Sir Geofrey Nice, "The Victims of Srebrenica, Living and Dead, Deserve Truth".http://www.kbsa2000kbs.org/index.php?option =com_content&view=article&id=256:sir-geoffrey-nice-rtve-srebrenice-ivi-i-mrtvizasluuju-istinu&catid=45:intervju&Itemid=107.

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7.3.1.3. Unrealistic Conditions Antonio Cassese, the first president of the ICTY maintains that the judgement of the ICJ had unrealistically high conditions for recognition of the Srebrenica genocide as such. He elaborates that the opinion of the Court undermined the basic principles of the system of international criminal law relating to the recognition of genocide and may therefore encourage impunity. One of the serious problems of the judgment is that it nullifies the involvement of the Serbian authorities in the massacre of Bosnian Muslims at Srebrenica in 1995. According to Cassese, although the court ruled that the crime of genocide had been committed, it was incorrect in concluding that Serbia was not responsible for the suffering of victims under international law. Thus, the Court’s statement was a facile judgment amounting to running with the hare and hunting with the hounds.82 He further says that: More importantly, the ICJ's decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense. According to the court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the court argued, because "it has not been proven" that the intention of committing the acts of genocide at Srebrenica "had been brought to Belgrade's attention". This is a puzzling statement at best. The massacre was prepared in detail and took place over the course of six days (between July 13 and 82 “According to the court, the Bosnian Serb generals who were guilty of this genocide, the various Mladics and Kristics, were neither acting as Serbia's agents nor receiving specific instructions from Belgrade. The genocide could not therefore be imputed to Serbia, even if the Serbian government was paying salaries to Mladic and his colleagues, as well as providing them with financial and military assistance. Nor was Serbia guilty of complicity, because, though it exercised considerable influence over Mladic and his people, it did not know, at the moment when the genocide was taking place, that such a crime was being committed. The court's decision thus attempts to run with the hare and hunt with the hounds. To decide whether Mladic acted on Serbia's account when he was planning and ordering the Srebrenica massacre, the court demanded proof that Serbian officials sent him specific "instructions" to commit this act of genocide. Obviously, such instructions would never be found. Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia's political and military leadership?.” Antonio Cassese, A judicial massacre, The international court has set an unrealistically high standard of proof for finding Serbia complicit in genocide, guardian.co.uk, Tuesday 27 February 2007 19.50 GMT, http://www.guardian.co.uk/commentisfree/2007/feb/27 /thejudicialmassacreofsrebr.

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The criticism of the Court’s judgment by Antonio Cassese is most significant when he draws the correct conclusion concerning the survivors of Srebrenica who received no damages for the commission of genocide against them because of the illogical judgment of the ICJ. According to Cassese, if the late Slobodan Milosevic were alive, he would have been convicted of the charge of genocide.84 In other words, genocide is a crime of crimes committed against the substance of human dignity and beyond the concept of murder. It is significant to note that the ICTR, in one of its judgments, states the difference between genocide and murder: “A distinguishing aspect of the crime of genocide is the specific intent (dolus specialis) to destroy a group in whole or in part. The dolus specialis applies to all acts of genocide mentioned in Article 2(a) to (e) of the Statute, that is, all the enumerated acts must be committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’ It is this specific intent that distinguishes the crime of genocide from the ordinary crime of murder.”85 The most recent example is the Omar Hassan Ahmad al-Bashir case involving the Sudanese president, who stands accused of committing various crimes by the prosecutor of the ICC. The prosecutor based the case 83

Id. Id. Slobodan Milosevic was a Serbian and Yugoslavian politician. He was the President of the Socialist Republic of Serbia (1989 to 1997) and President of the Federal Republic of Yugoslavia (1997 to 2000). He resigned the presidency in 2000 and was arrested by the Yugoslav Federal authorities and brought before the ICTY in 2001. Milosevic conducted his own defence from the beginning of the trial up until his death due to a heart attack in 2006. He was accused of committing crimes against humanity, war crimes and genocide during the 1990 Balkan wars, mostly in connection with the murder of Bosnian Muslims. 85 Kayishema (ICTR-95-1-T), Judgement, 21 May 1999, para.91. 84

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on the Statute of the ICC, which is presently dealing with three core crimes: crimes against humanity, war crimes, and genocide.86 7.3.2. Genocide in an Islamic International Criminal Court Islamic international criminal law, like the system of international criminal law, prohibits the mass killing of individuals or groups for whatever purpose. This includes any form of plan and practice that is essentially intended to destroy a group and nation in any way and/or by whatever means. Mass killing constitutes a serious crime against humanity and a punishable crime under Islamic international criminal law. Even though Islamic international criminal law does not necessarily reflect the type of genocide defined in the Genocide Convention, it does prohibit the killing of members of groups, regardless of whether the act is committed in whole, in part, or only against a single member of a given group. It is the intention of killing, causing serious bodily harm, destroying, or imposing forcible measures upon the members of any group that constitutes a crime. This is regardless of whether the criminal act is committed against several members or a single member of a group. In Islamic international criminal law, it is the motive of ill action that gives rise to the concept of crime and not the existence or non-existence of various elements enumerated in the Genocide Convention. As a general principle of Islamic criminal law, bloodshed in general is prohibited by divine law, and a person who has committed this crime cannot expect mercy under the Islamic sovereignty of law as long as certain specific punishments have not been inflicted. Still, mercy and amnesty largely depend on the nature of the crime and whether or not the crime may be forgiven. 7.3.3. Classification Islamic international criminal law is against any type of mass killing and/or destruction and recognises such acts as acts against the entire theory of Islamic legislation in the Quran. The legal reasoning in Islamic international criminal law rests on the effect(s) of such crime on the community of nations as a whole. The crime of mass killing or genocide can easily be classified under the category of crime recognised as Qisas in Islamic international criminal law. 86 See also chapter 17, concerning the ISIS genocide in complicity with big powers.

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Qisas (constituting the second category of crime) does not necessarily have a fixed definition or penalty. Crimes coming under classification of Qisas have basically evolved out of various social needs, including judicial process, analogical reasoning, political consideration, and even the adaptation of modern philosophies of crime and criminology. This category of crime in Islamic criminal law criminalizes, among other things, murder and intentional crimes against a person. In the same way as the intention to commit genocide constitutes one of the important elements for recognition of the crime of genocide in the Genocide Convention, genocide falls under Qisas or the second category of crimes in the Islamic criminal justice system, because this category fulfils both conditions for genocide, i.e., murder, which results in the death of the victim of the crime of genocide, and the intention to kill, even if the action might not have resulted in the death of the victim. 7.3.4. Criminalization in Human Rights Another reason why mass killing is prohibited under Islamic criminal law are its human rights principles, according to which murder, killing, and intentional injury for whatever reason are prohibited and recognised as prosecutable and punishable crimes. The Cairo Declaration on Human Rights in Islam addresses the question of genocide specifically. The Declaration condemns acts of genocide and recognizes genocide as a serious crime against the philosophy of Islam. It reads that: (a) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to protect this right from any violation, and it is prohibited to take away life except for a Shariah-prescribed reason. (b) It is forbidden to resort to such means as may result in the genocidal annihilation of mankind. (c) The preservation of human life throughout the term of time willed by God is a duty prescribed by Shariah. (d) Safety from bodily harm is a guaranteed right. It is the duty of the state to safeguard it, and it is prohibited to breach it without a Shariahprescribed reason.87

Today, more than ever, the importance of the system of Islamic international human rights and its functions and elements against the crime of mass killing or genocide may be examined under the rules of armed 87

Article 2.

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conflict.88 Islamic international criminal rules denounce any type of collective killing of groups who are non-combatants. This is regardless of whether the victims of the crime belong to groups of the same or a different nationality as one of the conflicting parties. It is upon this basic core argument that Islamic international criminal law existed prior to the system of international criminal law in terms of prohibiting acts constituting genocide. This simply means that the Nuremberg Tribunal could have prosecuted the killing of the Jews who were nationals of several European states under the concept of genocide if, and only if, the court had recognised the longstanding corpus of Islamic international criminal law against the perpetrators of war crimes and crimes against humanity, including the international crime of genocide.89 With the above conclusion, we also wish to highlight the broader aspect of international criminal law, Islamic international criminal law, and an Islamic international criminal court. The establishment of an Islamic court does not contradict the concept of crimes created and implemented under the provisions of the Statute of the ICC. In other words, the elements of the crime of genocide that are shared and generally used are recognition of mass crimes and mass atrocities with the full intention of annihilating, mutilating, and defaming a group or race.

7.4. Aggression The concept of aggression constitutes one of the well-known crimes in both systems of international criminal law, i.e., the system of international criminal law and the concept of Islamic international criminal law.90 The 88

See chapters four and 22. While our purpose is only to present the facts and principles of Islamic international criminal law in the elimination of serious international crimes, and we have only assumed here to draw comparative conclusions, no serious objections could have been made against the Tribunal if it had simply referred to the existence of a number of customary international criminal principles, which had already been codified within the international laws of other nations in the international community as a whole. This would mean that the jurisdiction of the Tribunal would have been criticized less in the public history of international criminal law, and the establishment of other international criminal tribunals might have been possible a long time ago. 90 Asma Afsaruddin, ‘The Siyar Laws of Aggression: Juridical Re-interpretations of Qur'Ɨnic and their Contemporary Implications for International Law’, in MarieLuisa Frick and Andreas Th. Müller, Islam and International Law: Engaging SelfCentrism from a Plurality of Perspectives (Leiden. Boston, Martinus Nijhoff Publishers, 2013), pp.45-63. 89

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former strongly emphasizes the recognition and prosecution of those who commit acts of aggression or who resort to the use of force, as it is traditionally called.91 Historically, the entire concept of war, including unjust war or what is and what is not legitimate, is based on the recognition of aggressive behaviour.92 However, it is a fact that legal and political fights for the recognition of the concept of aggression have been very intense in the system of international criminal law. This is why, after over almost one century of debate on the key principles of identification of an act as aggression, states finally adopted a definition of aggression at the Kampala gathering. Amendments to the Statute of the International Criminal Court (ICC) adopted in June 2010 defined the concept of the crime of aggression for 91 See Larry May, Aggression and Crimes Against Peace (2008); M. Cherif Bassiouni and Benjamin B. Ferencz, The Crime Against Peace and Aggression: From Its Origins to the ICC, in International Criminal Law, vol. I, 207-242 (M. Cherif Bassiouni, ed. 2008). 92 Consult George Finch, ‘Draft Statute for an International Criminal Court’, 46 American Journal of International Law 67(1990); M. Cherif Bassiouni, ‘Draft Statute International Criminal Tribunal’, 9 Nouvellese Etudes Penales (1993); M. Cherif Bassiouni, ‘A Comprehensive Strategic Approach on International Cooperation for the Prevention, Control and Suppression of International and Transnational Criminality, Including the Establishment of an International Criminal Court’, 15 Nova Law Review 353 (1991); Benjamin Ferencz, ‘An International Criminal Code and Court: Why They Stand and Where They’re Going’, 30 Columbia Journal of Transnational Law 375 (1992); International Courts for the Twenty-First Century (Mark W. Janis ed, 1992); M. Cherif Bassiouni & Christopher Blakesley, ‘The Need for an International Criminal Court in the New International World Order, 25 VAND. J. TRANSNAT’L 151 (1992); Peter Burns, ‘An International Criminal Tribunal: The Difficult Union of Principle and Politics’, 5 Criminal Law Forum 341 (1994); James Crawford, ‘The ILC’s Draft Statute for an International Criminal Tribunal’, 88 American Journal of International Law140 (1994); Timothy C. Evered. ‘An International Criminal Court: Recent Proposals and American Concerns’, 6 Pace International Law Review 121 (1994); Sandra L. Jamison, ‘A Permanent International Criminal Court: A Proposal that Overcomes Past Objections’, 23 Denver International Law and Policy 2 (1995); James Crawford, ‘Prospects for an International Criminal Court’, 48 Current Legal Problems 303 (1995); Henri D. Bosly, ‘Actualité du Tribunal International Pénal’, 1-2 h’s.4 Les Droit de Lowain 3 (1995); Brigitte Stern, ‘La Cour Criminelle Internationaledans le Projet de la Commission du Droit International’, in International Legal Issues Arising Under United Nations Decade of International Law (1995), pp.739-60; Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, Documents 3 vols. (Gabrielle Kirk McDonald, Olivia Swaak-Goldman, eds, 2002).

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purposes of the Statute of the ICC and set out the rules under which the ICC will exercise jurisdiction with respect to the crime of aggression. The member states in Kampala agreed that the ICC can only exercise jurisdiction over the crime of aggression if at least 30 states have implemented the aggression amendments one year after the meeting and if the ICC Assembly of State Parties adopts a further decision to activate that jurisdiction.93 The introduction of Article 8 bis to the Rome Statute sets out the core modification to the substantive crime of aggression. It reads that: Article 8 bis 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; c) The blockade of the ports or coasts of a State by the armed forces of another State; d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

93

1 January 2017 being the earliest date for the adoption of that decision. Article 15.

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7.4.1. No Aggression against Aggressor The system of Islamic international criminal law encourages the principle of non-aggression.94 Islamic humanitarian law indicates that ‘Whoever commits aggression against you, do not commit aggression against him like as he has committed against you; and fear you God, and know that God is with the God-fearing.’95 Throughout its historical development, Islamic humanitarian law has also recognised the concept of aggression and prohibits any act against i) the rule of peace, ii) the rule of war, iii) the rule of proportionality, iv) the rule of self-defence, v) the rule of humanitarian law of armed conflict, vi) the rule of justice, and vii) the basic rule of Shariah.96 Actually, the objectives of the United Nations overlap with the Islamic intention regarding the prohibition of certain acts constituting aggression. In other words, ‘waging war in Islam, in particular in the practice of modern Muslim states, is not acceptable under Islamic doctrine; jihad can only be called for in situations of self-defense, injustice or to fight aggressors.’97 This also underpins the system of public international law where use of force is only legitimate in situations of self-defense and aggression.98 94

Asma Afsaruddin, note 90, p.45. Q, 2:90. 96 Consult Asma Afsaruddin note 94, pp.47-54. 97 Still, it is rightly asserted that “although very often the Arabic word jihad is glossed as “holy war”, if we were to translate “holy war” back into Arabic we would have al-harb al-muqaddas, a term which does not exist in any form in the Islamic tradition. Jihad, both linguistically and as a technical term, means “struggle”, and is etymologically related to the words mujahadah, which also means struggle or contention, and ijtihad, which is the effort exerted by jurists to arrive at correct judgments in Islamic law. “Holy war” is actually a term that comes out of Christianity.” Jihad and the Islamic Law of War (Jordan: the royal aal al-Bayt Institute for Islamic Thought 2009), pp.1-76, at 1. 98 Mohamed Abdelsalam Babiker, ‘The Relevance, Legitimacy and Applicability of the Nuremberg Principles and Islamic Law of War in Repressing International Crimes in Modern Islamic States and Societies’ in Ronald Slye (ed.),The 95

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The United Nations Charter emphasizes that the purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.99

Similar to Article 51 of the Charter, Islamic international law refers to the legitimate right of states to resort to the principle of self-defence when absolutely necessary. This is under the condition that self-defence is essential to defeat the oppressive party. The pertinent rule under Islamic international law reads as follows: ‘To those against whom war is made, permission is given (to fight), because they are wronged;—and verily, God is most powerful for their aid;—(They are) those who have been expelled from their homes in defiance of right,—(for no cause) except that they say, our Lord is God.’100 The Quran adds ‘Did not God check one set of people by means of another, there would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of God is commemorated in abundant measure. God will certainly aid those who aid his (cause);—for verily God is full of Strength, Exalted in Might, (able to enforce His Will).’101 The words of the Prophet are similar to the provisions of the Quran. He says that “When a mighty government wages war against a weak one, God shall bring victory for the latter. However, if the Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (2017), pp.45-69, at 53. 99 See the Preamble of the Charter of the United Nations. 100 Q. 22:39. 101 Q 22:40.

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triumphant party humiliates the vanquished one, and takes advantage of the victory thus earned, the wrath of God shall be on them until doomsday.”102 The concept of aggression, which is referred to in the basic source of Islamic law, applies to acts of violence that are against the principles of equality.103 The concept of aggression arises whenever certain basic rights are violated and the conflicting parties do not respect certain conditions. Thus, Islamic international criminal law does not necessarily refer to the form of aggression but the fact that the nature or number of certain acts are against the basic foundation of peace, justice, and equality. The basic provisions on the crime of aggression concerning its criminal elements overlap with the principles of Islamic international criminal law and they should therefore not be ignored by Islamic states. Article 8 of the 2010 Kampala Review Conference adopted by the State Parties to the Statute of International Criminal Court defines aggression. It reads that: Introduction 1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression. 2. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations. 3. The term “manifest” is an objective qualification. 4. There is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations. Elements 1. The perpetrator planned, prepared, initiated or executed an act of aggression. 2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression. 3. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed. 102

The Great History (Siyar al-Kabir) with Sarakhsi’s explanatory notes, Vol.2, p.85. 103 Muhammad Hamidullah, Le Prophète de l'Islam (Paris, 1959), Vols.I-II ; Muhammad Hamidullah, Muslim Conduct of State (1945); Muhammad Hamidullah, The Battlefields of the Prophet Muhammad (England, 1953).

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4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations. 5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. 6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

7.4.2. Absolute Necessity The Islamic system of international criminal law permits self-defence under certain conditions. However, self-defence in the form of armed conflict must be of absolute necessity and should neither violate the rights of other states nor should it be used as a reason to recognise aggression. Absolute necessity is defined as: a) b) c) d) e) f) g)

h) j) i) k) l) m) n)

struggling for the purpose of self-determination, fighting against the unlawful occupation of its territories, assisting a nation in order to be released from unlawful occupation, assisting an oppressed nation to be released from oppressive acts of another nation, assisting Islamic nations in order to keep Islamic unity and solidarity, participating with its armed forces against an act of aggression, taking measures against any form of the use of force which is considered dangerous to its territorial integrity and political independence, taking measures against a state which treats its nationals badly; supporting a nation in order to achieve the right of self-determination, struggling against all forms of colonization, struggling against discrimination, struggling against apartheid and genocide, struggling against terrorist attacks, struggling against an attack against a state’s political foundations.

This means that the system of Islamic international criminal law overlaps with the intentions of the system of international criminal law to a large degree. Some examples are the use of the right to self-defence in the case of self-determination or the recognition of the right to struggle against foreign occupation.104 104

Definition of Aggression United Nations General Assembly Resolution, 3314 (XXIX) - 14 December 1974. For instance, Articles 6 and 7 of the resolution reads that ”Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in

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7.4.3. The Concept of Proportionality in Islam There is no question that ISIS cannot claim the principle of proportionality for a single one of its brutal acts. It is a fact that Islamic law, particularly pure Islamic international criminal law, requires full respect for the principle of proportionality at all times and particularly in times of armed conflict. The principle of proportionality sets out the right to self-defence under Islamic law but not the right to brutality. The principle does not mean legal permission to resort to aggressive conduct. Its function is to respond to an act of aggression for the purpose of prevention. Islamic law permits resorting to self-defence but under certain conditions and in accordance with a particular measure of proportionality as follows: i) There must be a definite sign of action which clearly constitutes a serious internationally wrongful conduct jeopardizing the security of a state. ii) It must be definitely impossible for a state which resorts to exercising the right of self-defence to obtain protection through other legal measures such as opening negotiations, sending diplomats and/or arbitrators. iii) The principle of proportionality must imply to clear form of balance between means and the end. iv) An attack which is carried out for the purpose of self-defence, cannot any longer be continue if the wrongful conduct is prevented, finished or the danger does not exist any longer. v) A reprisal should not be considered an integral part of the right of selfdefence. This is because the right of self-defence automatically comes into force against a crucial act of attack which is obvious or imminent to be committed. Thus, a state may not legitimate its conduct as selfdefence for an act which has already been committed. A state has, however, the right to demand reparation.

which the use of force is lawful.” “Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.”

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The difference between the principle of proportionality in the system of international law and that in Islamic international law is that the former permits use of the principle of proportionality and its interpretation against the political authorities of the relevant state. By contrast, the latter limits the scope of application of the principle of proportionality to divine methods and not as a right but solely as a tool of prevention.105 It reads ‘Fight those in the way of God who fight you, but do not be aggressive.’106 Thus, a state has to be very cautious in the case of resorting to the right of self-defence, and the use of the principle of proportionality should not be violated by any Islamic state. The principle of proportionality has to be respected and cannot be violated by individual decisions, even in cases involving the principle of unity of Muslims or the right of Muslims to assist their brothers and sisters. The function of the principle of unity of Muslims is therefore to highlight the fact that no Islamic nation or state should resort to aggressive behaviour. Moreover, it compels all Muslims to contribute to the maintenance of Islamic justice, equality, and brotherhood and to make available assistance and, if necessary, armed forces in order to prevent acts of aggression. The principle provides that ‘If two groups of believers fought with each other, you shall reconcile them. If one group aggresses against the other, you shall fight the aggressing group until they submit to God’s command. Once they submit, you shall reconcile the two groups equitably. You shall maintain justice; God loves those who are just.’107 Although Islamic law encourages the right to cooperate with those who are struggling or fighting for different forms of protection from unlawful criminal actions, this right should not violate the principles of justice and should not turn into aggression. The Quran says ‘do not cooperate with one another for the purpose of vice and aggression.’108 In other words, Islamic international human rights law principally prohibits human beings from cooperating or helping one another for the purposes of aggression, criminal behaviour, discrimination, injustice, and 105

Majid Khadduri, (ed.), ‘Islam and the Modern Law of Nations’, 50 American Journal of International Law (1956), pp.358-72; Majid Khadduri, (ed.), (translator) The Islamic Law of Nations: Shaybani's Siyar (Translated with an introduction, notes and appendices, Baltimore, 1966); Majid Khadduri, (ed.), Law in the Middle East (1955); Khadduri, Majid (ed.), The Islamic Theory of International Relations and Its Contemporary Relevance, see Proctor, 24-ff. 106 The Quran, 2:190. 107 The Quran, 49:9. 108 The Quran, 5:2.

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immorality. Any assistance provided for the purpose of assisting in the commission of a crime is considered a violation of Islamic provisions of human rights and essentially against the substance of humanity as a whole.109 7.4.4. Evaluating Aggression In Islamic international criminal law, aggression may be defined as an action or inaction that directly or indirectly jeopardizes the jurisdictional independence and security of another state by means of ideological conflict and/or armed invasion.110 Aggression does not necessarily imply the act of a state against another state. Rather, the crime of aggression can be committed by a state against a group, by a group against group(s), by group against a state, and by an individual against another individual. For example, the widespread brutality of ISIS or the Islamic State are acts of aggression against groups or states. Thus, members of ISIS may also be charged by an Islamic international criminal court for the crime of aggression. While Islamic international criminal law does not necessarily define aggression, it does refer to the holiness of certain matters as inviolable, and any violation by an individual, group, or state constitutes a serious breach of moral, legal, and spiritual contract. In other words, aggression refers to the brutality of a decision, the high immorality of an action, or the cruelty of inaction resulting in the serious violation of human integrity.111 A war that is conducted, in one way or another, for purposes of glory or economic gain, or is carried out by brutal acts, is considered an aggressive 109

Id. The term 'aggression' was first employed in Islamic international criminal law. Thirteen centuries later, the term was introduced into the Western system of international criminal law, at the beginning of the twentieth century. 111 Consult Adam L. Silverman 'Just War, Jihad, and Terrorism: A Comparison of Western and Islamic Norms for the Use of Political Violence', 44 (1), Journal of Church and State (2002), 73-92; James Cockayne 'Islam and International Humanitarian Law: From a Clash to a Conversation Between Civilizations', 84 International Review of the Red Cross, (2002), pp.597-626; Mohamed Elewa Badar, 'Ius in Bello under Islamic International Law', 13 (3), International Criminal Law Review (2013), 593-625; Niaz A. Shah 'The Islamic law of qital among Muslims', in Islamic Law and the Law of Armed Conflict: The Armed Conflict in Pakistan (Niaz A. Shah) (UK and New York, NY: Routledge, 2011), pp.60-70; Maryam Elahi 'The Rights of the Child Under Islamic Law: Prohibition of the Child Soldier', 19 (2), Columbia Human Rights Law Review (1987-1988), pp. 259-79. 110

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war.112 Islamic international criminal law permits war in certain situations in order to strive for the path of brotherhood or for the protection of the rights of man against unjustified acts of aggression. Therefore, a war that does involve these aims or is associated with the purpose of luxury is considered unlawful.113 The scope of aggression in Islamic international criminal law is somewhat broader than in the system of international criminal law. The former recognizes at least two types of aggression: ideological aggression and armed aggression. Aggression in the system of international criminal law is limited, and even its new definition, which may soon be part of the Statute of the ICC, is still not complete. It remains to be seen whether, in a particular given case, the Court will refer to customary or conventional criminal law and its protocols such as the Paris Pact. One may strongly argue that the law governing the crime of aggression in the system of the ICC can also be used in the system of an Islamic international criminal court. Significant differences between these two legal systems in the recognition of the crime of aggression are lacking. One difference is that Islamic law does not consider the definition of aggression as the final stage in recognising the crime; instead, it emphasises the degree of brutality of the conduct rather than listing a number of conditions for the identification of the crime. The crime of aggression has a broader recognition in Islamic international criminal law.

112 113

Id. Id.

CHAPTER SEVEN SHARIAH STRENGTHENING CRIMINAL JURISDICTION

1. Judiciary System “Fulfil the trust for the one who entrusted you and do not cheat the one who cheated you.”1 The intention of Shariah is to increase confidence in justice. Criminal justice should respect this principle even more. Each country has its own judicial system consisting of certain legislations. The judicial system is also known as the judiciary, the court mechanism, or the court body with authority to interpret the law and implement the law under the territorial jurisdiction of a state. The judicial system provides methods of dispute resolution according to the law. The judiciary is not responsible for drafting, creating, or modifying the law but it is responsible for deducing and interpreting the law in order to apply it to the case under investigation. The term “judiciary” also applies to different positions and functions under the jurisdiction of a state. It refers, inter alia, to the judges, prosecutors, magistrates, personnel as well as the entire staff who participate, by one means or another, in the operation of the judicial system. This model of judiciary is exercised not only by most European states but also by most jurisdictions worldwide. One may draw similar conclusions about Islamic criminal justice systems. However, it is necessary to understand that, in the beginning, the Islamic judicial system, like the judicial systems of the European states, did not have all the organs a judicial system requires today.2 Typically, at 1

The second source of the Islamic law. Consult W. Montgomery Watt, Free Will and Predestination of Early Islam (London, 1948); W. Montgomery Watt, Islam and the Integration of Society (London, 1961); W. Montgomery Watt, Islamic Philosophy and Theology (Edinburgh, 1962); W. Montgomery Watt, Muhammad, Prophet and Statesman (Oxford, 1961); W. Montgomery Watt, The Formative Period of Islamic Thought (Edinburgh, 1975); C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (1988);

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the beginning of the judiciary system under Islamic law, a judge incorporated all the legal functions of judge, prosecutor, magistrate, and also registrar of the court. Since the time of Mohammad, the judge in an Islamic legal system has been called qadi. A qadi has or is supposed to have sufficient knowledge of customary and legal disciplines. Historically, the qadi was responsible for the proper implementation of figh or the positive law of Islamic law emanating from the chapters, verses, or provisions of the Quran. He had the legal authority to interpret the law and apply the relevant sanction(s) for the restoration of justice and had to collect all evidence by different means or various approaches. Thus, the court of criminal jurisdiction did not have its own prosecutor or judge. Rather, the Qadi (Kazi) or judge had all these functions. One could say that the Islamic Qadi has the following juridical power: i) To ascertain the truth, he may employ legitimate strategies; ii) After the ascertainment of the truth, he is entitled to decide, in favour of either party; iii) A decision of one Qadi may be overruled by the other when presented to him by way of review or appeal; iv) All the relevant facts and circumstances shall be considered by him and he could rely on such of them which in his judgment have reliable probative value; v) He can rely on his personal knowledge of making a decision; vi) Besides adjudication he enjoys powers of advising for guiding the parties, so as to reach a compromise out of the court. But once a matter is presented for the exercise of his adjudicatory powers, he will have to decide according to law, notwithstanding his own notions of right and wrong.3

The judicial system of Islamic law actually has an adquisitorial system, too. It simultaneously relies on inquisitorial and adversarial methods, depending on the circumstances of a case and its requirements. Common law and civil law methods of procedure have been integrated into the system of Islamic criminal jurisdiction. One may draw similar conclusions

David W. Ziegler, War, Peace and International Politics (7th ed. 1997); Marten Zwanenburg, ‘The Statute of an International Criminal Court and the United States: Peace without Justice?’, 12 Leiden Journal of International Law 1-8 (no. 1, 1999). 3 Mohad Tagi Amini, ‘Time Changes and Islamic Law’ (Delli: Idarha-I Adabiyat-I, 2009), p. 58.

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about countries with common law and civil law systems, although both systems may claim that they are independent of one another. One may also conclude that all these three legal systems í Islamic jurisdiction, inquisitorial, and adversarial – when applied by a state, should fulfil the requirements of the accusatorial principle. States may also carry out a hybrid criminal jurisdiction in specific situations. They may adopt a method of international criminal jurisdiction into their criminal rules and procedures in order to prosecute criminals. The concept of a hybrid international criminal court has long been practiced in the systems of international criminal courts.4 Despite this practice, one may not reject the fact that inquisitorial, adversarial, and Islamic criminal jurisdictions are bound under the provisions of international criminal conventions to adopt certain measures in their legislation that can also implement international criminal law whenever such implementation is necessary.5 All three legal systems also have the power of international criminal jurisdiction. This comment is made with the reservation that, whenever they are not fulfilling their given duties, due to the principle of pacta sunt servanda, the principle of complementarity of international criminal jurisdiction may be enforced by the system of the International Criminal Court. Here, we have reached the most significant point as to the establishment of an Islamic criminal court. The Islamic nations, or the Islamic leaders, can no longer object to the legal validity of the statute of an international 4

Consult Nadya Leila Sadat and S. Richard Carden, ‘The New International Criminal Court: An Uneasy Revolution,’ 88 Georgetown Law Journal 581 (2000); Leila Nadya Sadat, ‘Competing and Overlapping Jurisdictions’, in M. Cherif Bassiouni, ed, International Criminal Law, Vol. II 201-229 (US: Ocean Publication, 2008); Nadya Leila Sadat, Custom, ‘Codification and Some Thoughts about the Relationship Between the Two: Article 10 of the ICC Statute,’ 49 DePaul Law Review 909 (2000); William A. Schabas, The UN International Criminal Tribunals: the former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press 2006). 5 For international criminal law, see Robert A. Friedlander, ‘The Foundations of International Criminal Law: A Present-Day Inquiry,’ 15 Case Western Reserve Journal of International Law 15 (1985); Gerhard O.W. Mueller, ‘International Criminal Law: Civitas Maxima,’ 15 Case Western Reserve Journal of International Law (1985); Yoram Dinstein, ‘International Criminal Law,’ 20 Israel Law Review 206 (1985); E.M. Wise, ‘International Crimes and Domestic Criminal Law,’ 58 DePaul Law Review 925 (1989); Julio Barboza, ‘International Criminal Law,’ 278 Recueil des cours 9-200 (1999-2000); David Eric, Principes de Droit des Conflits Armés (2nd ed. 1999).

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criminal court that is based on their own method of argumentation. Having said that, I do not wish to get entangled in political questions concerning the prosecution and punishment of leaders of the big political players around the globe, be they Western or non-Western. Sadly, impunity has become one of the most widely recognised practices for the most wellknown powerful criminals.6

2. Classification of Law There are several legal terms that should not be confused with one another. These are public law, private law, civil law, and criminal law. Each one of these terms has its own scope of application and should be treated with regard to its function. Still, a case may involve several characteristics of these legal terms. For example, a civil case may also involve a criminal case or vice versa. This may be true for all legal systems, including the implementation of Islamic law. Islamic law deals with all these legal areas, and a judge may deliver a judgment in which civil law and criminal law are applied concurrently concerning the commission of a crime or the reparation of damages. A civil law judge may not necessarily be familiar with criminal law, but a judge who deals with a criminal case may also deal with civil damages. In addition, it is sometimes very difficult to distinguish between civil and criminal cases. A case may have both these legal characteristics. This is true for all legal systems. Most ordinary people who are not familiar with the law tend to confuse the legal procedures for public law and private law. The function of public law is to regulate the relationship between the individual and public affairs. Here, the “individual” may either be a company or a citizen. The public law is divided into three sections: criminal law, administrative law, and constitutional law. Briefly: -

6

constitutional law is about three matters under the power of state that are in turn three different organs: the legislative, the judiciary, and the executive. administrative law governs international trade, taxation, manufacturing, and all other relevant matters. the function of criminal law is to implement the state’s sanctions in matters involving violations of the law in the given society.

Clear examples are the impunity of Tony Blair, Barack Obama, Omar al-Bashir, Tayyip Erdo÷an, North Korean leaders, and a number of leaders of Islamic nations, too.

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Private law concerns civil law. It deals with private relationships between individuals citizens and companies. Private law provides for the law of obligations and the law of torts. It formulates the legal relationship between persons who enter into a contract. The law of torts in private law remedies and addresses issues of civil wrongs that do not necessarily involve a duty under a contract. Unlike private law, public law is the law that involves the relationship between the individual and the state. Private law is limited to private targets, corporations, and individuals, whereas public law covers a much broader scope of implementation and concerns all members of society and not just two persons or a group of individuals and companies. All these divisions are applicable in the case of Islamic law. Islamic states or nations also have certain constitutions or legislations that deal with different aspects of national relations between individuals and individuals and between individuals and state organs. The main difference between all legal systems may be a difference in the degree of power granted to the organs of the states and the fact that this power may be controlled by the political authority of the state. It is here that serious differences appear when the legal machinery of the state becomes a private organ of political power. One constitutional power may have power over the entire constitution or a monopoly over the entire legal system.7 One such example is the Islamic Republic of Iran.8 Although the judicial system is based on Shariah and the judiciary in Iran “is an independent power” according to the constitution, it is ultimately subject to the complete control of one person. The independent nature of the legal system is seriously in question, legally, politically, and morally and not only dangerous for the Iranian population but also very hazardous for the Islamic theory of justice and the leader of the country himself. The current legal situation brings the international human rights of Islamic law under tight scrutiny, which essentially prohibits one-eyed justice.9

7

For political development of Islam see Gilles Kepel, Jihad: The Trail of Political Islam (Translated by Anthony F. Roberts from French) (Cambridge: Harvard University Press, 2002), pp.106-135. 8 Id. pp.106-8. 9 Examine, Mashood A. Baderin, International Human Rights Law and Islamic Law (Oxford University Press, 2005);, Mashood A. Baderin, International Law and Islamic Law (Ashgate, 2008); G.M. Badr, ‘A Survey of Islamic International Law’, 76 Proceedings of the American Society of International Law (1982).

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3. Classification of Courts 3.1. Supremacy The court system is different from country to country. This depends upon the way in which the courts deal with a given case. There is a hierarchy or system of courts. And each court has its own jurisdiction. Jurisdiction is defined as the authority to decide certain cases. This may be defined by subject matter and/or by geography. One court may hear only minor criminal cases, another only serious criminal cases; some may only hear civil law or family law, others may hear only appeals; yet another may hear only appeals on facts, and another only appeals on law, etc. In the British legal system, there are no supreme courts. However, a House of Lords deals with appeals. In most countries, however, methods of court jurisdiction are based on a Supreme Court, District Courts of Law, the Magistrates’ Courts, National Labour Courts, and Regional Labour Courts. The Magistrates’ Courts refers to the primary trial courts, and their function relates to criminal matters in which the accused are brought before the jurisdiction of the court for investigation and probably for the application of appropriate penal sanctions. The District Court relates to the middle-level courts, which concern themselves with jurisdictional matters not necessarily within the sole jurisdiction of other courts. The Supreme Court, however, is empowered to hear civil and criminal appeals from District Courts. Many Islamic nations, such as Tunisia and Egypt, have a similar judicial system.10 Their legal systems are built on a combination of Shariah law and civil law or the Napoleonic Code. In other countries, however, special authority is given to the higher authority in the country, e.g., in Iran or in Saudi Arabia. In that case, the Supreme Leader of the country appoints the head of the judicial system and, in turn, the chief public prosecutor is appointed by the latter. The public courts in Islamic nations deal with civil and criminal cases. Civil courts may be divided into several branches: first-level civil courts, second-level civil courts, independent civil courts, and special civil courts. The latter attend to matters related to family law and have jurisdiction over divorce and child custody. Criminal courts fall into two categories: first- and second-level criminal courts. The first-level courts have jurisdiction over the prosecution of felony charges, while the second-level courts try cases that involve lighter punitive actions. The function of 10 However, there exist three forms of family law under judicial system of Egypt. These are Islamic, Christian and secular emanating from French family laws.

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public courts is to investigate civil and criminal cases. Some states may even have revolutionary courts dealing with certain categories of crime such as crimes against national security and narcotics smuggling. Decisions rendered in revolutionary courts are final and cannot be appealed, but the supreme authority of the land may modify the decision.

3.2. Fatwa Revolutionary Court Revolutionary courts are, in many instances, against the principal foundation of human rights law and create serious problems as well as injustice.11 Such courts are used in the Islamic Republic of Iran. They are also known as restricted courts, which means that their decisions cannot be appealed and have to be implemented. There is yet another court called the Special Clerical Court, which deals with crimes committed by clerics. This court does not follow any legal rules. The court bases its arguments on the will of the Supreme Leader of the country, which means there is no possibility to appeal the decision. The power of control is in the hands of the Supreme Leader or, in other words, the Supreme Leader is the ultimate authority in the judicial framework. Any serious or sensitive decisions by any court may ultimately come under the control of the Supreme Leader for the application or nonapplication of sanctions. Problems similar to those of the Iranian courts’ legal system can be seen in Afghanistan and Saudi Arabia.12 The Quranic law constitutes the 11

For human rights in Islamic theory, see Ali, Shaheen Sardar, Gender and Human Rights in Islam and International Law: Equal Before God, Unequal before Man? (The Hague/London/Boston: Kluwer Law International, 2002); Abdul A’la Mawdudi,, Human Rights in Islam (Leicester, 1990); An-Na’im, Abdullahi, ‘A Modern Approach to Human Rights in Islam: Foundations and Implications for Africa’, in Claude Welch and Ronald Meltzer (eds.), Human Rights and Development in Africa (Albany, 1984); J. Donnelly, ‘Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights’, 76 American Political Science Review (1982);, Bernard K. Freamon, ‘Slavery, freedom, and the doctrine of consensus in Islamic jurisprudence’, 11Harvard Human Rights Journal (Spring, 1998), 1-64. 12 Some scholars distinguish between beheading of captives by terrorists and beheading of sentenced criminals in Saudi Arabia. They believe that there is a significant difference between beheading by terrorists in the context of the Islamic law of war with reference to the codes of Islamic law and beheading as a form of sanction for capital punishment. Consult Racehl Saloom, ‘Is Beheading Permissible under Islamic Law-Comparing Terrorist Jihad and the Saudi Arabian Death Penalty’, 10 UCLA Journal Int'l Law & Foreign Affairs (2005), pp. 221-224.

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main law of Saudi Arabia and is interpreted with full brutality. The country’s criminal law system is therefore very harsh, and severe punishments are implemented. They include public hanging, stoning, beheading,13 amputation, torture, and lashing. Regretfully, the country interprets Islamic social and moral norms in a very fanatic fashion. The core problem in terms of its judges is their broad discretion in interpreting the Shariah law, and those who carry out this interpretation lack proper knowledge of the legal disciplines. They issue very brutal fatwas, in violation of all principles of human rights law.14 Fatwa means a formal legal opinion, including a criminal or religious decree issued by an Islamic judge or leader. A fatwa is non-binding, but an authoritative legal deduction of certain matters. More accurately and in more detail, the borderline issues of fatwa may also depend on personal or political interests. A fatwa may not be issued against personal privacy or property. For example, A man went to a well-known Imam to ask for a fatwa because one day he inadvertently left the door to his house open, and a stray dog entered and urinated against the wall and on the floor used by the man for his prayers. The man was worried that the area was not longer pure and accepted for prayer. The Imam pondered the question of what would return the wall and floor to the level of purity necessary for prayers. He concluded that nothing short of tearing down the wall and re-building it would remove the impurity. Upon hearing the Imam’s conclusion, the man said that he come to see the Imam precisely because the impure wall was the party-wall separating the man’s house from the Imam’s. This prompted the learned Imam to reconsider, and he told the man that in this case ‘a little bit of water would purify the wall and the floor.’15

There is also such a thing as a good fatwa, which manifests a positive response by reducing poverty, increasing the principle of brotherhood, decreasing conflict, protecting the global environment, or preventing armed conflict. One example of a good fatwa is the ban on using nuclear

13

Id. This means all fatwas which encourage evil conduct, evil morality, evil attacks and evil use of force are against the philosophy of justice in Islamic law and therefore aggressive use of power. 15 M. Cherif Bassiouni, The SharƯah and Islamic Criminal Justice in the Time of War and Peace (Cambridge University Press, Cambridge, 2014), pp.87. 14

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weapons or possessing such weapons,16 as the use of these weapons constitutes a crime against humanity. Another example is a fatwa for the protection of environment. This fatwa was issued by Indonesia’s highest Islamic body regarding the protection of flora and fauna in the natural environment.17 The fatwa declared that the hunting and trading of endangered species, such as the Sumatran tiger, is against the principles of Islamic justice and the protection of the natural environment and therefore constitutes immoral behaviour.18 One may therefore conclude that since Islamic theory encourages good decision making and strictly forbids evil decision making, evil behaviour, and injustice, any fatwa that is issued and goes against substantive good of Islamic theory violates the basic principles of human rights law, including justice.

4. Integrity in Court The doctrine of integrity in Islamic law is approached in several ways. The concept of integrity and its respect also has a significant function in the justice system. In other words, individual integrity must always be 16

On rules regarding unlawful possession of various kinds in some countries of Europe such as Italy, Germany, Canada, and Spain see Ivan Salvadori, I Reati di possesso: Un’indagine dogmatica e politico-criminale in prospettiva storica e comparata (Edizioni Scientifiche Italiane, 2016), pp.163-180. 17 For arguments on eating or not eating fishes from certain water after Tsunami catastrophe see Fatwa on Fish Eating in the Tsunami Areas, available http://www. searo.who.int/entity/emergencies/documents/fatwa_on_fish_eating_in_tsunami_areas .pdf?ua=, visited on 30 January 2017. The relevant fatwa declares that ‘On the basis of the foregoing, the International Union for Muslim Scholars issues this fatwa for all people in the areas affected by the Tsunami disaster that it is perfectly permissible from the Islamic point of view to eat sea fish. Indeed, it encourages them to do so in order to protect their health, preserve their energy so that they can carry out their duties and functions in obedience to God, and guard themselves against any disease that may affect them as a result of malnutrition, should they refrain from eating fish. They should consider sea fish as part of the sustenance God has provided for them, as it gives them what they need of proteins and energy.’ 18 A member of the Indonesian Council of Clerics stated that the edict was worked out in consultation with environmental agencies and academics bodies of the National University in Jakarta. Available at http://www.dailymail.co.uk/sciencetech /article-2575739/Could-fatwa-save-TIGER-Muslim-leaders-declare-hunting-tradi ngendangered-animals-immoral.html#ixzz4XF7xyid2, visited on 30 January 2017.

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respected if a system of justice is to be powerful and have legal and moral value. Integrity in Islamic law implies the existence of a certain value of the law, which may serve to implement the traditional legal theories of the Prophet of Islam in practical reality. That is why testimony in an Islamic court has great value, as it does in other countries. If a testimony is false and contains incorrect information, it goes against the integrity of the victims, the accused, and the court. A similar philosophy can be seen in the concept of integrity in the jurisdictions of other states across the globe. Therefore, one of the serious questions and principles in the jurisprudence of Islamic law is the question of integrity. To Dworkin, “integrity means coherence in principle, and law must have integrity to have moral authority.”19 The notion of integrity in the Anglo-American legal system can also be found in the Islamic legal system. The entire legal system of Islamic law is, in reality, predicated on basic moral principles. The theory of law attempts to teach individuals to be morally responsible for their actions. It is obvious that each rule of law has to be consistent by means of coherent reasoning. Dworkin’s opinion is similar. According to him, for an individual to be considered trustworthy, the individual must act consistent with the moral principles of the law to which s/he is subject. Dworkin says, “integrity is ... an attitude that makes each citizen responsible for imagining what his society’s public commitments to principle are.” Dworkin’s concept of law encourages us to search for a basic framework for the law.

5. The Rejection of the Caste of Priesthood The proper theory of Islamic law prohibits all forms of monopolised interpretation. This is particularly so in cases of monopolisation of judicial procedures, decisions or judgments, and the application of inhumane punishments. As we shall later see, the application of penalties as described in the Holy Book does not exist in Islamic law. They were written with the hope that enlightenment would come to the Arab world and to the followers of Islamic thoughts in order to understand the ugly face of punishment in their societies. How could Islam prohibit infanticide and how could it enter men and women into the heaven of justice by the same foot and the same measure, but not recognise them as equal on earth and instead as punishable by stoning to death? 19 Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986), p.415.

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All these assimilated penalties existed in the cultures of the old societies, not only in the Arab nations, but also in Europe, China, Japan, and Latin America. Islamic law prohibits all these types of punishment as well as the intervention of priests in the life of citizens. In other words, the special clerical courts, which may be established for hearings involving highly religious or other highly private persons, should be recognised as a violation of the Islamic law of humanity. Under the correct theory of Islamic law, all human beings are equal and no one should receive preferential treatment under any Islamic regulation. This also applies to court procedures and sanctions: The Islam of Mohammad recognises no caste of priesthood, allows no monopoly of spiritual knowledge or special holiness to intervene between man and his God.20 Each soul rises to its Creator without the intervention of priest or hierophant. No sacrifice, no ceremonial, invented by vested interests, in need to bring the anxious heart nearer to its Comforter. Each human being is his own priest; in the Islam of Mohammad no one man is higher than the other.21

Professor Gibb from Oriental Studies at Oxford and Harvard reaches the following conclusion: “The master of science of the Muslim world was law. Law, indeed, might be said to embrace all things, human and divine, and both for its comprehensiveness and for the ardour with which its study was pursued, it would be hard to find a parallel elsewhere, except in Judaism.”22 What Gibb means is: if law is the master of society, that law cannot be an unequal law but must be an equal one, and an equal law certainly requires equal courts, equal procedures, and equal judgments. As is rightly said: Islam prevailed because it was the best social and political order the times could offer. It prevailed because everywhere it found politically apathetic peoples robbed, oppressed, bullied, uneducated, and unorganised, and it found selfish and unsound governments out of touch with any people at all. It was the broadest, freshest, and cleanest political idea that had yet come into actual activity in the world.23 20

Bosworth-Smith, R, Mohammad and Mohammadanism (London, 1889); Bukhush, Khuda, S, Contribution to the History of Islamic Civilization (Calcutta, 1950). 21 S. A. Ali, The Spirit of Islam (London: Allan, 1896, republished Delhi: Islamic Book Trust, 1981), p.1165. 22 Hamilton A. Gibb, Mohammadanism: An Historical Survey, 2nd ed. (Oxford University Press, 1955), pp.4-22. 23 H.G. Wells, The Outline of History: Being a Plain History of Life and Mankind (8th ed. London, Cassell, 1925), pp.615-4.

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As a whole, the pure Islamic philosophy is against any form of monopolisation of individuals by individuals or ownership by superior leaders. Man should not submit himself or herself to the orders or interpretations of religious commands given by priests, but submission should be to the notion of God, the sovereignty of knowledge, the strength of wisdom, the high value of forgiveness, and the morality of fairness.

CHAPTER EIGHT THE BASIC PRINCIPLES OF INTERNATIONAL CRIMINAL COURTS

1. The Fundamental Principles of Criminal Justice The terms of Islamic law leading to justice are clear.1 ‘When you rule over a person, you should rule with love and justice.’ Similarly, the main source of Islamic law clearly states that “whoever recommends and helps a good cause becomes a partner therein, and whoever recommends and helps an evil cause shares in its burden.”2 Keeping the good burden of international criminal justice is not easy. It is based on the fulfilment of certain principles, the respect of which is essential for the safeguarding of the fundamental rights of man. An appropriate international criminal justice system must therefore seek equivalent results, protecting and implementing certain basic principles of the machinery of justice. Likewise, Islamic criminal justice is based on the principle of legality. This principle also establishes the well-known principle of nullum crimen sine lege or nulla poena sine lege, which means that a behaviour cannot be treated as criminal unless some rule of law has already declared it to be criminal and punishable. These principles can clearly be seen in the common law and civil law systems of all states worldwide. Therefore, the three traditionally recognized elements of crime í physical, mental, and legal í are necessary. All of them also depend on the age of criminal responsibility. According to one opinion, Islamic criminal justice bases the concept of criminal responsibility on three elements: i) a person commits a prohibited act; ii) the act is committed by free will; iii) the offender is an adult and sane and can differentiate between right and wrong. According to the same opinion, the elements of crime in Islamic criminal law are more specifically the following: 1

‘He is the Best of judges.’ Q, 7:87; ‘All children of Adam have equal honour.’ Q, 17:70. 2 Q, 4:85.

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1. A clear provision which prohibits an act declining it a crime and specifies its punishment. This is known as the legal element of crime. 2. An action which amounts to the commission or omission of the particular act that is defined as a crime. This is known as the substantial element of crime. 3. Maturity, responsibility and accountability of the offender. This is known as the cultural element of crime.3

In addition, there are certain general principles of criminal law that have to be respected and should not be violated by the implementation of criminal justice. This includes not only, inter alia, the ICC but also the Islamic criminal justice system. These principles are de lege lata, nullum crimen sine lege, nulla poena sine lege, and ne bis in idem. The Arab Charter on Human Rights has also affirmed the above principles by stating, among others “No crime and no penalty can be established without a prior provision of the law.”4 The law most favourable to the defendant shall be applied in all circumstances. A quick overview of these principles may therefore be useful at this point.5 3

Anwarullah, The Criminal Law of Islam (Islamabad: SharƯah Academy, 2004), p.5. 4 Article 15. 5 See also the Arab Charter on Human Rights in Appendix. It is relevant to mention here that suggestions for the creation of an international Islamic legal system have been given in the Organization of the Islamic Conference, but without any outcome. “A weak point of the organization is identifiable in the profound differences between its member states in cultural, economic, and political experience and Islam represents the only glue which binds them together. Furthermore, from a more institutional viewpoint, the OIC is deemed not to have enough “power say” in international affairs as it deserves in the light of the large number of its members and of the strategic position they hold in international sea and air routes. The OIC is not endowed with an executive body similar to the UN Security Council and although a proposal to set up such an organ was already addressed at the Sixth Islamic Summit Conference held in Dakar in 1991 and at the Seventh Islamic Summit Conference held in Casablanca in 1994 no solution was reached. Despite these setbacks, during the almost thirty years of existence of the OIC the ideal of Islamic solidarity has reached a high degree of development in many fields surviving the change of the international scenario from the Cold War to the normalisation of diplomatic relations. … achieving the creation of the Islamic Court relies on the will of member states to increase the efficiency of the organization and of its internal framework. Such a process should prepare the ground for the full autonomy of the judicial system envisaged by the OIC and should eventually increase the role of the organization in the international community.” Michele Lombardini, ‘The International Islamic Court of Justice: Towards an International Islamic Legal System?’ 14 Leiden Journal of International

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2. The Principle of de lege lata De lege lata is a Latin term and means, in a juridical context, “the law as it stands.” This means that the de lege lata principle relates to the value of the existing law in contrast to what the law ought to be in the future. The law in force is thus an expression of the principle of de lege lata. It means that an international criminal court has to base its judgment on rules or provisions already in force at the time of commission of international crimes. Further, the principles of nullum crimen sine lege and nulla poena sine lege should be the core reason for the judgement of the court. The court must always avoid the application of the principle of ex post facto law or retroactivity. A simple explanation of the principle of de lege lata is that it should present the sum total of the norms and rules that have been put forth by all the people of our international legal and political community. Courts should embody those norms of international behaviour that nations have acknowledged as their values. Here we seek the recognition of an appropriate initial status quo in order to ensure that the principles of justice are based on fundamental elements of criminal law. In order for the role of international criminal justice to be correct, it should, with all its possibilities, be united with the juridical values of the principle of de lege lata. Equality in justice can hardly be accomplished if its fundamental intentions dismiss the reasons for the existence of de lege lata. The principle of de lege lata is a significant principle of international criminal justice. It constitutes one of the keys to recognition of the concept of crime. Neither the Statute of the ICC nor the principles of Islamic criminal jurisdiction can function without full respect for the principle. That is why Islamic international criminal law emphasizes the actions considered war crimes, crimes against humanity, and genocide.6 Historically, Islamic criminal jurisdiction could not have been established if the acts in question had not already been recognised as sinful or wrongful behaviour. However, under Islamic law, wrongful behaviour was and is divided into different categories, i.e., Hudud crimes, Qisas crimes, and taǥzƯr crimes. Each category has its own legal discipline and is evaluated differently. They may nevertheless represent the significant value of the principle of de lege lata. According to one writer, although there are some differences between the principles of legality in international criminal law and in Islamic law, Law (2001), pp.665-680, at 680. Available at https://www.cambridge.org/core/services /aop-cambridge-core/content/view/S0922156501000334 (Visited on 20 April, 2017). 6 See the relevant chapters.

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one cannot deny the fact that both legal systems are essentially based on the principle of de lege lata. He mentions the following: The Islamic criminal justice system recognizes the ‘principle of legality’ but apply them in a different manner. The Quran and the Sunnah mandate the application of ‘principle of legality’ to criminal legislation and judicial interpretation. But the system does not with some differentiation as between three categories of crimes: Hudud, crimes which are codified in the Quran, require a rigid application of the ‘principle of legality’. Qisas crimes, which are also stated in the Quran, permit some analogy for the different types of physical injuries and their compensation, and Ta’zƯr crimes, for which there are no stated prescriptions in the Quran, include either that which positive law may establish or that which the judge can find by analogy or in reliance on general principles found in the Shari’ a. The application of the principles of legality in Hudud crimes is parallel to the one followed in the positivist Romanist-Civilist-Germanic systems, while in Qisas and Ta’zƯr crimes, the application parallels the approach followed by the common law of crimes, the latter being even more flexible.7

Similarly, the Statute of the ICC is based on the principle of de lege lata, which means the ICC can only operate on its provisions. Consequently, in both legal systems, the principle of de lege lata refers to what is and is not enforceable in their jurisdictions. More specifically, the concept of de lege lata is used in conjunction with the concept of de lege ferenda and ex post facto law. The latter concepts also highlight the significant validity of the concept of de lege lata or the law in force, while the other concepts refer to the provisions that may be adopted for the future and which provisions that cannot be applied retroactively. The ICC and Islamic sources naturally confirm the prevailing law.

3. The Principle of Nullum Crimen Sine Lege The principle of legality or de lege lata protects individuals from being the subject of arbitrary civil or criminal jurisdiction. This principle also supports the principles of nullum crimen sine lege and nulla poena sine lege, expressing the legal notion of no crime and no punishment without a definite law. This also implies the basic principle of criminal law, namely that a conduct cannot be punished unless some rule of law has already declared the conduct to be criminal and punishable as such.

7

M. Cherif Bassiouni, Crimes Against Humanity in International law (1999), 156.

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Nullum crimen, nulla poena sine lege stricta relates to the prohibition of analogy in recognizing a crime or applying a sanction. This principle may also be called the principle of prohibition of analogy. Under international criminal law, this principle [of analogy] may be employed in favour of the accused, thus mitigating her/his punishment. This principle is an important guarantee worldwide to prevent acts from being considered criminal that were not criminalized at the time they took place. In other words, no international criminal court may apply the provisions of international criminal law to the conduct of a person if such conduct was not defined as a crime before the act took place. Thus, the legislator must intend to make an act a crime before it can be considered as having been committed. The law that defines the crime must also be accompanied by a code for its punishment. In other words, when an international court is examining whether the actions or omissions of a person constitute a crime, the court must base its judgment on definitions of crime adopted before its ruling. For this reason, the court should take into deliberation several important principles that are a part of the principle of nullum crimen sine lege. The provisions of the ICC and even Islamic international criminal justice encourage prosecutors and judges to base all aspects of a case not only on the principle of de lege lata but also on the principle of nullum crimen sine lege. This principle is also encouraged in other criminal systems. According to the ICC Statute “A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.”8 According to the Cairo Declaration on Human Rights in Islam, which is based on the principles of the main source of Islamic law, “A defendant is innocent until his guilt is proven in a fair trial in which he shall be given all the guarantees of defence.”9 Furthermore, the Declaration provides that “It is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him.” This means that both legal systems place great importance on the power of the legislator to determine and announce criminal conduct. The principle of nullum crimen sine lege indicates the inviolable integrity of individuals and therefore protects them from unjustified and unfair accusations. In other words, the liberties of individuals are safeguarded against the arbitrary and unwarranted interference of the authorities. Therefore, the ICC cannot recognize an act as a crime if such an act is not already prescribed within its Statute. The Court’s and Islamic 8 9

Article 22 (1). Article 19 (e).

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principles do not permit violation of the principle of nullum crimen sine lege when there is no regulation implying the criminality or the law is silent about certain acts. Historically, in Islamic practice, an accused person had to be set free from detention once the authorities have found him or her innocent. Thus, the court had to issue a verdict of innocence and freedom. Similarly, in the absence of such a law in the ICC Statute, the judges are bound to issue a verdict of innocence. The principles of human rights within both legal systems call on the application of the principle of nullum crimen sine lege.

4. Nulla poena sine lege Another important principle under the provisions of criminal law of most states worldwide is the principle of nulla poena sine lege, which means there should be no punishment without a law. In other words, punishment is only legal if there is a law defining the pertinent punishment at the time the crime is committed. This principle has also entered into the basic structure of Islamic criminal jurisdiction and the Statute of the ICC. The principle of nulla poena sine lege therefore aims at the criminalization of the application of retroactive law and increases the principle of objectivity of criminal procedures for the prosecution and punishment of criminals. In the system of international criminal justice, the principle of nulla poena sine lege also refers to the principle of nullum crimen, nulla poena sine praevia lege poenali. This principle is the embodiment of the elements of all three principles, namely the principles of de lege lata, nullum crimen sine lege, and nulla poena sine lege. It provides that no crime or penalty can be recognized as valid without previous regulations.10 Although Islamic international criminal law and the system of international criminal law emphasise the application of the principle of nulla poena sine lege,11 the principle may be violated if those crimes have not already been accepted by certain states. For instance, the Statute of the ICC has not been ratified by Sudan, China, Iran, Russia, the United States, and Israel. It holds true, however, that the universality principle as well as jus cogens norms encourage the prosecution of individuals who have committed genocide, crimes against humanity, war crimes, and the 10

Ali Mokhtar, ‘Nullum Crimen, Nulla Poena, Sine Lege: Aspects and Prospects’, 26 Statute Law Review, pp. 41-55. 11 Article 25 of the Statute of the ICC.

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crime of piracy. Even though these crimes have not been criminalized under the constitutions of certain states, their individuals can still be brought before the ICC because of the commission of the crimes. Similarly, Islamic law permits the prosecution of said crimes without due regard for the provisions of the legislation of certain states. This theory is based on the concept of crimes against mankind and violation of the fundamental principles of natural law.

5. Ni bis in idem The principle of ni bis in idem, which is Latin for “not twice for the same conduct” and intends to prevent multiple prosecutions for the same crime, has an important function within both the system of international criminal justice or the ICC and the notion of an Islamic international criminal court. The term ni bis in idem has also been called ne bis in idem, autrefois acquit, autrefois convict, the res judicata rule, and the prevention of punishment twice. The principle of ni bis in idem encompasses the most decisive axiom among the international human rights law instruments and is regarded an obligatory norm in international criminal law instruments.12 The principle is also strongly supported in Islamic human rights law or the sources of Islamic law. The principle of ni bis in idem has also had a great effect on the European Union system in the prevention of double jurisdiction and double punishment. It is a fact that enhanced judicial cooperation in Europe has modified traditional inter-state cooperation in criminal matters. As a result, many proceedings take place directly between the legal authorities of the criminal justice system. The principle of mutual recognition has been strengthened by the fact that states have been required to accept each other’s judicial decisions for the sheer reason of empowering the European criminal justice system. Therefore, many important parts of the criminal justice system in Europe are being implemented by way of cooperation, without particular reference to internal limitations. The European Union State Members may have certain similar provisions in order to recognise the criminal conduct of ISIS members. The principle of mutual recognition outlines the rules for pre-trial judicial decisions in areas such as evidence gathering, arrest, and seizure, which means an effective cooperation for the identification and arrest of ISIS members. 12

Consult Mansour Rahmdel, "The “Ne bis in idem” rule in Iranian criminal law", vol. 11 (3) Journal of Financial Crime (2004), pp.277-281, at 280. Available at https://doi.org/10.1108/13590790410809211 (visited on 26 July 2017).

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All judicial decisions undertaken under the sovereignty of one Member State may have a legal effect within the European Union as a whole. In addition, the European Arrest Warrant has replaced the traditional extradition procedure. The theory of mutual recognition encourages and strengthens the rapid surrender of suspects under European Union jurisdiction. It means that, in the end, the principle of mutual recognition causes the principle of ni bis in idem to be respected among the EU Member States. The significant value of the ne bis in idem principle has also been emphasized by the Supreme Court of the United States. The Court says that the ‘State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’13

5.1. Double Jeopardy The double jeopardy principle prohibits the prosecution and punishment of a person for a crime for which s/he has already been prosecuted. Therefore, the principle secures the right to be free from double jeopardy within the criminal law of different states. In other words, the ICC should not prosecute a person for conduct that was the basis of a crime for which the relevant person has already been convicted or acquitted of by the ICC.14 Under Islamic criminal jurisdiction, no one should be prosecuted for conduct that has already received appropriate attention by an authentic criminal jurisdiction. The Arab Charter on Human Rights has strongly emphasised the application of the principle of ne bis in idem. According to its provisions “No one may be tried twice for the same offence. Anyone against whom such proceedings are brought shall have the right to challenge their legality and to demand his release.”15 Furthermore, “Anyone whose innocence is established by a final judgment shall be entitled to compensation for the damage suffered.”16 13

Green v. United States, 355 U.S. 184 (1957). Article 20 (1) of the Statute of the ICC. 15 Article 19 (1). 16 Article19 (2). Article 25 of the same Charter recognizes that “Each State party to the present Charter undertakes to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” 14

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Nevertheless, the principle of ne bis in idem has been violated under the criminal law of certain Islamic states. They claim that, in certain situations, the theory of the principle goes against the social, cultural, economic, or political interests of the state. Therefore, the trend has been to examine each case separately and to establish the appropriate application of punishment later.17 In other words, under the provisions of Articles 6, 7, or 8 of the ICC Statute, no person who has been tried by another court for conduct proscribed under those articles shall be brought before the jurisdiction of the Court for the same criminal conduct. The ICC also permits the easing of the principle of ne bis in idem if it seems that the proceedings in other courts: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.18

The main purpose of criminal justice in Islamic law and the ICC is to prevent injustice. Thus, it would be contrary to the purpose of justice to punish a person twice for the same criminal conduct. The ICC regulations concerning the principle of ne bis in idem are not contrary to the general inspiration of Islamic justice, which prevents the unnecessary punishment of a person. This is based on the fact that the implementation of justice should be the first principle of Islamic human rights law, Islamic international criminal law, and Islamic international criminal justice. Here, I am not amplifying or exaggerating the principles of Islamic human rights or giving them priority over the world’s human rights principles, but I am pointing out the fact that the entire theory of Islamic law has been misunderstood since the dawn of its revelation í as has been the case with many other theories in the world, including Christianity. The merit of ni bis in idem and its practical value for maintaining justice is therefore crucial to the theory of an Islamic international criminal court. The value of the principle is also vigorously discussed in the statutes 17 Thus, this principle has, in part, been violated in practice. For instance, the criminal code of the Islamic Republic of Iran has permitted re-examination of the proceedings of other courts. See the Penal Code of 1982, which not only ignores international rules, but also the Islamic rules of criminal justice. Mansour Rahmdel, ‘The Ne Bis in Idem in Iranian Criminal Code’, 1, no. 5 Journal of Financial Crime (2004), pp. 271-281. 18 Article 20 (5) of the Statute of the ICC.

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of ad hoc international criminal courts. A clear example are the provisions of the Statute of the ICTY, which overlap in theory with an authentic Islamic criminal court.19 According to most Islamic legal interpreters, however, the proper implementation of punishment in Islamic criminal law or Islamic international criminal law is conditional to a number of other prerequisites. Among them, first, the offender may not have been punished for the same crime under the jurisdiction of another Islamic state. Second, forgiveness or amnesty precludes the concept of the application of punishment for the same crime. Third, punishment for the same crime is against the principle of justice in Islamic law. Fourth, the implementation of punishment for a previous crime is essentially against the integrity of humankind and therefore theoretically immoral. In addition, in order to recognise the crime, Islamic criminal justice considers whether the accused person had the capacity to commit the prescribed crime and the opportunity to choose an alternative. This is called the principle of free choice or free will. Further, as we have seen elsewhere, the offender must have intended to commit the crime. The Quran is clear in all these aspects and emphasises that: God does not impose on any soul a responsibility beyond its ability. Every soul receives whatever it gains and is liable for whatever it does. Lord, do not hold us responsible for our forgetfulness and mistakes. Lord, do not lay upon us the burden that You laid on those who lived before us. Lord, do not lay on us what we cannot afford. Ignore and forgive our sins. Have mercy on us.20

19 ‘1. No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 2. A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (a) the act for which he or she was tried was characterized as an ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted. 3. In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.’ Article 10. 20 Q, 2:286.

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In other words, the modern definition of the principle of ne bis in idem should be fully protected under pure Islamic criminal law. The concept of criminal responsibility cannot be applied twice for the same crime. This principle can therefore safely be used in case of establishment of an Islamic international criminal court. However, an Islamic state may violate this principle based on the fact that the relevant state may not recognise the validity of a judgment of a non-Muslim state. Definitely, unless there are certain conditions under which the offender should be punished based on acts that have not yet been penalized, application of punishment for the same crime that has already received punishment seriously violates the system of international human rights law.21 This is particularly evident in the case of the provisions of the International Covenant on Civil and Political Rights, which entered into force on 23 March 1976, in accordance with Article 49 of the Covenant.22

6. Subjects of Both Legal Systems The subjects of international law, in general, and the subjects of international criminal law, in particular, have been discussed from various points of view. This is also true concerning the system of Islamic international criminal law and justice. There has been a lot of controversy as to what does or does not constitute a subject under international law. Many legal scholars have expressed different opinions, and the general impression is that states and certain international organizations are considered the main subjects of the system of international law, respectively. Similarly, many scholars have expressed that individuals are also the subjects of international law. Their position is still unresolved. One explanation for this is that, in the system of international law, individuals, unlike states and certain international organisations, fail to meet the traditional requirements to be admitted to the court, such as a legal standing. Furthermore, any complaint raised by an individual is presented by her/his state. Under Islamic law, the individual is strongly emphasized and considered the first subject of Islamic theory and the law.

21

Rahmdel, note 17. It is noted that, under the imperial regime and the Islamic regime, the principle of ne bis in idem has been recorded differently. Under the former, judgment and punishment abroad could mitigate punishment of the crime in the consideration of an Iranian court. Id. p. 278. Here, we must note that the provisions of the former imperial regime were in force when the European Union also had serious problems with the question of ne bis in idem. 22

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Other subjects under Islamic law are only a matter for legislation and as such have solely a political nature. One cannot, however, disagree with the fact that individuals may bring a case before regional judicial bodies such as the European Human Rights Court. This court, unfortunately, allows individuals only in a beneficiary function and does not admit them as the main subjects of the law. Even if one accepts that individuals are subjects of international law, their legal position is certainly vastly different from other subjects under international law. It may therefore be asserted that individuals are, presently considered subjects of international law but to a limited degree. Within the provisions of international criminal law, however, their position as subjects has become quite settled.23 Contrary to the above, Islamic international law gives special consideration to individuals and recognises them as the basic subject of its law.24 Furthermore, “the Muslim law of nations was ordinary binding upon individuals rather than territorial groups. For Islamic law, like all ancient law, had a personal rather than a territorial character and was obligatory upon the Muslims, as individuals or as a group, regardless of the territory they resided in. ... from a philosophical viewpoint, ... Islam, as a universal religion, laid emphasis on individual allegiance to a faith which recognised no boundaries for its kingdom: for under a system which claims to be universal territory ceases to be a deciding factor in the intercourse among people.”25 Islamic international law also accepts states and organizations as its subjects, and therefore its provisions can be applied to all these subjects equally without creating any serious contradictions.26 The reason for this is 23

See Malekian, Vol. I International Criminal Law, pp. 50-49. See, for instance, Ghunaimi, The Muslim Conception of International Law and Western Approach, pp.127-128. 25 Khadduri, War and Peace in the Law of Islam, pp. 45-46. Furthermore, ‘Piety and obedience to God were the criteria of a good citizen under the Islamic ideology, rather than race, class, or attachment to a certain home or country. Failing to achieve this ideal, the Muslim jurists did not give up the concept of the personality of the law, that is, its binding character on individuals, not on territorial groups.’ Id. p.46. 26 According to one writer, the subjects of Islamic international law are i) every independent state which has some type of relations with foreign states, ii) part sovereign states iii) rebels who have acquired a power and a territory having independent international legal personality, iv) pirates and highwaymen, v) resident aliens in Islamic territory, vi) citizens of Muslim states who reside in foreign countries, vii) apostates, viii) internationally protected persons who are subjects of a Muslim state. Muhammad Hamidullah, Muslim Conduct of State (1945), p.11. 24

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that Islamic law is originally divine command and therefore builds its recognition of subjects on the spiritual personality of an individual and not on the fulfilment of juridical conditions, territorial acquisitions, and military installations. The philosophy underlying this rationale is that social qualifications do not constitute an integral part of an individual. Thus, Islamic international criminal law provides equality before the law for all its subjects. States and organizations remain its beneficiary subjects.

7. Recognition of Crimes within Both Legislations What does and does not constitute an international crime has been variously discussed. This is why an acceptable enumeration of the most identified international crimes in the system of international criminal law has not yet been accomplished. One of the principal reasons for this is that not all states have participated in the formulation of all the international criminal conventions and therefore are not subject to provisions to which they have not given their written consent. This situation has existed for a long time and was particularly notable after the Second World War. For this reason, there have been various movements within the United Nations to codify international crimes and bring the most identified international crimes under the provisions of one overall code. First attempts by the United Nations in this regard began in early 1948 and continued up to 1954. The result was a Draft Code of Offences against the Peace and Security of Mankind submitted to the International Law Commission in 1954. Although the Draft Code was not successful, it did become an essential impetus for the future development of the system of international criminal law. The 1954 Code was suspended for several reasons, one of which was the very controversial question as to what constitutes aggression. After the Definition of Aggression in 1974, the Draft Code was reconsidered in the United Nations in 1978. The International Law Commission worked on the question of what constitutes an international crime under the provisions of the Code of Crimes against the Peace and Security of Mankind, and the Special Rapporteur submitted a Draft Code to the Commission in 1991. The Code was taken up again in 1994, but no agreement has been reached to date. One cannot, however, overlook the fact that many of the crimes listed in the Draft Code were integrated into the core crimes in the Statute of the ICC in 1998. The Statute does not represent an international draft code. Nevertheless, it underlines some of the most significant aspects of international criminal law and creates one of the most important codes in

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terms of the recognition of certain international crimes, e.g., crimes against humanity, genocide, apartheid, discrimination, war crimes, torture, slavery, rape, human trafficking, and violations of the international humanitarian law of armed conflict.

8. Categories of Crimes It may be useful to enumerate the international crimes recognised in the system of international criminal law, the Code of Crimes against the Peace and Security of Mankind, and Islamic international criminal law.27 Below is the list of international crimes that appears in the code of international criminal law or Islamic international criminal law: 1. Aggression 2. War crimes 3. Intervention 4. Colonial domination and other forms of alien domination 5. Unlawful use of weapons 6. Mercenaries 7. Slavery 8. Crimes against humanity 9. Genocide 10. Racial discrimination / Apartheid 11. Torture 12. Unlawful medical human experimentation 13. Piracy 14. Hijacking 15. Taking of hostages 16. Crimes against internationally protected persons 17. Terrorism 18. Drug offences

27

Crimes under Islamic law may be divided into the following categories; firstly, those, which constitute crimes against a person such as, murder, fornication, adultery, or bodily harm. The second category involves crimes against property such as theft and highway robbery. The third category includes crimes against honour such as calumny against chastity, the consumption/sale/purchase/ importation or exportation of alcohol and narcotics, and involvement in prostitution. Consult also Mansour Rahmdel, 'International Judicial Criminal Cooperation in Combating Narcotic Drugs Crimes in Iranian Law’, 10/4 European Journal of Crime, Criminal Law and Criminal Justice (2002), pp.294-302.

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19. Crimes against cultural property28 20. Crimes against the natural environment 21. Unlawful acts against certain establishments on the sea and maritime navigations 22. Mail offences 23. Falsification and counterfeiting currency 24. Obscene publications offences 25. Prohibitions on alcohol (Islam) The above list of crimes demonstrates that there are indeed few differences between the two systems. Needless to say, the Code of Crimes against the Peace and Security of Mankind is an integral part of the system of international criminal law, and many of its core crimes have entered the Statute of the ICC and the ICTY or the ICTR. What is really important here is that the differences between the two concepts are more political than juridical. The legal or political implementation of both systems depends on the interpretation of their provisions, and therefore their implementation may, in certain circumstances, differ. An international criminal court of both legal systems must not ignore the principle of nullum crimen, nulla poena sine lege praevia. This means that there are strict prohibitions against the application of retroactive or ex post facto law. Also, an international court is not permitted to retroactively 28

The ICC has recently dealt with the concept of crime against cultural heritage. Ahmad Al Faqi Al Mahdi from Niger has been charged by the International Criminal Court in 2015. He has “intentionally directing attacks against protected objects.” The case the Prosecutor v. Ahmad Al Faqi Al Mahdi is the first relevant case in the topic of crimes against heritage. The situation in Mali was referred to the Court by the government of Mali on 13 July 2012. Ahmad Al Faqi Al Mahdi was condemned for war crimes in pursuant to article 25(3)(a) (perpetration and coperpetration); article 25(3)(b) (soliciting, inducing); article 25(3) (c) (aiding, abetting or otherwise assisting) or article 25(3) (d) (contributing in any other way) of the ICC Rome Statute, of the commission of a war crime alleged by the Prosecutor. The following cultural objects are listed 1) the mausoleum Sidi Mahmoud Ben Omar Mohamed Aquit, 2) the mausoleum Sheikh Mohamed Mahmoud Al Arawani, 3) the mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir, 4) the mausoleum Alpha Moya, 5) the mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi, 6) the mausoleum Sheikh Muhammad El Micky, 7) the mausoleum Cheick Abdoul Kassim Attouaty, 8) the mausoleum Ahamed Fulane, 9) the mausoleum Bahaber Babadié, and 10) Sidi Yahia mosque (the door). Available at https://committeeforculturalpolicy.org/first-ever-prose cution-of-cultural-destruction-as-a-war-crime/ and https://www.icc-cpi.int/mali/almahdi/documents/almahdieng.pdf (visited on 21 April 2017).

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introduce more serious sanctions against the convicted person. The principle is also called the principle of non-retroactivity. Such courts must also respect the principle of nullum crimen, nulla poena sine lege scripta. The court must exercise a considerable number of cautions in the application of punishment, which is the consequence of unwritten law or the customary law of different nations. Under the principle of legality, the law must also be clearly articulated. If the relevant, applicable provisions are an integral part of international customary law, they should be systematically recognised in the practice of the overwhelming majority of nations. This principle may also be called the principle of identified punishment. There is yet another principle of criminal justice that implies the prohibition of the recognition of an act as a crime if its elements and pertinent punishments are not clearly articulated in the law. This is the principle of nullum crimen, nulla poena sine lege certa, which may also be called the principle of definite elements. A clear example is provided by the elements of crime within the Statute of the ICC.

9. Proper Distribution of Justice In his excellent three-volume oeuvre, Professor Nasser Katouzian, the father of law in the Persian history of positivism, deals with the significant role of the proper distribution of justice under the title Step Toward Justice.29 In the first volume, he indicates that, in law, there are two high values. One is the value of discipline and the other the value of fair division of justice. These two values complement each other. The territorial jurisdiction of a country that does not own discipline, does not own justice either, and, vice versa, a territorial jurisdiction that does not fulfil the principles of justice, has no discipline of practical value either. For instance, discipline in a prison is the highest notion of discipline. However, discipline without justice and security without justice have no substantial value. The factor that gives potential value to discipline and security and is the essence of these two subjects is the integrity of justice. This also applies to civil and criminal law. The fulfilment of the principle of de lege lata in international criminal law and the principle of nullum crimen sine lege are of vital importance for the proper development of the system of international criminal justice. Thus, when one analyses international criminal norms or certain international criminal judgements, one may point to the criteria of the 29

The volumes are in Persian language.

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application of the principle of nullum crimen sine lege in certain situations. Clearly, any international criminal violation must be prosecuted and punished without any political, juridical, economic, and military discrimination between the legal and physical persons who are violating the provisions of international criminal law. This is what the theory of criminal justice is about. The principle of nullum crimen sine lege actually became one of the most important questions of international criminal jurisdiction after the Second World War. The question was mainly deliberated in cases of war crimes, crimes against peace, and crimes against humanity. These three categories of international crime, which were drafted in the London Agreement, started a very serious controversy between national and international legal scholars on the legal validity of the jurisdiction of the tribunals. The problem was that many scholars maintained that parts of the three categories of international crime established in the London Agreement were retroactive law and therefore did not correspond to the existing law, i.e., de lege lata. The conflict became very pronounced in the international legal community. Even the United Nations Commission for the affirmation of the principles of the Nuremberg Tribunal could not solve this controversial judicial issue.30 The question in the United Nations was: if 30 For consideration of the Nuremberg Tribunal see generally Sheldon Glueck, ‘By What Tribunal Shall War Offenders Be Tried?,’ 56 Harvard Law Review 1059 (1942-3); Sheldon Glueck, The Nuremberg Trial and Aggressive War (New York, 1946); The Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg 1946, H.M. Stationary Office Cmd. 6964; Robert, H Jackson, ‘Forward the Nürenberg Trial Becomes a Historical Precedent,’ 20 Temple Law Quarterly (1946-7); Henry, L. Stimson, ‘The Nuremberg Trial, Landmark in Law,’ 25 Foreign Affairs 179 (1946-7); Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law,No. 10 ( Nuremberg, 1946-1949; George Augustus Finch, ‘The Nuremberg Trial and International Law,’ 41 American Journal of International Law 20 (1947); Hans Kelsen, ‘Will the Judgement of the Nürenberg Trial Constitute a Precedent in International Law,’ 1 International Law Quarterly 153 (1947); Arthur, K Kuhn, ‘International Criminal Jurisdiction,’ 41 American Journal of International Law 430 (1947); F.B. Schick, ‘The Nuremberg Trial and the International Law of the Future,’ 41 American Journal of International Law 770 (1947); Quincy Wright, ‘The Law of the Nuremberg Trial,’ 41 American Journal of International Law 38 (1947); International Military Tribunal, Trial of the Major War Criminals before International Military Tribunal in Nuremberg (1947); Hans Ehard, ‘The Nuremberg Trial against the Major War Criminals and International Law,’ 33 American Journal of International Law 223 (1949); Trials of War Criminals before the Nuremberg Military Tribunal under the Control Council (1951). Farhad Malekian, International

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the principles of the Charter of the International Military Tribunal were an integral part of the system of international law or nullum crimen sine lege, why was it necessary to reaffirm them again under the authority of the United Nations Organization?31 Therefore, one of the essential reasons for reconsideration of the principles of the Charter of the Military Tribunal in Nuremberg in the United Nations is the principle of nullum crimen sine lege.32

Criminal Responsibility of States: A Study on the Evolution of International Responsibility of States with particular Emphasis on the Concept of Crime and Criminal Responsibility (Stockholm: Almqvist & Wiksell International, 1985). 31 No answer was given to the question, and the consequence was that the question of the legality of the principles of the Charter of the Nuremberg Tribunal has stagnated in the United Nations until this day. 32 It was obvious that many of the provisions of the Tribunal were not a part of the principle of nullum crimen sine lege. In fact, it was argued by many international lawyers that the provisions of the Tribunal violated the juridical character of the principle. It was strongly believed that the question was not whether the German military authority had violated international criminal law or committed crimes against the Jewish nationals of the states of Europe. Obviously, most of the acts committed by the German or other nations against the Jewish nationals could be brought to justice and be recognised as grave violations of international criminal law by many European States if they had been committed under the contemporary system of international criminal law. But the serious problem was that the crimes recognised by the Tribunal in Nuremberg had not yet been drafted under the system of international criminal law. Thus, the question was not the legality or the illegality of the acts of the German military authorities, but the very significant character of the principle of nullum crimen sine lege.

CHAPTER NINE CREATION OF AN ISLAMIC INTERNATIONAL CRIMINAL COURT

1. The Dilemma of the Court “You do not do evil to those who do evil to you, but you deal with them with forgiveness and kindness.”1 One of the most serious problems within the system of international criminal law has been the problem of its implementation, its forgiveness, and its punishment.2 The problem has not merely been how to enforce the law, but how to bring the perpetrators of international crimes under criminal jurisdiction for prosecution and punishment. Attempts to bring the accused persons under criminal jurisdiction, however, have long been discussed in the international legal and political communities. Two of the most well recognised, positive contributions to the problem of the implementation of international criminal law are the Nuremberg and Tokyo Tribunals. The Statute of the Nuremberg Tribunal relied on the London Agreement of 1945 and the Tokyo Tribunal on the Proclamation of 1946. The purpose of both tribunals was to bring the perpetrators of crimes against humanity, war crimes, and crimes against peace before their jurisdictions in order to apply the concept of international criminal responsibility and punishment. Although the tribunals worked towards this 1

The second source of Islamic law. Suzanne Katzenstein, ‘In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century’, 55 (1) Harvard International Law Journal (2014), pp.151-209. Available at http://www.harvardilj.org/wp-content/uploads/ 2014/03/HILJ_55-1_Katzenstein.pdf (visited on 2 March 2017); George A. Finch, ‘Draft Statute for an International Court’, editorial comment 46 American Journal of International Law (1952), pp.89-98; Quincy Wright, ‘Proposal for an International Criminal Court’ 46 (1), American Journal of International Law (1952), 46. 60-72; Stephen C. McCaffrey, ‘The Thirty-Seventh Session of the International Law Commission’ 80American Journal of International Law (1986), pp.186–188. 2

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purpose, they were not entirely successful in the attribution of criminal responsibility, due to the fact that most of the perpetrators could escape effective prosecution in one way or another. The above categories of crimes were not, however, respected after the Second World War and, in fact, had been committed by many states í mostly by those states that were drafters of the Charter of the Nuremberg Tribunal, among them the United States and the former Soviet Socialist Republic. The killing of large numbers of civilians under the power of the United States government in the prolonged Vietnam War is one of the most obvious examples. The Vietnam War, in particular, has been inextricably linked with the commission of genocide, crimes against humanity, and crimes against peace. No international criminal tribunal was established for those crimes. One can only mention the non-governmental international criminal tribunal established by Bertrand Russell in London, Stockholm, and Copenhagen, which had no authority to enforce the law. This tribunal is known as the Bertrand Russell Tribunal. Even after the end of the Cold War between the United States and the Soviet Socialist Republic, the system of international criminal law could not be enforced. This non-enforceability of the principles of international criminal law was reflected all over the world in torture, rape, killing, murder, disappearance, genocide, and various types of racial humiliations. Among the most horrible examples is the grave violation of the system of international criminal law committed by the Serbian armed forces against the Muslim population of Herzegovina, which ultimately led to the establishment of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY). The tribunal has an ad hoc nature and is a body of the United Nations. A more or less similar tribunal was established in Rwanda, known as the International Criminal Tribunal for Rwanda (ICTR). The principal function of both tribunals has been to prosecute the perpetrators of war crimes, crimes against humanity, genocide, and serious violations of the laws of armed conflict. The repeated violations of the system of international criminal law finally resulted in the formulation and ratification of the Statute of the permanent International Criminal Court (ICC). The Court is based on treaty law and operates according to the principle of complementarity. The power, functions, and machinery of the Court are compared with the Islamic criminal justice system below.

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2. The ICC in Islamic Codes There are obviously different criminal justice systems worldwide. But this does not necessarily mean that there are vast differences between systems in terms of the principal idea of prosecuting accused persons. All these criminal justice systems, if they are based on the equal application of the law and appropriate jurisdiction, seek to criminalize certain acts and bring the perpetrators of criminal conduct to prosecution and punishment. But since all these criminal systems under national jurisdictions do not apply the law sincerely or, in other words, are prejudiced in the application of criminal responsibility for various reasons, they ought to be complemented by other courts. This is especially true in the case of international crimes and as regards the criminal responsibility of leaders who may be able to escape prosecution and punishment in one way or another. The situation has been more tangible in the case of crimes against humanity, war crimes, genocide, and aggression. Moreover, Although the International Criminal Court (ICC) has been mostly hailed as a victory, Islamic states still regard its application of international criminallaw norms with scepticism. The Rome Statute instructs the Court to apply general principles of law derived from national laws of legal systems of the world including the national laws of states that would normally exercise jurisdiction over the crime but, so far, the Court has relied purely upon Western inspiration and may fail to acquire the legitimacy to establish a universal system. Among the legal systems that are unjustifiably neglected by the ICC is the Islamic legal tradition. … The principles of Islamic law are, for the most part, consistent with internationally recognized norms and standards, particularly those enshrined in the Rome Statute, and are on an equal footing with the common and Continental legal systems that are currently employed by the Court in the search for general principles of law.3

Together, the above reasons have become a strong underpinning for the creation of an Islamic international criminal court. It is, however, important to stress that the basis for the creation of the ICC should not be interpreted as a permission to go against other criminal jurisdictions around the globe. This means that the “establishment of the Court” stated 3

Mohamed Elewa Badar, ‘Islamic Law (SharƯah) and the Jurisdiction of the International Criminal Court’, Leiden Journal of International Law, 24 (2011), pp. 411–433, at 411. Available at http://nrl.northumbria.ac.uk/13566/1/Badar__Islamic _Law_and_the_Jurisdiction_of_the_ICC_-_LJIL_-_Published_Version.pdf (visited on 20 April, 2017).

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in part one of the Statute does not necessarily contradict the basic principles of criminal justice in other legal systems. In other words, the Statute of the ICC cannot be regarded as preventing the system of Islamic criminal jurisdiction or violating its legal provisions. The reasons are as follows: —The ICC is based on treaty law. Treaty law is one of the fundamental sources of Islamic international criminal law as long as treaty law does not violate the provisions of Islamic international law. Since a considerable number of Islamic nations or states have ratified the Statute of the ICC, its provisions do not contradict Islamic criminal norms. In other words, the Statute of the Court would not have been ratified if there had been serious contradictions between these two distinct legal systems. —Like Islamic international criminal law, the Court aims to bring the perpetrators of international crime before its jurisdiction. The fulfilment of Islamic provisions for the prosecution of criminals, but according to an international standard and by international prosecutors and judges. This also means that the creation of an Islamic international criminal court is not only possible but would help the International Criminal Court implement its international provisions by other methods of criminal jurisdiction, i.e., the Islamic theory for Islamic nations. —Islamic international criminal law is based on Shariah or the Islamic code. The ICC is based on its own Code or the Statute. The difference is that the Statute of the ICC would not have been regarded as a legal statute if it had been very different from the principal intentions of Islamic criminal law, an Islamic international criminal court, and the Islamic understanding of justice. In other words, the Statute of the ICC is the product of the development and modernization of different criminal legal systems, including Islamic law.4 Consequently, the establishment of an Islamic international criminal court will be useful for the corpus juris of international criminal justice and the prevention of international crimes. —The ICC is accepted in almost all nations worldwide. Islamic criminal justice has not been as successful in gaining acceptance by all nations of the world but has presented its motives and interests in the prosecution of criminals by accepting the Statute of the 4

For changes in Islamic law see Hashim Kamali, Middle Path of Moderation in Islam: The Quranic Principle of Wasatiyyah (Oxford: Oxford university Press, 1915).

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Court. Although the ICC has its own international legal personality and is therefore an entirely independent body, its power and legislation are based on inquisitorial and adversarial legal systems and has consequently also benefited from the Islamic legal disciplines. In addition, the accusatorial principle is an integral part of its corpus. —The International Criminal Court and even an Islamic international criminal court should in no way violate the norms and principles stated in the Statute of the International Criminal Court. An Islamic international criminal court, if it is established, must always respect certain positions, such as the prevention of impunity and equal treatment of all those who have come under its jurisdiction. Both the ICC and even the hypothetical concept of an Islamic international criminal court are obliged to demand international criminal responsibility from all those who violate their provisions and commit crimes against humanity, war crimes, and genocide. This is also the purpose of Islamic criminal jurisdiction “at home,” provided the given authorities respect them. —Another major aspect is that, of the fifty-seven member states of the Organisation of Islamic Cooperation, twenty states are also member parties of the International Criminal Court. This is an outstanding achievement for the Islamic world. It implies the fact that the differences between Islamic sources, Islamic criminal law, Islamic international criminal law, Islamic humanitarian law of armed conflict, and Islamic international criminal justice and the criminal laws of other nations, international criminal law, international humanitarian law, and international criminal justice are more superficial and political in nature. A similar conclusion may be drawn concerning human rights law. Certainly, any politician of an Islamic or a Western state who fails to grasp the large number of similarities between these two legal systems is diminishing the value of Islamic legal philosophy and Western legal theory.

3. Substantive Crimes in the Islamic Criminal Code An Islamic international criminal court can only function based on a statute listing similar substantive crimes as the ICC. The function of Islamic criminal justice is to create justice and to establish jurisdiction over those who have violated certain rules or regulations that are within its constitution or have come into existence because of international treaties. In other words, although both legal systems, i.e., an Islamic international

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criminal court and the ICC, may have different attitudes to and different theories of criminalization, they contain more or less similar schedules for the implementation of the law and justice. Both systems want the prosecution and punishment of the perpetrators of transnational or international crimes. The substantive crimes under the provisions of the ICC are war crimes, crimes against humanity, genocide, and aggression.5 All these crimes may also be prosecuted and punished under Islamic jurisdiction. The provisions of an Islamic international criminal court may define which acts constitute war crimes, crimes against humanity, genocide, and aggression.6 Permission to deal with the crime of aggression under Islamic law does not necessarily rest on the decisions of legal authorities but rather on the sources of the law. This may be regarded as one of the differences between the two legal systems of international criminal courts and their implementation. In other words, while the Statute of the ICC recognizes aggression as a core crime, to this day, its prosecution has been political in nature.

4. Completing the Islamic Code by the Complementarity Principle When the Statute of the ICC was drafted, there were many different opinions concerning its jurisdiction. The reason for this was very simple: many states were reluctant to submit all criminal cases of international crimes to the jurisdiction of the Court. Thus, the problem was not the legal characterization of the ICC, but how to convince the negotiating parties to agree to the Statute of the Court. The Islamic states, like many other states, had the same difficulty. The problem was finally solved in a very diplomatic manner, thanks to political circumstances surrounding the establishment of the ICC, which coincides with the philosophy of common and civil law, including the Islamic philosophy of criminal justice: the complementarity principle. Its purpose was twofold. It means that the “literal understanding of the term ‘complementary’ conveys that the Court and States should work in unison í by complementing each other í in reaching the Statute’s overall goal, i.e., to fight against impunity for the commission of the most serious crimes of concern to humankind.”7 5

See Articles 5 to 8. For each one of these crimes, see the relevant chapters. 7 Case: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi Situation: Situation in Libya, Dissenting Opinion of Judge Anita Usacka Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 6

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According to the main purpose of the Statute, the prosecution and punishment addressed primarily the rights, obligations, and duties of state parties, and the jurisdiction was taken into account under the principle of complementarity. The principle provides the rights and obligations of the ICC for the prosecution and punishment of perpetrators of international crimes whenever the state parties, for one reason or another, do not bring the violators of the provisions of the Statute under their own criminal jurisdiction. The Statute has clearly stated that the ICC “shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.”8 Accordingly, the ICC has two significant jurisdictions for the application of its law a) the criminal jurisdiction of different states, including the Islamic nations, b) its own jurisdiction. Therefore, establishing an Islamic international criminal court may be useful for the international legal and political community, may cultivate trust in criminal law and justice, and may eventually reduce the commission of serious crimes in international law. The potential establishment of an Islamic international criminal court would significantly minimise the contradiction between the requirements of the principle of complementarity in national and international courts. Clear examples are the cases against Muammar Gaddafi9 and the Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi situation: the situation in Libya involving a serious legal issue between the Appeals Chamber of the ICC and Libya’s appeal. The majority in the Appeals Chamber confirmed the impugned decision and dismissed Libya’s appeal. This was because Libya was unable to obtain the necessary evidence and testimony against the accused in its national judicial system.10 Consequently, it seemed that it was unable entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi" (ICC-01/11-01/11-547-Red), (21 May 2014) Appeals Chamber, Judgment, para.19, 10/30. Available at https://www.icc-cpi.int/Pages/record.aspx?doc No=ICC-01/1101/11-547-Red. 8 Article 1 of the Statute. Italics added. 9 The case against Gaddafi was terminated on 22 November 2011. This was based on the fact that Gaddafi was killed in a riot against him by the order of CIA in which Barak Obama and Hillary Clinton had decisive roles. Clinton in a famous video gladly reveals that ‘We came, we saw, he died’. Available at https://www.youtube.com/watch?v=Fgcd1ghag5Y visited on 23 March 2015. 10 Case: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi Situation: Situation in Libya, Judgment on the appeal of Libya against the decision

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to carry out its proceedings pursuant to Article 17(3) of the Statute.11 It is, however, relevant to note that, although Saif Al-Islam Gaddafi was taken under control by the Zinatan militia12 and condemned to death in absentia by a court in Tripoli in 2015, he was released in 2016.13

5. Primacy of Jurisdiction What is indeed important within the appropriate Islamic criminal jurisdiction is that justice be done in terms of the rights of international society, including the victims. Thus, it makes no difference whether the of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, (ICC-01/11-01/11-547-Red), (21 May 2014), Appeals Chamber Judgment, Separate Opinion of Judge Sang-Hyun Song, para.1, p.1/15. Available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC -01/11-01/11-547-Red. 11 See also Case: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi Situation: Situation in Libya, Dissenting Opinion of Judge Anita Usacka Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi" (ICC-01/11-01/11-547-Red), (21 May 2014) Appeals Chamber, Judgment, para.15, 8/30. Available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/1101/11-547-Red. The dissenting opinion correctly puts forth that ‘At the beginning, two main positions were taken in relation to the understanding of complementarity, which changed gradually over the years. On the one hand, it was expressed that there should be a strong presumption for state sovereignty, which meant that the Court would not be able to intervene if a State had an operational judicial system and undertook a "bona fide" investigation and/or prosecution. On the other hand, it was stated that the Court should have primacy of jurisdiction. A view that sought to balance these two positions was that the Court should not be merely residual in character, but, at the same time, should respect the primacy of national jurisdictions.’ This is why an Islamic international criminal court may reduce the ongoing conflict between the national and international court. The approach to the applicable codes of Islamic nations and of an Islamic international criminal court are similar and have mutual transparency. 12 Saif Al-Islam Gaddafi was one of Gaddafi’s sons. He was captured under the guise of political diplomacy by the intelligence agencies of the United States, which ultimately culminated in the Libyan civil war and the destruction of the country. Saif Al-Islam Gaddafi was captured by the Zinatan militia in Southern Libya on 19 November 2011. The Libyan civil war was a series of civil wars arranged by the CIA and a number of other states’ intelligence agencies in the oil regions and arose from the fake events of 11 September 2011. Consult the excellent book by American professor of political science Michel Chossudovsky, The Globalization of War: America’s “Long War” against Humanity (Canada: Global Research, 2015). 13 The Court was strongly criticised internationally.

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ICC applies the provisions of international criminal law in the Court or not. What really matters is that the interests of all legal systems, including the Islamic one, are met.14 The basic philosophy is that Islamic criminal jurisdiction respects all treaty provisions that have been entered into on an equal footing and does not violate its fundamental sources. In other words, the provisions of the Statute that the “Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State,”15 do not contradict Islamic criminal justice. This theory is valid as long as the ICC does not violate its own law or the principles of international human rights law by discriminating between criminals. That is why establishing an Islamic international criminal court may in no way contradict the purpose of the ICC. It will have the same method of jurisdiction of inquisitorial and adversarial systems, as both systems have had great effects on the prosecution and punishment of criminals. Moreover, it must be recalled that the exercise of the Court’s jurisdiction over Islamic nations, like other nations, is subject to several conditions. These include: a) that the state does not initiate any criminal jurisdiction; b) that the state refuses to prosecute certain persons; c) that the criminal jurisdiction initiated by the state was very narrow and failed to be objective regarding the case. All these provisions are in conformity with Islamic criminal jurisdiction. The Islamic philosophy of criminal law rejects the application of the principle of impunity and its development. With the establishment of an Islamic international criminal court, we would apply the same legal system embodied by the corpus juris of international criminal law but more powerfully, more successfully, less politically, and less critically in the eyes of the international legal public. 14 For example, according to one opinion ‘there is no doubt that the Arab-Israeli conflict is negatively affecting the course of international criminal justice in the Arab world. It is believed that some Arab States’ decision not to ratify the Rome Statute is affected to a certain extent by that conflict. Some Arab leaders hold the point of view that committing themselves to the rules of the Rome Statute could limit their power to defend themselves against any potential aggression, especially if a decision on the occurrence of the crime of aggression lies within the control of the Security Council. They believe that in such case the international justice system will work in favour, for example, of Israel supported by its Allies. This might explain why the crime of aggression is of great concern to the Arab States.’ Adel Maged, ‘Arab and Islamic SharƯah Perspectives on the Current System of International Criminal Justice’ International Criminal Law Review 8 (2008) 477– 507, at 487. 15 Article 4 (2).

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6. Prevention of Impunity The most fundamental idea of Islamic criminal jurisdiction is the abolition of the principle of impunity. The idea is also one of the key elements for the creation of the court. The reason is very simple. No criminal system wishes to release convicted persons without appropriate punishment. The idea is to create justice and apply it in a way that does not harm society, the accused, the convicted, the imprisoned, the victim, and the witness. Thus, if the Court challenges the application of the law in an Islamic nation, it should not be interpreted as a violation of Islamic criminal jurisdiction. As an established element of justice, the principle of nonimpunity is considered today one of the most recognised principles of international customary law and has been applied in the Islamic philosophy of criminal law for a long time. Islamic sources do not permit impunity for crimes against humanity, war crimes, and genocide. Also, many of the verses of the Qu’ran are based on the principle of non-impunity. Thus, if an Islamic international criminal court exercises its jurisdiction with respect to a crime referred to in its statute, this does not create any contradiction with the provisions of the Statute of the ICC. Accordingly, an Islamic international criminal court may exercise its jurisdiction over Islamic nations or any other nation. We have an alternative for any state, group, entity, or individual to accept the jurisdiction of the ICC or its branch í namely an Islamic international criminal court. This is because the ICC already exercises its jurisdiction over an Islamic nation if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

A clear example in this regard is the case of the president of Sudan who stands accused of violating the Statute of the ICC. Although Sudan is not a party to the Statute of the International Criminal Court, due to the provisions of the Statute, certain individuals could be brought before the jurisdiction of an Islamic international criminal court if such a court were

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to be established.16 This becomes especially significant under Islamic criminal justice and its international criminal law whenever the Court and the Security Council discriminate between criminals and fail to apply the law equally. The establishment of an Islamic international criminal court demonstrates not only to the Islamic nations that their crimes do not go unnoticed under the Islamic philosophy of criminal law and criminal jurisdiction but also that other states may to a lesser extent escape criminal responsibility under the provisions of the International Criminal Court.

7. Admissibility The ICC is empowered to exercise jurisdiction over genocide, crimes against humanity, and war crimes. Islamic criminal jurisdiction is empowered to exercise jurisdiction over these categories of crimes as well. But this does not necessarily mean that the ICC or an Islamic criminal jurisdiction can immediately initiate a case in their jurisdictions if such crimes have been committed. The Court has to wait and see whether the state party in the territory where the crimes have been committed is willing to start its own criminal proceedings. It follows that the jurisdiction of the Court is not altogether universal but subject to certain conditions. Similarly, the exercise of Islamic criminal jurisdiction over criminals is not automatic either, based on the fact that the accused persons may be extradited due to the provisions of a treaty or for other reasons, such as diplomatic negotiations, religious dependency, or other international agreements. Even where the ICC has jurisdiction over a case, it will not necessarily act. The principle of “complementarity” underlines that certain cases may be inadmissible within the jurisdiction of the Court, even though the Court has jurisdiction according to its Statute. Similarly, where an Islamic criminal court has jurisdiction over a case, it cannot act immediately. Historically and under the sources of Islamic international criminal law, the principle of the equality of religion and jurisdiction emphasises that a case may be inadmissible if the accused is 16

On 27 April 2007, the judges in Pre-Trial Chamber I decided the following: “Regarding the territorial and personal parameters, the Chamber notes that Sudan is not a State Party to the Statute. However, article 12 (2) does not apply where a situation is referred to the Court by the Security Council acting under Chapter VII of the Charter, pursuant to article 15(b) of the Statute. Thus, the Court may, where a situation is referred to it by the Security Council, exercise jurisdiction over crimes committed in the territory of States which are not Party to the Statute and by nationals of States not Party to the Statute.” The president of Sudan has not yet been brought before the jurisdiction of the Court.

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willing to be prosecuted under her/his own jurisdiction for religious reasons. The accused may request the Islamic criminal jurisdiction to exercise the rules and regulations normally exercised under the accused’s own religion. “The chief reason for applying this principle is to implement, as fairly as possible, the spirit of justice and not ignore the rights and customs of other jurisdictions, in order to increase respect and avoid contradiction.”17 This means that the fundamental rules governing Islamic criminal jurisdiction regarding admissibility and the rules of the ICC regarding admissibility are not far from one another’s intentions regarding the prosecution of accused persons, and therefore the ICC would not contradict the provisions of an Islamic international criminal court in this regard. In both criminal justice systems, a case is inadmissible if it has already been prosecuted by a state, based on the principle of application of equal justice and the principle of proportionality. This applies as long as the prosecution is authentic and has not missed its goals. The case is also inadmissible under the jurisdiction of both systems if it is not sufficiently serious to be prosecuted. All this indicates that the jurisdictions of both systems have similar aims, even though their sources are different. In other words, the jurisdiction of the ICC should not be seen as opposing Islamic criminal justice but as a necessary corollary for the power of its belief in non-impunity.18 17

Farhad Malekian, ‘The Homogeneity of International Criminal Court with Islamic Jurisprudence,’ 9 (4) International Criminal Law Review (2009), pp. 595621, at 605. 18 For instance, the following provisions within Article 17 of the Statute are, in general, in conformity with the jurisdiction of an Islamic nature. Accordingly, “2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognised by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 5. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”

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8. Hybrid Jurisdiction A serious question in the drafting of international criminal tribunals or courts has been the question of the legality of their structures. This has opened controversial discussions between the negotiators and the reason is very complicated. The negotiators participating in the drafting of statutes did not present one system of law but several systems simultaneously. In practice, this meant applying criminal legislation to different legislations. Naturally, exercising such a jurisdiction was not only difficult but also very impractical. It could even contradict with legislations of many states worldwide, based on their different understandings of crime and different principles of criminal jurisdiction, including criminal procedure and criminal proceedings. In contrast to what is wrongly understood from Islamic theory, this had to be solved: Just as common law and civil law systems borrowed aspects of codification and precedent from each other, so too have the inquisitorial and adversarial systems exchanged procedures. For example, the common law systems adopted a public prosecutor to file criminal charges without relying on a grand jury. Rules of discovery compel some sharing of evidence between the opposing sides, resulting in a “search for the truth” more similar to an inquisitorial than adversarial process. Also, the role of the common law judge has increased in areas like plea negotiation and what evidence the jury will be allowed to hear. The results of this crosspollination are systems where each contains elements of the other … The resulting mixture is not, however, as complete as that found in Islamic law.19

Furthermore, the gravity of punishment varied from state to state, depending on the stage and level of democratization of the ruling powers. All this served to create a negative impression of the new International Criminal Court and prevented states from trusting its jurisdiction. That is why the negotiators agreed to solve these problems by agreeing on a compromise that would more or less satisfy all legal systems, including the Islamic criminal jurisdiction. Ultimately, the suggestion was to gather the most significant principles of most legal systems into a practical understanding in order to help in the exercise of international criminal jurisdiction. As such, the framework of the ICC was almost built on a mixed criminal jurisdiction, adquisitorial on the basis of the criminal legal 19

Systems of Criminal Procedure, available at http://www.abyssinialaw.com/studyon-line/item/440-systems-of-criminal-procedure (visited on 13 May 2017).

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systems of the participating states in the ambit of the Court. Hybrid jurisdiction is unique in that it gives sufficient respect to the criminal principles of different inquisitorial or adversarial systems. It uses the most valuable intentions and purposes of criminal justice without getting caught up in theoretical issues. At the same time, it offers a criminal system that is against neither the generally accepted Islamic principles of criminal justice nor the imposition of an Islamic criminal legal system. This is because Islamic procedural law is a mixed system combining adversarial and inquisitorial aspects. Because the Shariah is a religious law based on divine command and revelation, it did not develop through judicial precedent or legislative codification. Furthermore, it does not require administration of justice to be a combined office (for example, the inquisitorial judge) or divide into many (for example, the adversarial attorney, judge, and jury). Identifying Islamic procedural law is not so easy. Though the sacred law prescribes penalties for criminal acts, it does not specify the means used to apprehend the offender and bring him to justice. The matter is left to the discretion of the state…Because of this discretion, Islamic law has features of both procedural types.20

Examples of these principles in Islamic criminal jurisdiction are essentially the principles of de lege lata, nullum crimen sine lege, nulla poena sine lege as well as ne bis in idem. Islamic law generally encourages a hybrid jurisdiction if it is implemented on an equal footing and based on the provisions of a ratified regional or international treaty, as expressed by the consent of Islamic nations.21 In this context, the term “hybrid jurisdiction” refers to a jurisdiction whose regulations, after careful examination and negotiation between of the rules of two or more states, are incorporated into a unique sui generis treaty that enjoys the status of pacta sunt servanda.22

20

Id. Sudan rejected an Arab proposal to establish a hybrid court for Darfur crimes; see www. sudantribune.com/ spip.php?article50742 (26k) . 22 The Quran, reads: “And fulfil the covenant of God when you have made a covenant, break not your oaths after you have confirmed them”. Q, 16:91. However as one author puts ‘At the level of international criminal procedure, the traditional common-civil law divide has been overcome. their application before the International Criminal Tribunals. Thus, it is not important whether a rule is either adversarial or “ inquisitorial” but whether it assists ‘the Tribunals in accomplishing their tasks. . .’ and whether it complies with fundamental fair trial standards.’ K. Ambos, ‘International criminal procedure: ‘Adversarial’, ‘Inquisitorial’ or Mixed?’, 3 International Criminal Law Review (2003), pp.1–37, at 34-5. 21

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While the legal nature of the ICC may not be regarded as hybrid, it is nevertheless a combination of domestic and international criminal rules and comprises judges and prosecutors with long-term experience in national criminal jurisdiction. That is why the Nuremberg, ICTY, ICTR, and ICC are called “hybrid criminal bodies”23 characterised by a mixed/adquisitorial internationalisation of law.24 Islamic law does not suggest that all judges or prosecutors should be Muslims to implement international criminal jurisdiction.25 As long as the Court maintains its impartiality concerning the implementation of its Statute, the principles of Islamic law are not breached.26 In addition, the tradition of Islamic law suggests that justice should deliver justice in order to provide the substance of truth and the maintenance of rights. Real justice is where its principles are applied equally to all parties accused of

23

www.pict-pcti.org/courts/hybrid.html (24k). However, we do not deny that the term ‘hybrid’ has been most often employed in the courts of Sierra Leone, East Timor, Kosovo, and Cambodia. The judges and prosecutors of these courts were selected from the relevant state in question and suggestions made by the United Nations. Despite this, according to some writers, an adquisitorial system creates more authentic human justice. ‘The role of the judge in some adversarial system such as South Africa is becoming more dynamic towards the inquisitorial methods in certain circumstances. While other countries such as Malaysia and Nigeria still crawl on the grounds of inquiry into the cause of a death. The methods in the International Criminal Court (adquisitorial) which, involves the merging of the two systems opens the doors of justice and it creates a more just and humane criminal justice system.’ Kafayat Motilewa Quadri, Hunud Abia Kadaouf, Mohammad Naqib Ishan Jan, Mohd. Iqbal AbdulWahab and Haniff Ahama, ‘Adquisitorial: The Mixing of Two Legal Systems’ 3 (1) International Journal of Humanities and Management Sciences (IJHMS) Volume (2015), pp.3136, at 35. Available at http://www.isaet.org/images/extraimages/P115322.pdf (visited 8April 2017). 25 In the light of the principle of freedom of religion, there has been a strong objection to the assumption that non-Muslims can be prosecuted and punished in accordance with Muslim law. See extending jurisdiction on ‘close proximity’: “It is an implied way of imposing SharƯah law on the non-Muslim communities in Malaysia.” In: http://www.Jihadwatch.org/dhimmiwatch/archives/020562.php (visited on 2009-02-11); see also “Modern, moderate Malaysia: Proposal to expand prosecutions to cover ‘close proximity’ between Muslims, non-Muslims of opposite gender”, in: http://www.jihadwatch.org/dhimmiwatch/archives/020555.php (visited on 2009-02-11). 26 Malekian, The Homogeneity of International Criminal Court with Islamic Jurisprudence. 24

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committing international crimes.27 This is important for all types of jurisdictions – be they ad hoc, hybrid, or international.

27 A clear example is the show tribunal concerning the prosecution of Saddam Hussein. See Farhad Malekian, ‘Emasculating the Philosophy of International Criminal Justice in the Iraqi Special Tribunal’, Cornell International Law Journal, 58/5 (2005) 675-725. Examine also Jeremy Peterson, ‘Unpacking Show Trials: Situating the Trial of Saddam Hussein’, Harvard International Law Journal, 48 (2007) 257; Jordan Engelhardt, ‘The Pre-eminent State: National Dominance in the Effort to Try Saddam Hussein’, Cornell Journal of International Law, (2009) 776.

CHAPTER TEN QUALIFICATIONS IN AN ISLAMIC INTERNATIONAL CRIMINAL COURT

1. The Principle of Criminal Charges “Show forgiveness, speak for justice and avoid the ignorant.”1 Criminal law constitutes one of the oldest legal subjects of human civilization for the purposes of achieving justice, preventing impunity, and avoiding unawareness, with direct effect on the development of international relations. Criminal law generally consists of two parts: the substantive part that refers to the actions or omissions constituting crimes or offences and the procedural part that refers to the mechanism for investigating and prosecuting violations of the substantive criminal law. The system of international criminal law consists of two similar parts, except that its focus is broader by including the application of different domestic criminal laws, which are combined towards a common end. In international procedural law, a court may hear and decide what has occurred through criminal conduct.2 Compared with the system of substantive international criminal law, the burden of proof in international criminal procedure is on the prosecution. The defendant is presumed innocent until the prosecution proves otherwise. Thus, one of the principles of justice in international criminal law is the presumption of innocence. This may work differently in different countries, however, depending on their legislative perspectives. Article 4 of the European Convention on Human Rights, which is accepted by a large number of Council of Europe members, clearly defends the rights of the accused:

1

Q, 7:199. The difference between national criminal law and civil law is based on the fact that the former protects social legal order and the latter concerns a dispute between two or more parties. In other words, civil law may deal with actions that are not of importance in the public’s apprehension. 2

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1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and the public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 5. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

In the system of international criminal justice, as we will examine later, the defendant has the right to counsel, and the death penalty is not imposed. The right to a defense counsel has been consolidated since the creation of the Nuremberg Tribunal and developed in the statutes of other international criminal courts. A defendant who cannot afford her/his own lawyer must, as a rule, be given a lawyer at public expense. This is called a court-appointed lawyer. Certain rights exist, e.g., to be defended in person. Basically, in order to find the defendant guilty of the crime as charged, her/his criminality must be proven without a reasonable doubt in a criminal trial. An international criminal court may find the accused not guilty if there is insufficient evidence for the proof of criminality. International criminal law has numerous functions, including prosecution, jurisdiction, punishment, prohibition, prevention, deterrence, rehabilitation, and also acquitting individuals from prejudices as well as accusation. With the implementation of international criminal law, the aim is to achieve justice through international criminal tribunals or courts. That is why the establishment of the ICC was seen as a necessary condition for the new international legal order.

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2. The Principle of Appropriate Locality Islamic international criminal law draws on several fundamental principles for the cultivation of justice and the prevention of evil. These include the principle of legality, nullum crimen sine lege, nulla poena sine lege, ne bis in idem, and ex post facto law. In terms of the application of law, Islamic criminal justice also exercises a considerable number of cautions, including the quality of the judges/prosecutors and the location/place where the court is seated and the trial is conducted. Accordingly, the locality in which the court proceedings are conducted must be free of any illegal aspects and should not have been occupied by force. Respect is paid to the spiritual nature of the courthouse and its imperative function for the finding of truth. Essentially, the law seeks to uncover the truth, and the finding of the truth cannot be initiated in a house that is itself built on illegal, unlawful, immoral, and evil behaviour. This, however, does not imply that the court must have its seat in the same locality permanently. Court may be held in any place, as long as certain conditions are respected. For instance, court sessions may not only take place in public locations but also in locations such as a house of charity, a mosque, or a church. In other words, an appropriate seat for the court is significant for judgment, even though its role is more of a psychological than legal nature. Apparently, the theoretical foundations for the concept of the house of the court in the Islamic justice system overlap with the concept of the house of the court in the system of international criminal law. Due to the provisions of the Statute of the ICC, the seat of the Court is at The Hague in the Netherlands.3 The Court may even sit elsewhere, whenever it considers this desirable.4 This implies that the Court has an international legal personality, which creates a range of rights and duties for the Court in order to exercise its jurisdiction over perpetrators of international crime.5 Furthermore, the proceedings of the Court do not contradict with Islamic criminal justice, based on the fact that certain Islamic states/nations have signed and ratified the Statute of the Court. This implies that the legal and moral quality of the Court is acceptable to them. Legal quality here means that the legal structure of the Court is equivalent to the Islamic requirements for criminal justice, including rules, provisions, norms, and principles. It protects fundamental guarantees for 3

Article 5 (1). Article 5 (4). 5 Article 4. 4

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individuals by establishing the definitions of crime and their application under the authority of the Court. The legal quality of the Court therefore makes it clear that the law can only be applied to those who have committed the crimes but not to those who committed the same crimes before the creation of the Court. The Court has no legal authority over crimes committed before it was established or before it came into force. The judges of the Court do not have the power to criminalize acts not provided in the written statute. Therefore, under the trial procedures, the coordination of the Court’s jurisdiction with the principles of the Statute is regarded as one of the main duties of its judges. The moral quality of the Court refers to the functions of the Court that are not necessarily enforceable under the legal provisions of the Court, but they should not be ignored under the procedures of the Court. For instance, the Court should not be located on premises that are notoriously negative or occupied by force. This principle is not stated in the Statute of the Court but is derived from the general principle of justice and from the theory of fairness. While the Court is not bound by this principle, any disrespect would not contribute to the Court’s good reputation. This moral aspect is supported by the philosophy of Islamic law in order not to detract from the quality and object of criminal jurisdiction. One of the problems of international criminal law is that it does not directly address the locality of an international criminal court. Although the system of international criminal law does not support the establishment of international court procedures in a locality occupied by force, this should have been clearly stated in the basic principles of international criminal jurisdiction. Under Islamic international criminal law or under a hypothetical Islamic international criminal court, the principle of appropriate locality is an established principle that has to be respected at all times.

3. The Principle of Qualification of Judges Under Islamic law, justice has to be carried out by persons who are righteous and just. The judge has a duty to observe certain rules, norms, and provisions and not to violate rules regarding the testimony of witnesses or evidence. According to the main source of the law, “We have appointed you as a vicegerent in the earth; therefore judge between mankind with justice, and do not follow desires lest they should lead you

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astray from the way of God.”6 Respect for these rules is particularly vital in cases of serious offences such as crimes against humanity, war crimes, and genocide. In addition to the qualifications required to be recognised as a judge, s/he must also have sufficient knowledge of criminal justice. Therefore, there are certain conditions that must be fulfilled; otherwise a person cannot be accepted to sit in the chair of justice. Some of the requirements below, which have significant value for the implementation of fair and equal justice in Islamic criminal jurisprudence, may also be found in the system of international criminal justice.7 These are inter alia: i) A judge’s moral qualification. Both legal systems emphasize the moral character of a judge. Accordingly, a judge must have a high moral standard, an ethical reputation, be well recognised, have an honourable record, and a respectable personality. He should not have been involved in bribes or gifts. These qualifications do not necessarily mean that a slave or a poor person cannot be a judge. None of these social backgrounds decrease the qualification of a person to be a judge. ii) A judge should have recognised wisdom. iii) A judge should have recognised intelligence. iv) A judge should have awareness of Islamic religion. This does not necessarily mean that a judge of the ICC must be Muslim, but s/he should respect all religious cultures worldwide. The respect for different cultures also constitutes one of the basic principles of the Declaration of Human Rights. v) A judge must be impartial regarding the case. This means that s/he must not have any vested interest in the case and s/he must maintain her/his objectivity throughout the case. ii) A judge must possess all the professional qualifications required to be a judge in a court. viii) Islamic criminal justice insists on the relevant knowledge of a judge. S/he must have sufficient ability to understand criminal law, proceedings, and judgments. ix) According to the Statute of the ICC, a judge must be a legal professional competent in international law, human rights law, humanitarian law. Whilst Islamic international criminal law does not necessarily list the above qualifications, it is understood that 6

The Q, 58:26 See generally Lawrence Rosen, The Justice of Islam: Comparative Perspectives on Islamic Law and Society (Oxford: Oxford University Press, 2000).

7

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these qualifications are an integral part of Islamic jurisprudence and should therefore be considered an integral part of an Islamic international criminal court.8 x) S/he should not have been involved in lending money. xi) The judge should protect the public and international welfare. xii) It is beneficial if the judge is a specialist in the protection of the rights of abandoned children, orphans, and children in general.9 According to the contemporary standard, interpretation of this requirement means a judge should protect the rights of child victims of crime during war or peacetime. A good knowledge of the provisions of the conventions on the rights of the child may not be necessary but would obviously be of great advantage.

4. The Principle of an Appeal Court Under traditional Islamic jurisprudence, there is no appeal court in the contemporary sense. The political reason for this is explained in the following: Despite the absence of appeal from the central Islamic juristic tradition which the Ottomans absorbed, there was an appellate process in the Empire, closely associated with the institutions through which the Sultan sought to centralize political authority. While this appellate process has been somewhat obscured by the use of trial de novo on appeal and the intermingling of litigation and com- plaint jurisdiction, the fact remains that appeal existed in Islamic cultures where Islamic law and hierarchical government intersected in a relatively stable and enduring manner. The appeals process is attenuated and obscured, however, primarily because it operated in the sphere in which the government's claims to hierarchical authority were weakest.10 8

‘If the vitally important body of contemporary international humanitarian law is to find further acceptance and compliance, the contributions to its development made by multiple cultural traditions and the great debt which it owes to the Islamic legal tradition, among others, must be recognised.’ Karima Bennoune, ‘As-Salamu ‘Alykum? Humanitarian Law in Islamic Jurisprudence’, 15 Michigan Journal of International Law (1994), p.642. 9 Muhammad Hafiz Mohd Shukri and Mohd Khairul Hisyam Hassan, Should a child be allowed to give evidence? The position of child evidence under civil and Islamic laws in Malaysia (Universiti Malaysia Sarawak (UNIMAS), 2014), pp.124. 10 Martin Shapiro, ‘Islam and Appeal’, 68 (2) California Law Review (1980), pp.350-381, at 380. Available also at http://scholarship.law.berkeley.edu/cgi/view content.cgi?article=2293&context=californialawreview (visited on 11 February 2017).

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The reason for the absence of appeal was apparently as follows: Explanations of the absence of appeal in Moslem courts based on the legal culture, however, are not entirely satisfactory for a number of reasons. First, Imperial China had a comparably particularized legal code equally adverse to the formation of general legal concepts or doctrines. It also functioned by small step analogies from particularized and fixed legal provisions. Despite these similarities to Islamic legal culture, Imperial China had a highly elaborate system of appeal.11

However, a defendant could appeal to the ruler after the implementation of sentence.12 If it was proven that the defendant’s punishment was unlawful and the findings of the judge were not accurate, the judge could be subjected to the same punishment and be removed from her/his position.13 11

Id. p.362. Id. Two other reasons for absence of appeal are ‘A sketch of the growth of Islamic legal, political, and religious institutions reveals two basic institutional factors that are relevant to the absence of appeal in Islam. The first is the simultaneous existence of both a secular and a religious judicial system. The second is the weakness or absence of hierarchical structures in the political and religious organization of Islam.’ Id. p.363. 13 A decision of Qadi should be correct and be based on clear evidence. Wrong decisions in any criminal matter, like the ICC provisions, opens the right to appeal. Therefore, the provisions of Article 81 of the Statute are without a doubt practical for implementation in an Islamic international criminal court. Article 81 therefore deals with appeal against a decision of acquittal or a conviction or against a sentence. According to Article 81, a decision under Article 74 may be appealed in accordance with the Rules of Procedure and Evidence. These are when the Prosecutor may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, or (iii) Error of law. In addition ‘(b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds: i) Procedural error, ii) Error of fact, iii) Error of law, or (iv) Any other ground that affects the fairness or reliability of the proceedings or decision.’ Beside this “2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence; (b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83; (c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a). 3. (a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal; (b) When a convicted person's time in custody exceeds the sentence of 12

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A defendant’s false appeal was and is also subject to punishment. In general, when the ruling is rendered, it becomes a final decision and consequently cannot be appealed against or re-examined. Given that judicial rulings in the Shariah criminal law are commonly final, the options to have the judgment overturned are very rare. ‘A judgment cannot be appealed.’ 14 This means there are no appellate courts. However ‘any judge may declare a judgment void if he finds it in contradiction with a provision of the Quran or sunnah.’15 In practical terms, this is a permission to appeal against a wrongful decision. Yet, ‘a judge who renders a judgment may also revisit it of his own accord, in the belief that it may violate the Quran or sunnah.’16 We must not, however, forget the following fact: The new trial may be conducted by the judge who rendered the illegal ruling, for as long as there is no reason to prevent him from learning the case. In the event of a judge executing himself, another judge who is competent to hear the case will handle the trial…. there are doubt as to the reality of this application. This may be explained by the fact that criminal procedure in most of the modern Arab world is not in fact derived from Islamic Shariah. In fact, the comprehensive application of Shariah law in Egypt, its neighbours and other countries who witnessed the spread of Islam in the seventh century CE, occurred during a limited period of time. It was confined to the period between arrival of Islam and the late nineteenth century CE, when new codes, derived mainly from European codes, began to be introduced to the Ottoman Empire and its affiliated Arab countries. After this, the application of the Shariah declined dramatically… The principle of the separation of powers, now viewed as a imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below; (c) In case of an acquittal, the accused shall be released immediately, subject to the following: (i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal; (ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence. 4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings.” 14 Adel Omar Sherif, ‘Generalities on Criminal Procedure under Islamic Shariah’ in Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the SharƯah(London. New York: I. B. Tauris, 2003), pp.3-16, at 10. 15 Id. 16 Id.

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Chapter Ten key element in modern states, did not develop under Islam…. (However) such a separation is not inconsistent with Shariah.17

Although not all Islamic criminal regulations can be found under the Statute of the ICC and are not necessary either, it is obvious that the rules of the Appeals Chamber are not against Islamic jurisprudence or an Islamic international criminal court and that its establishment is quite fair and just.18 This is also due to the fact that Islamic nations established courts of appeal long ago but not under the term “appeal.” Still, most Islamic nations have now their own appeal courts.19 Hence, neither Islamic jurisprudence nor the ICC system wants an innocent person to be convicted. This is one of the main reasons for establishing the respect for justice, for victims, and for suspects.

5. The Principle of Qualification of Prosecutors According to Islamic criminal justice (or an Islamic international criminal court), there was no difference between the function of a prosecutor and the function of a judge. Both these legal positions had similar functions 17

Id. 11. Article 83 of the Statute on the proceedings on appeal provides that “1. For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber. 2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may: (a) Reverse or amend the decision or sentence; or (b) Order a new trial before a different Trial Chamber. For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person's behalf, it cannot be amended to his or her detriment. 3. If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime, it may vary the sentence in accordance with Part 7. 4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the majority and the minority, but a judge may deliver a separate or dissenting opinion on a question of law. 5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted.” 19 Abdulmumini Adebayo Oba, ‘The Shariah Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction’, 52 (4) The American Journal of Comparative Law (2004), pp. 859-900. 18

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and were carried out by the same person. The judge was also responsible for all other matters concerning the administration of justice and the gathering of information, including the location of the judgment. It was therefore very difficult for a prosecutor/judge to render impartial judgments. The difficulty of this task and the gathering of the necessary information, however, changed the administration of justice, and the law now distinguishes between two different legal tasks. Accordingly, the prosecutor has to ensure that there are sufficient reasons to launch an investigation and, if so, initiate the investigation. There are, however, several conditions for recognizing a person as qualified to be a prosecutor. These are: i) A prosecutor must have high moral standards or have a fully respectable character. ii) S/he should not have a criminal record. iii) S/he should have recognised wisdom. iv) S/he should have recognised intelligence. v) A prosecutor should maintain her/his objectivity regarding the development of the case. vi) A prosecutor should have awareness of Islamic religion. This does not mean that a prosecutor of the ICC must necessarily be Muslim, but s/he should respect all religious cultures of the world. The respect for different cultures also constitutes one of the basic principles of the Declaration of Human Rights. vii) The prosecutor of an Islamic international criminal court must have full knowledge of criminal cases. viii) S/he should be chosen in accordance with the provisions of the law.

6. The Principle of Equality of Treatment The principle of equality is the core principle of justice. This principle is assumed to be respected in all legal systems, including Islamic criminal law or an Islamic international criminal court. The principle of equality before a criminal jurisdiction is also determined by the principle of equality in the eyes of justice. The notion of equality therefore implies the existence of fair treatment, natural rights, and the protection of integrity before the law. In Islam, criminal equality is described in the following manner:

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Chapter Ten Among free men or women, all are equal; you cannot claim that because a wealthy, or high-born, or influential man is killed, his life is equal to two or three lives among the poor or the lowly. Nor in cases of murder, can you go into the value or abilities of a slave. A woman is mentioned separately because her position as a mother or an economic worker is different. She does not form a third class, but is a category of the other two classes. One life having been lost, do not waste many lives in retaliation; at most, let the law take one life under strictly prescribed conditions, and shut the door to private vengeance of tribal retaliation. But if the aggrieved party consents (and this condition of consent is laid down to prevent worse evils), forgiveness and brotherly love is better, and the door of Mercy is kept open. In western law, no felony can be compounded.20

The principle of equality constitutes one of the most significant principles of justice in international criminal courts. This principle is also enshrined in Article 21(1) of the Statute of the ICTY, which states that “All persons shall be equal before the International Tribunal.” The Appeals Chamber of the ICTY has described the above provision as follows: This provision reflects the corresponding guarantee of equality before the law found in many international instruments, including the 1948 Universal Declaration of Human Rights, the 1944 International Covenant on Civil and Political Rights, the Additional Protocol I to the Geneva Conventions, and the Rome Statute of the International Criminal Court. All these instruments provide for a right to equality before the law, which is central to the principle of the due process of law. The provisions reflect a firmly established principle of international law of equality before the law, which encompasses the requirement that there should be no discrimination in the enforcement or application of the law. Thus Article 21 and the principle it embodies prohibits discrimination in the application of the law based on impermissible motives such as, inter alia, race, colour, religion, opinion, national or ethnic origin. The Prosecutor, in exercising her discretion under the Statute in the investigation and indictment of accused before the Tribunal, is subject to the principle of equality before the law and to this requirement of non-discrimination.21

In this context, Article 7 of the European Convention on Human Rights is also important. The article reads as follows: 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under 20

Anwarullah, The Criminal Law of Islam (Islamabad: SharƯah Academy, 2004), p.86. 21 Zejnil Delalic (IT-96-21-A), Judgement, 20 February 200, para. 605.

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national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognised by civilized nations.

Article 5 of the European Convention on Human Rights addresses important matters concerning the suspect or detainee and her/his civil and criminal rights. In fact, the article’s intention is to protect several principles of criminal law, criminal procedure, and the fundamental rights of a person who has, for one reason or another, been arrested by the legal authorities. Part one of Article 5 reads that: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Part two of Article 5 provides that: 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge

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Chapter Ten or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

This significant concept of equality of treatment in all aspects of social life has entered into most relevant verses of Islamic law. One of the wellknown verses reads ‘O mankind, indeed We have created you from male and female, and have made you into nations and tribes, that you may know one another. Indeed the most honoured of you in the sight of God is the most righteous. Indeed, God is Knowing and Acquainted.’22 Justice has to be achieved, and this justice should be the requirement of natural justice or a duty to act fairly. Islamic law says ‘law is greater than lawyers, and it works in the end for justice and life.’23 This also includes justice at the time of application of criminal provisions. The main source of Islamic law advocates establishing justice among the people as the main duty of Islamic theory.24 The 1981 Universal Islamic Declaration of Human Rights adopted by the Islamic Council of Europe clarifies the rights of the accused and the concept of the right to fair trial. It reads that: a) No person shall be adjudged guilty of an offence and made liable to punishment except after proof of his guilt before an independent judicial tribunal. b) No person shall be adjudged guilty except after a fair trial and after reasonable opportunity for defence has been provided to him. c) Punishment shall be awarded in accordance with the Law, in proportion to the seriousness of the offence and with due consideration of the circumstances under which it was committed. d) No act shall be considered a crime unless it is stipulated as such in the clear wording of the Law. e) Every individual is responsible for his actions. Responsibility for a crime cannot be vicariously extended to other members of his family or 22

Q, 49:13. Duncan B. Macdonald, Development of Muslim Theology, Jurisprudence and Constitutional Theory (Lahore: The premier Book House, 1972), P.114. 24 Q, 57:25. 23

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group, who are not otherwise directly or indirectly involved in the commission of the crime in question.

The concept of justice in Islamic theory has been the object of all revelation and scriptures presented to humanity.25

25

See appendix.

CHAPTER ELEVEN ARGUMENTS ON EVIDENCE IN AN ISLAMIC INTERNATIONAL CRIMINAL COURT

1. Presumed Innocence One of the chief principles of Islamic justice is that the burden of proof is one of the duties of the prosecutor. Islamic justice underscores the principle that the accused is presumed innocent until proven otherwise. According to Islamic law, the conviction of the accused must also be without any reasonable doubt. One cannot be convicted for acts that are not proven during criminal proceedings. The Statute of the ICC recognizes similar principles. Under the provisions of the Statute, the presumption of innocence constitutes a principal element. It also provides that it is the duty of the prosecutor to prove the culpability of the accused under the criminal justice system.1 In addition, pure Islamic criminal justice considers evidence obtained by spying on the accused. This means that “evidence discovered in the course of an unauthorized search will generally not support the issuance of a warrant and is inadmissible at trial.”2 This applies to the fact that evidence must be obtained by legal means and not illegally by violating the legal privacy of the accused. Therefore, evidence obtained by bugging the accused person’s room or spying through a window cannot be recognised as legal evidence.3 The main source of the law reads as follows: “Avoid much suspicion, for verily suspicion in some cases is a sin, and do not spy.”4 Moreover, as is stated concerning the function of evidence:

1

Article 66 of the Statute. Matthew Lippman, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure (1988), p. 66. 3 Id. 4 The Q, 24:12. 2

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The Islamic law of evidence is rational and very formalistic. The general rule is that the plaintiff must prove his claim and that he can do so by the testimony of witnesses or by the admission of the defendant. Oaths, or the refusal the swear or oath, can have probative force. Finally, the Hanafits, Shiites consider the qãdis own knowledge, regardless of how he acquitted it, as sufficient proof for a sentence.’5

In other words, evidence is defined under Islamic theory as evidence implying the commission of a crime by a certain person. The quality of evidence can be of different types. It can be i) a testimony, ii) a confession by the accused, iii) a solemn oath that may have been taken by the plaintiff, iv) evidence given by the plaintiff indicating proof of the case. However, the nature of evidence, which may be required for the confession of an accused, differs from case to case, depending on the nature and the degree of the offence. In addition to this, some offences require only two witnesses while others require several witnesses (e.g., in a case of adultery). Some offences are juridically proven by giving an oath, which indicates the establishment of a punishable crime. Yet others are judged on the basis of given testimony (e.g., an accusation in which the plaintiff has no witnesses, such as when a husband accuses his wife of adultery). Witnesses in Islamic law or an Islamic international criminal court are encouraged, as in the proceedings of international criminal courts, to participate as witnesses for reasons of justice. Perjury in order to mislead the court, however, is a crime í as it is in international criminal courts. There are also certain requirements for witnesses as followed in the procedures of the ICC. One of the essential conditions is to be a wise, adult Muslim who can appreciate the impact of her/his objectivity when giving testimony. For this reason, according to narrow Islamic interpretation, a non-Muslim may not be permitted to testify against a Muslim offender.6 However, this point is very controversial. My argument is that this narrow reasoning of the rules of Islamic law downgrades the first principle of Islamic theory, i.e., humanity. If the intention of Islamic law is to emphasise human dignity, all human beings are equal and the fact that a person believes in one theory or another, or even in no theory at all, does not decrease to any degree the value of human dignity of the witness or her/his words.

5

Rodulph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), p.12. 6 See also twelve 6. Testimony of Witnesses.

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The reality is that the Quran does not mandate Muslims to vote against a non-Muslim or Muslims to vote for a Muslim over a non-Muslim. To the contrary, the Quran clearly commands “Verily, Allah commands you to make over the trusts to those entitled to them, and that, when you judge between men, you judge with justice. O ye who believe! Obey Allah, and obey His Messenger and those who are in authority among you.” However, according to another opinion, Islamic criminal law disqualifies the following categories from being witnesses: i) children of parties to the case, ii) close relatives, iii) close friends iv) a habitual liar, v) a hypocrite and usurper vi) an offender of major sins, vii) a notorious person, viii) a person who insults religion, ix) a person who insults people, x) a habitual thief, a person known for practicing discrimination, xi) a nonMuslim, xii) an enemy, xiii) an absent-minded or inattentive person, xiv) a lunatic, an insane person, and an idiot, xv) a person convicted of Qazf, xvi) accused on hudud crimes.7 According to Islamic rules, a person who belongs to another religion may still be permitted as a witness, as accepted by the Islamic original source or Sunnah. Furthermore, testimony by a non-Muslim against another non-Muslim is permitted if such testimony conforms to the quality of the traditions of the witness and does not go against the established principle of justice. A child’s testimony may be accepted if relatives of the child have not manipulated such testimony. Any argument against the substance of the moral values in the witness’ testimony should obviously not violate the basic principles of human rights laws. This includes Western and non-Western rules of law. In reality, none of the provisions of Article 68 of the Statute of the ICC governing the protection of victims and witnesses and their participation in the proceedings are against Islamic rules if, and only if, they are interpreted without any political pressure.8 7

Islamic Law of Evidence, available at http://thelawstudy.blogspot.de/2014/07/islamic-law-of-evidence.html, visited on 3 February 2017. 8 The article provides that: “1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect

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All these evidentiary issues underline the fact that the criminal conduct of the accused must be proven by evidence, and therefore no one is guilty of a crime as long as authentic evidence has not been presented to and examined by an authorized criminal court. The sources of Islamic law also support the above facts and principles. Accordingly, any false testimonies, which serve to accuse a man or woman of the commission of a crime, are not tolerated, and such witnesses are subject to punishment according to the provisions of the law.9 Evidence has an important function in the history of Islamic jurisprudence í it should be authentic and not false. The same philosophy is also encouraged under the principles of the ICC.

2. Evidence As a rule, evidence consists of documents, records, statements of witnesses, victims, or any other objects that can be legally obtained as part of the law on criminal procedure. The objective is to prove the guilt or lack of guilt of the accused. The prosecutor and/or the counsel may present evidence. The legal validity of evidence presented in a criminal court is victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. 3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. 4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6. 5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.” 9 The Q, 24:4.

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based on its authenticity. In other words, evidence defines the legal personality of the case; without evidence or without sufficient evidence, a case cannot stand. Evidence is therefore the core element of justice and this is the reason why, when new evidence emerges, a prior judgment may be nullified and the convicted person set free, or a person who had previously been found not guilty may be found guilty. Evidence implies the equal or fair nature of justice. The nature of evidence depends on its quality and quantity. Anything that serves to prove guilt or the lack of guilt is evidence. This can be an eyewitness, papers, tools, various documents, records, and facts regarding the case.10 One of the significant characteristics of evidence is that it be legally obtained. Any evidence based on illegal acts or falsification is legally invalid and loses its legal personality. Islamic courts and Western courts must examine the level and degree of evidence and the way in which it was obtained. The foundation of all international criminal courts (e.g., the Charter of the Nuremberg Tribunal, the Statute of the ICTY, and the ICTR) is therefore based on evidence. This is also true in case of the ICC.11 Due to the provisions of its jurisdiction, the Court may therefore decide based on the examination of the nature of all evidence. For this purpose, the Court may look at the probative value of the evidence, which may be prejudicial to the legal rights of the accused and a fair trial.12 Before each witness testifies, the Court is therefore responsible for confirming the reliability of the evidence. The reliability should, however, be confirmed in conformity with the Rules of Procedure and Evidence.13 The Court may ask for the submission of all evidence that may be necessary in order to find the truth.14 It may also receive the testimony of a witness by different methods, e.g., viva voce (oral) as well as recorded testimony of a witness by means of video or audio technology.15 Another possibility is that a state may collect evidence and submit it to the International Criminal Court.16 The Court is then entitled to decide on 10 Direct or indirect evidence can also be divided into several other categories. These are, for example, documentary evidence, proof beyond any reasonable doubt, best evidence, oral evidence, written evidence, direct eyewitness accounts, and individual evidence by indirect hearing. 11 Article 69 of the Statute of the ICC. 12 Article 69 (4). 13 Article 69 (1). 14 Article 69 (5). 15 Article 69 (2). 16 Article 69 (8).

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the juridical validity of the evidence and its relevance for the examination of the case. As long as the Court is not satisfied, it may neither ignore nor take any particular decision concerning the evidence. This would be the same under a hypothetical Islamic international criminal court. Evidence may come from anyone who has some connection with the case or from a third person who has found evidence. All these evidentiary considerations imply the fact that evidence in a proposed Islamic international criminal court is defined by the rules of the International Criminal Court and that there are no essential contradictions between the procedures of an Islamic international criminal court and the ICC. We are applying more or less the same legal system in accordance with different legal theories. The essential issue in both legal systems is respect for international human rights law. Both systems reject insufficient evidence or evidence obtained by force. No violation of the system of international human rights law must occur. Although I accept that there are some minor differences between the two legal areas, their ultimate ambition is the same. Any violation of the system of human rights decreases the value of evidence and, consequently, diminishes its legal effect. Moreover, the admission of violative evidence may damage the integrity of the proceedings.17 It is imperative that judges take judicial note of facts of common knowledge,18 and they may also base their decisions on evidence submitted to the Court during the trial.19 Nevertheless, the Court does not require proof of facts of common knowledge. The quality of justice rendered is not recognised as long as the decisions of the judges are not in conformity with the principles of justice. The quality of evidence must be beyond any doubt. Since evidence is of fundamental importance for the presentation of justice, the following principles must be guaranteed. This also holds true in our suggested Islamic international criminal court. Evidence can be of a direct or indirect nature and can exhibit relevance, proper evidence, correct information, lawfulness, truthfulness, impartiality, and wrongfulness. Evidentiary principles also include the inviolability of international law, the inviolability of international human rights, the inviolability of the Statute of the ICC, and conformity with the Rules of Procedures and Evidence. In addition, evidentiary problems may include conflicts with the principles of justice, conflicts with the rights of the accused, conflicts with the rights of victims, and conflicts with the rights of witnesses. Above and beyond all these considerations, one may also 17

Article 69 (7). Article 69 (6). 19 Article 69 (2). 18

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take into account effects during the trial, effects on the final judgment, effects on the degree of punishment, effects after the trial, and authenticity in the future.

3. Nature of Evidence Evidence has an effective function in the procedure of Islamic jurisprudence. But what does and does not constitute evidence has been subject to some debate. This is because the Quran has, in one instance, referred to evidence as constituting the testimony of witnesses. In criminal cases, the basis of proof may rely solely on witness testimony. However, the above interpretation may not be correct and is indeed subject to criticism. Evidently, the main source does not define the borders of evidence. Restricting evidence only to witness testimony diminishes the value of justice and justice will not be achieved. More significantly, the nature of evidence cannot exclusively rest on the testimony of witnesses. The reason is that proof of criminality would be very difficult if there is no witness but instead only circumstantial evidence proving or disproving guilt. The nature and substance of evidence therefore varies from case to case, depending on the circumstances of each case. The nature of evidence may be the following: i) the testimony of a woman, b) the testimony of a man, c) that which proves the guilt or innocence of the accused. The credibility and weight of the evidence must be assessed in order to determine that guilt has been established beyond any reasonable doubt. Therefore, where the guilty of the accused is not proved beyond doubt, prescribed penalties will not be imposed. The evidence must be of a high probative value, definitely supporting the allegations against the accused, in the absence of such evidence; the judge has the power to impose statutory penalties prescribed by law for a lesser offence if there is evidence to support such a conclusion. Otherwise, the accused will be set free and no stigma shall attach to him nor he will be subjected to any other disability.20

There are, however, some rules concerning the nature of evidence and the testimony of witnesses. In other words, some provisions on the testimony of men and the testimony of women have been worked out. The testimony of both genders have been used, however, sometimes to different degrees and at different levels, depending on the circumstances of a case. 20 Mohad Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), p.89.

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Therefore, the nature of evidence and its validity has sometimes suffered due to the gender issue.

4. Confession through Consent Consent appears to be one of the most significant principles and subjects of criminal justice in Islamic jurisprudence21 and the ICC as a whole. Both legal systems emphasise the value of evidence, which is expressed by free consent. In other words, a confession extracted by use of threat, force, torture, and any other unjustified means cannot have any legally binding effect in the criminal proceedings and encourages the irrational nature of justice. In the light of new evidence, a confession may lose its evidentiary value if it is proven that the confession of the accused was achieved by coercion and not by free will. Also, the confession of a person who has lost his memory or is mentally ill cannot be presented as evidence in the court proceedings. Any doubt as to the value of the confession may be a reason for its invalidity. Under Islamic law, a confession constitutes a cornerstone in the proceedings and finding the truth. Thus, one of the most necessary and reliable forms of evidence under the provisions of Islamic criminal jurisprudence has always been the confession of the accused. This is particularly valuable in cases of serious crime. The theoretical “reasoning behind this principle is to render and promote justice by means of confession in order to avoid mistakes or consider unfair and inflamed evidence. However, an accused may not be condemned based solely on his confession of guilt; there must exist appropriate and legitimate evidence of confession.”22 In addition, a confession does not affect the criminal responsibility of any other person who aids, abets, assists in, or attempts the commission of a crime. The confession only implies the acceptance of personal responsibility on the part of the accused. Any other person who has, in one way or another, participated in the commission of the crime must confess of her/his own free will. It is also significant to mention that new evidence can be a reason to revise a judgment under Islamic law. The Statute of the ICC has also 21 Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the SharƯah(New York: I. B. Tauris, 2003). 22 Farhad Malekian, ‘The Homogeneity of International Criminal Court with Islamic Jurisprudence,’ 9 (4) International Criminal Law Review (2009), pp. 595621, at 617.

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anticipated the situation where incorrect or insufficient evidence causes the Court to issue a wrongful conviction. According to the Statute of the ICC, a revision of judgment or sentence may be possible by the Appeals Chamber if it finds that: (a) New evidence has been discovered that: (i) Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and (ii) Is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict; (b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified; (c) One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under article 44.

Apparently, both legal systems aim at the protection of the accused and the validity of authentic evidence. A confession obtained by resorting to force and unlawful measures is null and void. One cannot disagree with the fact that the emphasis on the value of evidence is different in each system, but this does not prevent the exercise of appropriate judgment under the provisions of the ICC or the historical evaluation of Islamic jurisprudence. In other words, the provisions of the ICC regarding this matter do not conflict with Islamic criminal justice but are instead identical.

5. Charges before Trial In the international legal system or the system of an international criminal court, there are always certain procedures for confirming the charges before trial. The intention is to prepare proper charges against the accused in order to continue the procedure. The accused may be a person who has been arrested, surrendered, or even appeared voluntarily before the jurisdiction of the ICC or any other international criminal court authorised by the Security Council of the United Nations. As we will see, these procedures of charges before trial cannot by any means be considered to be against the system of an Islamic international criminal court. In all situations, we should remember that a proper Islamic court, like the system of the ICC, aims to create an appropriate international procedure as well as possible. In the case of the ICC, the PreTrial Chamber is responsible for holding a hearing to confirm the charges

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against the accused person for the purpose of continuation of trial by the prosecutor. According to the system of the ICC, for a hearing to be correct, it should take place in the presence of the prosecutor, the person charged, and her/his counsel.23 This procedure is equivalent to Islamic procedures of justice, which require that charges brought against a person should not be false and should be made in the presence of a legal authority acting with full honesty and impartiality. Thus, the impartiality of the investigator or prosecutor, and even the locality of evidence gathering, should be natural and should not be imposed by any force on the accused at the time of confession. According to the framework of the ICC, the confirmation of pre-trial charges can be carried out by the Pre-Trial Chamber, on its own initiative or upon request by the prosecutor of the ICC, without the presence of the person being charged to confirm the charges. Article 63 of the Statute of the ICC provides two basic norms concerning the trial in the presence of the accused. These are: 1. The accused shall be present during the trial. 2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Such procedures before an Islamic international criminal court may or may not be accepted, depending on the gravity of the crimes committed and the reasons for the absence of the relevant accused. Under the procedure of the ICC, the confirmation of charges in the absence of the relevant person may take place under the following two conditions: a) when s/he has waived her/his right to be present, b) when s/he has fled and cannot be found. However, as a general rule of criminal jurisdiction, trial in the absence of the accused is not permitted under Shariah criminal law. In other words, a person cannot be subject to a judicial ruling unless he or she attends personally or is represented by another person such as legal counsel in an Islamic court proceedings. A judge should not dispose of a case in favour of one person against another if the accused or her/his representative is not

23

Article 61 (1).

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present. He should listen to both parties before delivering judgment.24 ‘Trials conducted in the absence of the accused or his agents are invalid.’25 Still, the Islamic law of evidence corresponds with that of the common law system; everyone is presumed innocent until proven otherwise in the court of law. In both legal systems, the burden of proof is on the complainant. An accusation in absence may not be practical and may reduce the integrity of any decision. With regard to the first reason (a), an established Islamic international criminal court cannot protest, since it is the individual who decides to give up her/his own rights concerning the waiver. As regards the second reason (b), one could assert that fleeing from prosecution does not in itself imply the admission of guilt or grant rights for the prosecutor’s office or the trial chamber to decide on her/his case in absentia. His flight may be based on the brutality of the trial, the non-authenticity of the trial, and the falsification of evidence by other people. Thus, depending on each case, Islamic criminal justice tries to be impartial and not violate the rights of the accused and society as well.26 In any event, a potential Islamic international criminal court may, like ICC procedures, recommend that all reasonable measures be taken in order to secure the defendant’s appearance before the Court in order to face the charges and hearing.27 Still, the Pre-Trial Chamber may be convened in cases when the defence counsel presents the defendant.28 This condition is fully acceptable for an Islamic international criminal court. In addition, Islamic law is very cautious about the accusation of a person, and any accusation without a certain amount of proof constitutes a sin and therefore creates responsibility for the accuser. The unfounded accusation of a person by legal authorities is even much more serious, because the authorities should be aware of the fact that any accusation by them causes serious legal and spiritual harm to the higher dignity of a person. When we accuse a person without sufficient proof, we not only harm her/his social, cultural, and family reputation, but also very seriously 24 Adel Omar Sherif, ‘Generalities on Criminal Procedure under Islamic Shariah’ in Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the SharƯah(London. New York: I. B. Tauris, 2003), pp.3-16, at 10. 25 Id. p.10. 26 I am not addressing here, however, the questions of brutality of criminal jurisdictions of certain Islamic nations in the application of brutal rules in the name of Islam. 27 Article 61 (2). 28 Article 61 (2) (b).

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harm her/his strength of mind, spirit, human essence, and ultimately her/his soul.

6. The Scope of Charges Therefore, according to the provisions of the ICC, other measures that should be taken before the trial are that the prosecutor must inform the person of the charges against her/him within a reasonable period of time, and a copy of these charges must be submitted to her/him.29 This condition is entirely reasonable and acceptable for a supposed Islamic international criminal court. Still, according to the provisions of the ICC, the prosecutor is also responsible for informing the person of the evidence that the prosecutor has decided to refer to at the hearing.30 This means that if a person is absent and not in a position to confirm the charges, a copy of the document relating to the charges must be submitted to her/his counsel. In addition, before a hearing, the prosecutor of the ICC may also continue her/his investigation and amend the charges brought against the accused. The amendment may make the circumstances of the case more relevant for charges or even support the withdrawal of charges against the person. Any amendment or withdrawal must be reported to the Pre-Trial Chamber and also to the person who has been charged.31 Obviously, none of these conditions can be against the rules of an Islamic international criminal court. For example, it is the duty of the prosecutor to provide sufficient evidence relating to each charge at the hearing,32 which obviously clearly protects the rights of the accused also protected by Islamic law. At the same time, in Islamic theory, it is the right of the accused to object to the charges and to challenge the evidence presented against her/him at national or international levels. In Islamic law, any individual has full rights to defend her-/himself and therefore a religious and legal right to present evidence against the charges brought against her/him. The ICC has similar guarantees.33 The trial of an accused in Islamic law may develop in different ways after the hearing, depending on the evidence presented by the parties or the prosecutor or the person accused of violating Islamic rules of justice. Islamic rules of justice, to be true, are not far from other rules of justice in the world, with the difference that various judicial authorities interpret them differently. 29

Article 61 (5). Article 61 (5). 31 Article 61 (4). 32 Article 61 (5). 33 Article 61 (6). 30

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The Islamic judge, prosecutor, and the judge(s) and jury in the trial court may decide that the evidence was not sufficient or confirm charges that it was sufficient. An Islamic international criminal court may, like the ICC or ad hoc international criminal tribunals, completely accept or reject the case under investigation. In both courts, the prosecutor may request the presentation of further evidence. Again, a pre-trial chamber may, in both international criminal courts, amend the charge(s) based on the fact that the evidence suggests the commission of different offences under the jurisdiction of the court.34 Any rejection of the charges against a defendant does not necessarily mean that the case is closed and that the prosecutor can no longer support the charge with additional evidence. The words of the ICC clearly enunciate this.35 That is why, if further serious charges are presented by one means or another, another hearing must be held. There are really very few discrepancies between the procedures of the ICC and a hypothetical Islamic international criminal court. Withdrawing or strengthening charges is very natural in the concepts of both courts. Article 61 of the ICC establishes this fact. Warrants that were issued up until the time of charges and then withdrawn will lose their juridical effect and obviously cease to have validity relating to the charges. The ICC oversees such provisions that may also be entered into a potential Islamic international criminal court.36 Otherwise, confirmation of charges means continuation of the case.37

7. Substance of Islamic Evidence The Islamic law of evidence relates to the commission of an offense. Evidence may take different forms. It may be testimony, a confession by the offender, or a solemn oath taken by the plaintiff. It may also be testimony given by the plaintiff. Evidence constitutes an important tool to prove defendant’s guilt or innocence. In Islamic criminal law, the burden of proof is on the accuser, and the presentation of evidence must not be delayed. A Quranic code requires from accusers “four witnesses in order to support their allegation.” Islamic scholars have interpreted the code differently. The most common practice is that evidence can be anything that proves innocence or guilt. 34

Article 61 (7). Article 61 (8). 36 Article 61 (9) and (10). 37 Article 61 (11). 35

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The testimony of witnesses is based on certain conditions such as maturity, impartiality, believing in one of the books of God, being publicly known as a trustworthy person, moral integrity, reliability, and, if necessary in certain specific circumstances, the witness may not be blind. In the early Islamic system, the value of testimony could vary according to the gender of witnesses. This was not accepted as a matter of principle, however, but as an opportunity to progressively broaden equal opportunity between genders. This theory is based on the fact that both genders are equal in the eyes of Islam but not in the eyes of human civilisation. Thus, Islamic theory strongly endeavoured to provide necessary enlightenment to society and to the jurisdiction of Islamic courts by opening the windows for women to the machinery of justice and by progressively proving and establishing the full value of the testimony of women. Today, this right of equality has been codified in Islamic human rights law, and any other interpretation indicates gender discrimination or crimes against women. Doubt as to the credibility of the evidence, including denial of confession during the prosecution process, may be considered adequate reason to invalidate the evidence, verdict, and sentence. Although confession is useful in Islamic criminal justice, the accused may not be convicted merely based on the confession of guilt. The existence of lawful and authentic evidence of confession is required. In analogy to the continental and the common law systems, if the evidence is proven to be invalid after sentencing, it immediately becomes a strong motive for a new verdict or acquittal. Similarly, a confession by the accused may not be considered legitimate if it is based on duress, force, threat, or if the age of the accused is under the threshold of criminal responsibility. Insofar as evidence is not misleading and has been lawfully obtained, it may be used for proof of a verdict of guilty or not guilty. In other words, guilt must be proven beyond any reasonable doubt. There are punishments for those who accuse other individuals of the commission of criminal offences or who bear false witness without substantial grounds. In addition, if necessary, legal proceedings may be carried out in camera in order to protect the accused, victims, or witnesses from public exposure and thereby prejudice a fair trial. According to Muslim jurists, some other qualifications of a witness in the Islamic law of evidence are that he should be of sound mind and possess a reliable character. The witness must have some degree of good health in order to express her/his testimony. As we have stated elsewhere, Islamic legal rules have also mentioned the grounds on which a witness can be disqualified, including insanity, idiocy, and lunacy. These factors,

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together and separately, render a person incapable of being a witness. Some reasons for disqualification of a witness are being non-Muslim, an enemy, a patient of short memory, a hypocrite, a liar, and having been convicted of Qazf.

CHAPTER TWELVE HARMONISING THE PROCEDURAL CONDITIONS FOR THE TRIAL OF THE ACCUSED

1. Comparative Judicial Trial The trial of the accused constitutes one of the most serious and sensitive parts of an international criminal jurisdiction. In fact, the trial of the accused is an official judicial investigation into the evidence that has been collected, investigated, and submitted to a criminal court. To this end, various judges, the prosecutor, and assistants to the prosecutor are involved. Their decisions and statements influence the destiny of the accused: guilty or not guilty. In the concept of an Islamic international criminal court and even the ICC, the trial should be open to the public, provided there are no other serious matters having a negative impact on an impartial judgment.1 This means that there are major similarities between the two legal systems. Precautionary measures are also taken in order to safeguard judges, the jury, victims, witnesses, and the accused person(s) from any actions against them. The fact is that both legal systems protect the rights of international human society, and a counsel is chosen to protect the rights 1

However, it is a fact that in Islamic state of Iran, sexual violation of the rights of the accused, in particular, the politically accused, has systematically occurred. ‘Iran giving out condoms for criminals to rape us, say jailed activists’ (2011), available at https://www.theguardian.com/world/2011/jun/24/jailed-iran-opposition -activists-rape (visited on 6 February 2017); Victims Recount Stories of Rape in Iranian Prisons (2013), available at http://www.rudaw.net/english/middleeast/ iran/27032013 (visited on 6 February 2017); New Report on Rape in Iranian Prisons, the Iran Primer, United State Institute of Peace (2011), available at http:// iranprimer.usip.org/blog/2011/jun/29/new-report-rape-iranian-prisons (visited on 6 February 2017); Sexual Torture to Stifle Dissent, Iran Truth (2009), available at http://irantruth.org/backgrounder/rape-as-a-weapon-in-irans-prisons/ (visited on 6 February, 2017); See Hina Azam, Sexual Violation in Islamic Law: Substance, Evidence and Procedure (Cambridge: Cambridge University Press, 2015).

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of the accused. Normally, a considerable number of measures are taken with the intention of maintaining a fair and just trial. Measures of protection to ensure fair and just trail are normally a part of civil and criminal jurisdictions. This is particularly evident in the case of international criminal jurisdiction, which is a mixture of political, juridical, and humanitarian outcomes. The ICC, like many national courts, takes such protective measures in many areas. For example, the provisions concerning trial in the International Criminal Court are more or less a combination of common law and civil law traditions. Adversarial and inquisitorial methods are applied and used. In other words, although the ICC relies on provisions of both legal systems, such provisions have long been practiced in the Islamic criminal legal system. Investigation and conviction according to criminal codes, including assessment of the case law. In other words, the judgments of the ICC, the ICTY, the ICTR, the SCSL, and many other courts (e.g., Cambodia) make many references to each other’s judgments. This can also be seen in the judgments of the International Court of Justice and vice versa. Islamic courts and their practice, particularly their criminal courts, are worthless if the accused is not present during the trial procedures. However, in certain situations where the presence of the accused person is not convenient, other measures may be taken (as practiced in international criminal courts). Of course, prior to being removed, the accused must be reminded to observe the rules of the trial and warned that s/he will be removed from the courtroom in case of disregard.2 The ICC may use communication technology if it is considered necessary. The Islamic criminal legal systems in many different Islamic nations make use of all necessary modern developments. In addition, it is proper Islamic philosophy that human beings should be protected at all times, even if they have committed serious crimes. The reason is very simple: humanity should always be given priority over barbarity, and the accused should be treated humanely and with full respect for her/his rights. That is why the Islamic system is originally based on the principle of forgiveness. Pure Islamic criminal law begs for justice and recommends that human beings ensure that justice is not violated under any conditions, even where injustice prevails. The Islamic main source provides that:

2

Article 65. This article is one of the key articles in proceedings of the International Criminal Court. It contains several basic elements regarding the appropriate application of judicial procedure. See supra.

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Indeed, I am on clear evidence from my Lord, and you have denied it. I do not have that for which you are impatient. The decision is only for God. He relates the truth, and He is the best of judges.3

Significantly, the “Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of the victims and witnesses.”4 This implies the fact that the Trial Chamber is responsible for ensuring a fair trial in the proceedings of its jurisdiction. Logically, an Islamic international criminal court cannot go against these significant provisions of the procedures of the ICC. Still, an Islamic criminal court, like the criminal procedures of the ICC, may, under certain circumstances, require proceedings to take place in closed session to protect confidential or sensitive information.5 In addition, no national, regional, or international criminal court can be legally binding if the accused, in one way or another, cannot follow the language of the trial. In fact, it is an established principle of international criminal justice that the accused understand the language of the trial.6

2. Arguments on Guilty Pleas As long as justice does not prevail in society, peace will not be achieved. Justice is therefore one of the cornerstones of a healthy national, regional, and international society. An appropriate Islamic theory guides everyone to strive for the creation of a just society, not only for themselves but also for the enemy. The Islamic theory of criminal law is, in essence, against any crime and, at the same time, against any idea that may harm justice by evidence obtained by force. Therefore, Islam commands its followers to be just even towards themselves. One of the serious problems a court may face is the question of guilty pleas. Even in the International Criminal Court, the issue is whether the Court can succeed in procuring a guilty plea from the defendant. This implies that the accused willingly accepts the conviction. In that case, the proceedings will be less complicated. It also means that the accused accepts her/his criminal responsibility for the commission of certain crimes. In an Islamic court, if such a guilty plea is expressed freely and is not based on torture or any other inhumane conduct by the department of 3

Q, 6:57. Article 64 (2). 5 Article 64 (7). 6 Articles 64(5) (b) and Article 67 (1) (a). 4

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justice, and the intention is not to hide the discovery of further crimes or criminals, the Court may accept the confession of the accused. The practice of international criminal courts regarding guilty pleas depends on each case and on whether the accused has voluntarily accepted her/his guilt. Although guilty pleas decrease the workload of the courts and increase their capability to deal with another case, the courts have been very critical of the guilty plea. A clear example of this occurred in the Drazen Erdemovic case relating to crimes against humanity. The Appeals Chamber rejected the plea of guilt7 that had been accepted by the Trial Chamber.8 Erdemoviü was a soldier in the 10th Sabotage Detachment of the Bosnian Serb Army in July 1995. He participated in the execution of hundreds of unarmed Bosnian Muslim men from the Srebrenica enclave. Erdemoviü was the first person to enter a guilty plea at the Tribunal. He also testified as a witness in separate trials, presenting important and valuable evidence about crimes committed against the Muslim population. Erdemoviü was sentenced to five years of imprisonment. In his trial, he voiced his deep regret over what had occurred against the Muslims: Yes, it is OK. First of all, honourable Judges, I wish to say that I feel sorry for all the victims, not only for the ones who were killed then at that farm, I feel sorry for all the victims in the former Bosnia and Herzegovina regardless of their nationality. I have lost many very good friends of all nationalities only because of that war, and I am convinced that all of them, all of my friends, were not in favour of a war. I am convinced of that. But simply they had no other choice. This war came and there was no way out. The same happened to me. Because of my case, because of everything that happened, I of my own will, without being either arrested and interrogated or put under pressure, admitted even before I was arrested in the Federal Republic of Yugoslavia, I admitted to what I did to this journalist and I told her at that time that I wanted to go to the International Tribunal, that I wanted to help the International Tribunal understand what happened to ordinary people like myself in Yugoslavia. As Mr. Babiü has said, in the Federal Republic of Yugoslavia I admitted to what I did before the authorities, judicial authorities, and the authorities of the Ministry of the Interior, like I did here. Mr. Babiü when he first arrived here, he told me, "Dražen, can you change your mind, your decision? I do not know what can happen. I do not know what will happen.

7 8

Prosecutor v. Erdemovic (Case No.IT-96-22-A). Prosecutor v. Erdemovic (Case No.IT-96-22-T).

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I told him because of those victims, because of my consciousness, because of my life, because of my child and my wife, I cannot change what I said to this journalist and what I said in Novi Sad, because of the peace of my mind, my soul, my honesty, because of the victims and war and because of everything. Although I knew that my family, my parents, my brother, my sister, would have problems because of that, I did not want to change it. Because of everything that happened I feel terribly sorry, but I could not do anything. When I could do something, I did it. Thank you. I have nothing else to say.9

Because of considerable doubt about the validity of guilty pleas, the accused must plead guilty of her/his own free will and be fully aware of the character and nature of the charges. The statement of the accused and her/his cooperation with the jurisdiction and judgment of the Court have a decisive function in the implementation of a lawful and fair trial. The accused must be able to understand the difference between various international crimes before accepting a plea of guilty or not guilty. Moreover, the accused may confuse the truth due to moral or physical duress arising from the order of superiors or other conditions. Thus, a guilty plea may not be as easy as it may seem, and even if we accept that the admission of guilt has juridical value, it is not readily apparent that such admission has any juridical effect. It may even hinder the relevant national, regional, or international courts from requiring additional procedures to investigate the criminal conduct for the purpose of proper exploration of the case. Furthermore, an accused may use guilty pleas in order to hide her/his role in other criminal activities í it may, in other words, help him or her to impunity.

3. Corpus of Guilty Pleas In civil law countries, the role of pleas is not significant. This is different in common law countries. In Islamic law, either a legal system or a mixed jurisdiction, namely the adquisitorial method, is applied. However, it is either based on a) legal validity, b) willingness of the accused to admit the criminal conduct, or, c) as the international criminal courts imply, the guilty pleas should not be a reason for impunity. Still, it may not be essential to find out whether an accused pleads guilty or not at the outset. The reason is that if the accused accepts the commission of the crime, s/he naturally accepts her/his guilt. If s/he does not accept the guilt, s/he is 9

http://www.icty.org/en/content/dra%C5%BEen-erdemovi%C4%87.

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not guilty unless the court proves otherwise. The admission of having committed a crime under the jurisdiction of an international court does not automatically signify the conclusion of the trial. Therefore, a court is under obligation, by its Statute, to examine the case correctly in order to establish the exact nature of the criminal conduct.10 The court should therefore scrutinize proof or confessions to determine the appropriate penalty. For example, concerning the International Criminal Court, the admission of guilt shall be determined on whether: (a) The accused understands the nature and consequences of the admission of guilt; (b) The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and (c) The admission of guilt is supported by the facts of the case that are contained in: (i) The charges brought by the Prosecutor and admitted by the accused; (ii) Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and (iii) Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused.11

This means that the Trial Chamber of the ICC may state that the presentation of the facts is not sufficient and therefore other facts must be presented.12 This would be the same for an Islamic international criminal court alongside the ICC. Like the ICC, the Islamic system is very careful to seek out the reality of the case and to be sure that it does not convict the accused without sufficient evidence. Furthermore, in an Islamic system: The raison d’être of witnesses in a court of law is obviously the creation of a connecting link between the judge and the facts or actual events of the case. Thus, through testimony our knowledge is extended to things beyond 10

Article 65 clearly states that “2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. 5. Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt as not having been made, in which case it shall order that the trial be continued under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber.” 11 Article 65 (1). 12 Article 65 (4).

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our individual experience, such as our knowledge of the existence of remote, which we have never visited, or, as in a criminal law suit, of events which took place sometimes in the past.13

All these measures mean that both legal systems aim to secure the corpus of justice for both sides of the case, i.e., for the accused and the victim. It also means that an Islamic international criminal court (or the ICC) may require additional evidence and this may take more time than anticipated. The intentions of all these measures are to protect the interests of justice where the trial courts consider them essential for the admission of guilt or non-guilt. Islamic law has a high level of awareness that judges do not convict a person without sufficient evidence and also do not sanction punishment for those who are innocent and have wrongly come under the mills of justice. Therefore, the decision of the court must be based on sufficient evidence. This is the same for the ICC or any other international criminal court or tribunal.14 Yet, for a proper treatment of the case, before deciding on the sentence, the trial chamber of an international court may hold a further hearing either on its own or the prosecutor’s initiative.15 Any decision or sanction has to be pronounced in public and in the presence of the accused.16

4. Witness Requirements For a person to be recognised as a witness, some conditions are listed in the practical application of Islamic law: 1. 2. 3. 4. 5.

The principle of impartiality in the case Non-beneficial purposes in testimony The year of the birth of the witness should be without doubt The witness should not have a close relationship with the suspect There should be no potential conflict between the suspect and the witness 6. The person should be known for her/his rightful judgment

13

Wael B. Hallaq, ‘On Inductive Corroboration, Probability and Certainty in Sunni Legal Thought’, in Nicholas Heer, Islamic Law and Jurisprudence (London: University of Washington Press), pp. 5-51, at 9. 14 Article 76 (1). 15 Article 76 (2). 16 Article 76 (4).

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7. The testimony of a guardian given about the subjects under his control is not valid 8. The person may not have attained the age of wisdom. This means the person may be a very small child or a minor. 9. The testimony of minors may be accepted in the case of murder, depending on certain conditions: if there are no other witnesses and if the first statement is given sufficient attention and various questions are not put at different times. Different types of questions may elicit a different set of response options that may confuse the minor. All these requirements remain conditional and depend on the given case situation. 10. The person must understand the effect of her/his testimony in a court of justice. S/he should realise the fact that her/his testimony can cause unconditional problems for the suspect. 11. S/he should be a wise person and not suffer from unresolved psychological problems 12. Testimony from the insane is not valid 13. Testimony from a person who entirely depends on an addictive substance such as alcohol or heroin is not valid 14. Someone who is accused cannot be a reliable witness in another case 15. The person may not have numerous criminal records and his conscience been affected due to his background 16. Testimony from two persons who are one another’s opponents is not valid 17. Testimony from friends for one another is not valid 18. Testimony from someone who is hired by the suspect is not valid 19. Testimony from a beneficiary is not credible 20. The testimony of a non-Muslim about a Muslim or vice versa was very negative in the initial revelation of Islamic law, and this question has been taken very seriously. However, the question is very sensitive for national courts today and must almost be considered an abolished institution. The testimony of a non-Muslim about a Muslim or vice versa should have full legal effect.

5. Testimony Genuine Islamic theory teaches that all individuals should speak the truth under all circumstances, even if they are afraid, and that God does not like lies. Lies exhibit the propensity of man to evil and this should not be given priority in social relations. Islamic law particularly makes it a crime and a

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serious violation of the principles of justice if lies by a witness become determinative and cause the suffering of others. O you who have believed, testimony [should be taken] among you when death approaches one of you at the time of bequest í [that of] two just men from among you or two others from outside if you are travelling through the land and the disaster of death should strike you. Detain them after the prayer and let them both swear by God if you doubt [their testimony, saying], ‘We will not exchange our oath for a price, even if he should be a near relative, and we will not withhold the testimony of God . Indeed, we would then be of the sinful.’17

Although we do accept that virtually every system of criminal mechanisms í whether Western or non-Western í requires evidence of fault, such as negligent intention in order to convict a person of an offence, the evidence must be authentic. It is not only against the principle of legality but also against the principle of morality to submit false evidence to an Islamic international court. This principle may be defined as follows: The principle of morality in Islamic law establishes what is right and what is wrong, and is associated with two acknowledged principles of Islamic law, amr bil maroof and nahi ‘anil munkar. Similar principles can be found in traditional philosophies of law. The principle of morality may also be thought of as the principle of the love for justice when the basic elementary requirements of social relations are infringed during war or peacetime. The Nuremberg Tribunal also recognized the principle of morality as one of the most serious contributions of the trials. The principle of morality in fact played an important role within the Charter of the Tribunal, the Tribunal’s procedures, and the official record of the individual indictments and judgments. The entire structure of the Charter was based on two pillars: the principle of legality and the principle of morality.18

The principle of morality is definitely also integrated into the ICC, even though with one-eyed justice. One of the core intentions of the ICC is also to prevent any false information that misleads the court and frustrates the judgment. Consequently, there are certain measures governing offences against the administration of justice. The decisions of the Prosecutor of the ICC have been very controversial in terms of the leaders of strong political 17

Q, 5:106. Farhad Malekian ‘Comparative Substantive International Criminal Justice’, in Ronald Slye (ed.),The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (2017), pp.10-44, at 17. 18

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parties, however, ultimately leading to impunity. Nevertheless, the International Criminal Court has jurisdiction over the following offences if they are committed intentionally: (a) Giving false testimony when under an obligation pursuant to article 49, paragraph 1, to tell the truth; (b) Presenting evidence that the party knows is false or forged; (c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his/her duties; (e) Retaliating against an official of the Court on account of duties performed by that or another official; (f) Soliciting or accepting a bribe as an official of the Court in connection with his/her official duties.19

None of the above provisions is against the basic understanding of evidence in Islamic law.20 This means that the concept of an Islamic international criminal court may endorse the application of the above provisions. In addition, giving false testimony is punishable under Islamic law,21 and it is the same in the ICC. The international court imposes a term of imprisonment not exceeding five years or a fine.22 The state parties to the Statute of the ICC are also responsible for supporting the relevant provisions and penalising offences against the integrity of their own criminal jurisdictions.23

6. Testimony of Witnesses As a general rule, all persons can give testimony before the jurisdiction of a court. Under Islamic law, a witness must be sane and should have reached the age of fifteen. Testimony may be given by women, men, the old, or the young. A blind person may also be a witness. But the value of the testimony of witnesses may vary from case to case and at the 19

Article 70 (1). Abdul Rahman Abdul Muin, Witnesses in Islamic Law of Evidence (Pelanduk Publication: Selangor, 1999) 56. 21 Id. 22 Article 70 (5). 23 Article 70 (4). 20

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discretion of the judges. There is no particular restriction on this in Islamic law. However, testimony must be correct and not misleading. In other words, all witnesses are morally and legally responsible for their testimony. The moral responsibility is mostly based on the strength of beliefs and legal responsibility as regards the principle of asserting truth in a court of justice and not violating the integrity of jurisdiction: [the] standard to which evidence and testimony should confirm, to justify the imposition of prescribed penalties, is also very high and, impeachable proof is a condition precedent for the award thereof. Extreme caution is the rule for the evaluation of the probative value of evidence and testimony produced against the accused. Consequently, the sphere of prescribed penalties is reduced considerably. However, it does not imply there from that only prescribed penalties are laid down by the Islamic system of the administration of criminal justice. On the country Shariah provides for the imposition of other penal sanctions (derivative penalties), while operational area of prescribed penalties is restricted. The effective reach of the statutory or derivative penalties is very extensive, so much so, that even in case of the said serious offences if prescribed penalties could not be imposed for a weighty reason, the state possesses the power to make laws providing for the imposition of other penalties in such cases.24

The discretion of an Islamic judge is even more fundamental in the corpus of the judicial system and is an integral part of the facets of judgment. It is an essential instrument in the kit of legal characteristics of every judge and even lawyer. It subtly guides the legal use and submission of what is often blunt evidence towards. In fact, In case of those serious offences, where no appointed penalties exist, or where, though the penalty is appointed but could not be imposed because of doubt and non-imposition is likely to produce mischief, then, the judge shall have to act according to his own conclusions reached after due thought and reflection. Circumstances of affaires are of an infinite variety; hence, action according to one’s own conclusions is definitely preferable.”25

Although the ICC does not refer to the moral responsibility of witnesses, it is axiomatic that moral responsibility is also integrated into the witness’s legal responsibility before the Court, even though a witness may not be a 24

Mohad Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), p.89. 25 Jamai Ta’azir p.274 quoted in Mohd Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), pp.89-90.

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religious person. Obviously, the Court does not judge on Islamic principles but on the standard of international human rights principles. The Court does not necessarily put any value on religious affiliation but on the ethical understanding of rendering a fair judgment. In other words, the discretion of a judge is essential in the finding of the truth concerning evidence, witnesses, and any other evidence presented. Under Islamic criminal justice, witnesses must have the following qualifications: A) The witness may not be mentally ill. This includes the time when s/he observed the incident and when s/he testifies in the court. B) The witness must, in one way or another, be capable of expressing her/his view in a language. If s/he cannot speak, s/he should write her/his testimony down, and if s/he is not capable of writing, s/he should demonstrate it by signs or symbols. C) Testimony by a minor is subject to specific circumstances and the nature of other evidence. D) A competent witness may not have any problem with her/his memory when recalling the incident and when giving testimony. E) The testimony of a blind person may be accepted by a court if s/he is capable of hearing. F) The testimony of a witness must be based on her/his own view. If s/he gives testimony to what s/he has heard from another person, the validity of the testimony may rapidly decrease. G) The witness may not be notorious for scattering false news. The validity of such testimony may decrease. H) There is no condition that the witness need be Muslim.26 I) A judge who rules on a case cannot be a witness in the same case.

7. Testimony of a Judge According to common and civil law systems, the conviction of the accused must be based on documents or the testimony of witnesses, or both. The conviction should also be carried out publicly and in a courtroom. The reason for this policy of applying and administering the law is to prevent a judgment based on the personal knowledge of a judge. A judge may even disqualify herself/himself from taking the case, based on extra knowledge concerning the proof or disproof of a crime. In the civil and common law systems, the entire procedure may be rejected because of the circumstances 26

The Q, 5:106.

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of the case. In other words, the testimony of a judge is not acceptable if s/he is involved in the judgment of a case. The Statute of the ICC refers to the above matters as well.27 Islamic jurisprudence however, has adopted rather different measures and policies concerning the above subject matter. There are three different opinions. According to one opinion, a judge is permitted to preside even if s/he has prior knowledge concerning the case. This view is based on the interpretation of the following verse: “O ye who believe! Stand out firmly for justice and be witnesses for God, even though it is against yourselves, or against your parents, or your kindred. Whether he, against whom witness is borne, be rich or poor, God is a better protector to them than you are. Therefore, follow not your low desires that you may be able to act equitably. And if you distort your witness or refuse to give it, verily, God is ever well-acquainted with all what you do.”28 According to another view, which governs Hudud offences, the judge is strongly prohibited from presiding over a case if s/he has prior knowledge. Hudud offences are crimes against the foundation of humankind, such as theft or murder. According to one opinion, the judge may benefit from prior knowledge. The second opinion is, in fact, a different interpretation of the same verse. Nevertheless, the prevailing view is to prohibit the judge from presiding if s/he has prior knowledge. S/he may testify in court but not render judgment. The third view does not separate the provisions of the above verse but interprets them in the light of public interest and particularly in the light of rightful justice. This is because “stand out firmly for justice” and “give witness” do not necessarily mean to lose objectivity and harm public trust in the administration of justice. Furthermore, the phrase “if you distort your witness or refuse to give it” simply means not to hide and to contribute to justice with a good heart and good ambition. In other words, the entire verse in the above encourages the positive contribution of all individuals to the body of justice and condemns hiding the truth.

8. Testimony of Women For the establishment of facts in court, there are different means of proof. One significant part is the testimony of the witnesses. The procedures of Islamic courts requiring two women as witnesses for one man should be regarded as abolished and internationally invalid. This 27 28

See Article 41 on excusing and disqualifying judges. The Q, 4:155.

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procedure was permitted during the first period of Islam when civilisation was in its primitive phase. The Arab nations gradually came to understand the equal value of man and woman.29 Otherwise, the Islamic theory would not state “People, we created you all from a single man and a single woman, and made you into races and tribes so that you should get to know one another...”.30 In yet another verse, the Islamic law mentions the significant value of man and woman to the believer, with a very diplomatic approach to the question of equality, so that Arab and other civilisations of the world do not object to its content. It says that “…whoever does good, whether male or female, and he is a believer, these shall enter the garden.”31 Here, Islam does not insinuate unequal rights but equal rights. How could women be unequal on earth and equal in heaven? Naturally, this has to be understood in the context of the development of the knowledge of man or enlightenment. If the majority of Islamic courts have not yet understood this first principle of humanity in their present relations, how could the Arabs of former times have realised the intention of the verses of Islamic theory, and how could Islam fight against ignorance? Our conclusion is the same for other Islamic nations.32 The second means of proof is the admission of the defendant or accused and, in the case of non-existence of the first two, the refusal of the defendant to take an oath denying the claim. In the case of the ICC or any other international criminal court, any discussion on the value of testimony by a man or a woman and the associated question of which one is better is obviously redundant and embarrassing.

9. Nature of Evidence The nature of evidence is not necessarily restricted to the testimony of human beings. Therefore, the term “testimony of witnesses” stated in the Quran is an example of one of the tools of criminal justice and does not preclude other forms of evidence. Consequently, the nature of evidence is not restrictive in the words of the Quran. The term “evidence” is used in 29 For a deep analysis of position of woman in Islamic law read Niaz A. Shah, Women, the Koran and International Human Rights Law: The Experience of Pakistan (Netherlands: Brill | Nijhoff, 2007). 30 The Q, 49:15. 31 40:40. 32 Consult Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (2001), 264-268.

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several contexts and offers different variations for proof of various matters. It says that “Our apostles came with clear evidence.”33 From another position, the term “evidence” is used as a confirmation of certain matters. It reads that “those who reject the truth, among the People of the Book and among the Polytheists, could not have broken up themselves from their ways till the clear evidence came to them.”34 Similarly, the term “evidence” is significant in the manifestation of great proof. For instance, it is stated that “nor were those people of the Book divided except after the clear evidence came to them.”35 All these variations mean that the content of evidence should be clear in itself and should not require clarification by other means. In general, the presentation of evidence must not be delayed; otherwise, the value of the evidence may be reduced. Accordingly, all matters that may prove, in one way or another, the character of the criminal case and support the evidence that the accused is or is not guilty may be valuable and are supported by the general theory of Islamic jurisprudence. The evidence must be conclusive, however, and in conformity with other evidence, depending on the discretion of the judge. Nevertheless, it is apparent that the evidence must not lose its conclusiveness before or even after the execution of a judgment. Unlike the law of the ICC, the Islamic Court may refer to any authentic material that can be useful for or against proof of guilt. In fact, the Rules of Procedure and Evidence open the door for a broader interpretation of the provisions of the ICC. Like Islamic jurisprudence, the presentation of evidence is not limited to certain already presented evidence. The discovery of new evidence may also be a reason for a change in circumstances and the presentation of new facts before the Court.

10. Reliability of Evidence Traditionally, evidence with a high degree of reliability under Islamic jurisprudence consisted of eyewitness testimony, confessions, and religious oaths. The question of the reliability of evidence was, therefore, one of the most serious questions of justice, and justice could not be rendered if it was proven that the evidence presented during the proceedings was false, irrational, or not authentic on the whole. This is why Islamic criminal jurisprudence stresses that those who present false evidence and create contradictions within the criminal justice system are 33

The Q, 5:52. The Q, 98:1. 35 The Q, 98:4. 34

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morally and legally responsible for the falsification of evidence. Thus, those who bring allegations causing harm to the accused and to the body of criminal justice and Islamic law are to be punished according to the provisions of the law. For instance, in support of women’s rights and their integrity in the criminal justice system, the Quran reads “And those who launch a charge against chaste women who protect their modesty while failing to bring four eye-witnesses to support their allegations, (punish them …) and you shall never accept their testimony or evidence: for such men are wicked transgressors.”36 It is axiomatic that the verse clearly condemns bringing false witnesses, presenting movable or immovable evidence, and proclaiming evidence without a proper basis. According to its provisions, wrong and evil evidence is immoral and therefore iniquitous. Similarly, it is a great sin to destroy evidence that may be used to prove guilt or innocence. Therefore, all these actions are considered offences against the administration of justice and call for punishment.37 The above provisions of Islamic law may more or less be found in the inner structure of the ICC. For instance, with the permission of the PreTrial Chamber, the prosecutor of the ICC may “... pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available.”38 It is, in fact, the duty of the prosecutor “to prevent destruction of evidence.”39 Furthermore, according to the Statute of the ICC, the following are offences against the administration of justice: i) providing false testimony, ii) not telling the truth, ii) presenting forged or false evidence, iv) corruptly influencing any witness in the Court, v) interfering with or hampering the attendance or testimony of any witness, vi) retaliating against a witness for

36

The Q, 24:4. Badar, Mohamed Elewa, ‘Islamic Criminal Justice in the 21st Century’, 9 (4) International Criminal Law Review (2009), pp. 591-595; El-Awa, Mohammad, Punishment in Islamic Law (Indianapolis: American Trust Publications, 1982); Abd-elrahim, Gaafer Mohamed, The Concept of Punishment in Islamic Law in Relation to Contemporary Legal Trends (1987); Bassiouni M. Cherif and Ved P. Nanda (eds.), A Treatise on International Criminal Law: Crimes and Punishment (2 vols. 1975); Tawfik, Ahmed Hamdy, ‘The Concept of Crime in the Afghan Criminal Justice System: The Paradox between Secular, Tradition and Islamic Law: A Viewpoint of an International Practitioner’, International Criminal Law Review, Vol. 9, Number 4, 2009, pp. 667-687. 38 Article 18 (5). 39 Article 18 (1). 37

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giving testimony, vii) interference with the collection of evidence.40 All these offences imply the fact that evidence must be reliable in both legal systems and should not contradict the purpose of pure criminal justice.

11. Rights of Accused in Customary International Law Bearing in mind the systematic violations of the system of international criminal law and Islamic international criminal law committed under the ISIS members, I must list some of the most recognised international rights of accused persons that must, at all times, be respected in the proceedings of an international criminal court including an Islamic one. They are the manifestation of conventional and customary international law. It is a fact that any accused person is entitled to protect himself during the proceedings of a criminal court regarding the application of the basic principles of human rights. The respect of these rights is inaliable in any criminal court dealing with core international crimes such as crimes against humanity, war crimes, aggression, genocide, rape,and torture. Some of the most significant rights of accused persons for international crimes include the following:41 40

Article 70. The list was adopted from my work on Malekian Farhad, ‘Emasculating the Philosophy of International Criminal Justice in the Iraqi Special Tribunal’, Cornell International Law Journal, 58/5 (2005) 675-725, at 711-712. For instance see the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 55/89, U.N. Doc. A/RES/55/89 (Dec. 4, 2000); Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, U.N. Doc. A/RES/45/111 (Dec. 14, 1990); United Nations Rules for the Protection of Juveniles Deprived of their Liberty, G.A. Res. 45/113, U.N. Doc. A/RES/45/113 (Dec. 14, 1990); United Nations Standard Minimum Rules for Non-custodial Measures, G.A. Res. 45/110, U.N. Doc. A/RES/45/110 (Dec. 14, 1990); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. Doc. A/RES/43/173 (Dec. 9, 1988); G.A. Res. 40/146, U.N. Doc. A/RES/40/146 (Dec. 13, 1985); G.A.Res. 40/32, U.N. Doc. A/RES/40/32 (Nov. 29, 1985); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N.Doc. A/RES/39/46 (Dec. 10, 1984); Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.Res. 37/194, U.N. Doc. A/RES/37/194 (Dec. 18, 1982); Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, U.N. Doc. 34/169 (Dec. 17, 1979); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452 (XXX), U.N. Doc. A/10034 (Dec. 9, 1975); Principles 41

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i) The right of the accused to be informed of the charges against her/him. ii) The right of the accused to remain silent. iii) Respect for the rights of the accused at pre-indictment stages. iv) Accused persons shall not be kept with convicted persons and shall be subjected to separate treatment as appropriate to their status according to international criminal rules. v) Accused persons should not be discriminated against on account of sex. vi) The treatment of accused persons should not depend on their former positions. vii) Accused persons should not be deprived of sleep or rest. viii) Primary living conditions must be available to accused persons. ix) Under adequate supervision, accused persons shall be allowed to have contact with their family and friends at regular intervals, both by correspondence and in person. Further, accused persons have the right to read books and newspapers. x) Accused persons should not be kept in a place that is harmful to their health. xi) The health conditions of accused persons should be respected at all times. xii) Based on an official certificate from a legitimate doctor, an accused person has a legal right to medical treatment. xiii) The right to food should not be ignored. xiv) All those who are dealing with the accused persons during a criminal tribunal should be wholly impartial toward the accused person’s political, juridical, economic, social, cultural, religious, and theoretical beliefs. on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, E.S.C. Res. 1989/65, U.N. Doc. E/1989/89 (May 24, 1989); Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, E.S.C. Res. 1984/50, U.N. Doc. E/1984/84 (May 25, 1984); Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663C (XXIV), U.N. Doc. E/5988 (May 13, 1977); Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, U.N. Doc. A/CONF.144/28/Rev.1 at 112; Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, Basic Principles on the Role of Lawyers, U.N. Doc. A/CONF. 144/28/Rev.1 at 118; Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, Guidelines on the Role of Prosecutors, U.N. Doc. A/CONF.144/28/Rev.1 at 189.

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xv) The rights of the accused should not be interrupted or disregarded during the proceedings due to certain judicial expediencies. xvi) An accused person has a legal right to be informed immediately of the charges against her/him and the grounds for such charges in a language that s/he understands. xvii) The accused person has a legal right to adequate facilities and time for the preparation of his defense. xviii) The accused person has a legal right to the assistance of legal counsel. xix) The accused person has a legal right not to testify during the proceedings. xx) The accused person has a legal right to a fair proceeding and a public hearing within a reasonable period of time. xxi) The accused person has a right to public hearings when brought before a criminal court. This right is granted by international norms governing the protection of human rights. The right is based on the theory that, if a tribunal wants to ensure fairness, it has to hold primarily open and public hearings, including publicly pronounced judgments. xxii) An accused person is presumed innocent until proven otherwise. xxiii) The accused person has the right to be present when the trial begins. xxiv) No political officials should overlook the rights of the accused during the proceedings of the tribunal. xxv) The accused person has a legal right to defend her-/himself in person or through any other judicial assistance in accordance with his own choice. xxvi) Since the understanding of certain international criminal law terms may be difficult, the accused person should have access to a free interpreter. xxvii) The accused person has the right to examine witnesses. In certain extraordinary circumstances, the witness may be examined under oath prior to the tribunal hearings, upon authorization by the tribunal or judges of the tribunal. xxviii) The accused should not be convicted for an act or omission that was not a crime at the time it was committed or omitted according to the provisions of national law or international criminal law. xxix) Confessions obtained through coercion do not have legal or juridical validity in the proceedings of a criminal tribunal. This principle has an important place in conventional international criminal law.

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xxx) The threat or use of degrading and humiliating treatment against accused persons or their families for the purpose of extracting evidence should not be admissible in fair and just proceedings of a national or international criminal court. xxxi) The accused person has a right to appeal. It is very doubtful in the case of the ISIS that this principle can be workable from a procedural point of view. In the international criminal tribunals, an appeal is heard by the Appeals Chamber of the tribunal. xxxii) Capital punishment is prohibited. This principle has been established in customary international law and utilized by the international criminal tribunals.

CHAPTER THIRTEEN THE CRIMINAL DEFENDANT IN AN ISLAMIC INTERNATIONAL CRIMINAL COURT

1. Anatomy of Rights The Islamic criminal justice system provides equal principles of criminal jurisdiction for all individuals, irrespective of their social status. These include questions of arbitrary arrest, remand in custody, detention, equality in a public hearing, the principle of not guilty until proven otherwise before an impartial criminal jurisdiction, and equality in all procedures of prosecution and punishment.1 The 2004 Arab Charter on Human Rights 1

According to one writer, “Islam has also laid down the principle that no citizen can be imprisoned unless his guilt has been proved in an open court. To arrest a man only on the basis of suspicion and to throw him into a prison without proper court proceedings and without providing him with a reasonable opportunity to produce his defense is not permissible in Islam. It is related in the Hadith that once the Prophet was delivering a lecture in the Mosque, when a man rose during the lecture and said: ‘O Prophet of God, for what crime have my neighbours been arrested?’ The Prophet heard the question and continued his speech. The man rose once again and repeated the same question. The Prophet again did not answer and continued his speech. The man rose for a third time and repeated the same question. Then the Prophet ordered that the man's neighbours be released. The reason why the Prophet had kept quiet when the question was repeated twice earlier was that the police officer was present in the Mosque and if there were proper reasons for the arrest of the neighbours of this man, he would have got up to explain his position. Since the police officer gave no reasons for these arrests the Prophet ordered that the arrested persons should be released. The police officer was aware of Islamic law and therefore did not get up to say: ‘the administration is aware of the charges against the arrested men, but they cannot be disclosed in public. If the Prophet would inquire about their guilt in camera I would enlighten him.’ If the police officer had made such a statement, he would have been dismissed then and there. The fact that the police officer did not give any reasons for the arrests in the open court was sufficient reason for the Prophet to give immediate orders for the release of the arrested men. The injunction of the Holy Quran, is very clear on this point. ‘Whenever you judge between people, you

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has also paid particular attention to the rights of the accused during criminal procedures: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest, search or detention without a legal warrant. 2. No one shall be deprived of-his liberty, except on such grounds and in such circumstances as are determined by the law and in accordance with such procedure as is established thereby. 5. Anyone who is arrested shall be informed, at the time of arrest, in a language that he understands, of the reasons for his arrest and shall be promptly informed of any charges against him. He shall be entitled to contact his family members. 4. Anyone who is deprived of his liberty by arrest or detention shall have the right to request a medical examination and must be informed of that right. 5. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. His release may be subject to guarantees to appear for trial. Pretrial detention shall in no case be the general rule. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to petition a competent court in order that it may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. 7. Anyone who has been the victim of arbitrary or unlawful arrest or detention shall be entitled to compensation.2

should judge with (a sense of) justice’ (4:58). And the Prophet has also been asked by God: ‘I have been ordered to dispense justice between you. ‘This was the reason why the Caliph Umar said: ‘In Islam no one can be imprisoned except in pursuance of justice.’ The words used here clearly indicate that justice means due process of law. What has been prohibited and condemned is that a man be arrested and imprisoned without proof of his guilt in an open court and without providing him an opportunity to defend himself against those charges. If the Government suspects that a particular individual has committed a crime or he is likely to commit an offense in the near future then they should give reasons of their suspicion before a court of law and the culprit or the suspect should be allowed to produce his defense in an open court so that the court may decide whether the suspicion against him is based on sound grounds or not and if there is good reason for suspicion, then he should be informed of how long he will be in preventive detention. This decision should be taken under all circumstances in an open court, so that the public may hear the charges brought by the Government, as well as the defense made by the accused and see that the due process of law is being applied to him and he is not being victimized.” Maududi, A, Human Rights in Islam (1977), pp.25-6. 2 Article 15.

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During criminal proceedings, however, there may be slight differences in judicial procedure for those who are and those who are not Muslims. The reason for this is that, because of the strong faith accorded to Islamic philosophy, an Islamic court may rely heavily on an oath taken from the accused, while this method is not reliable for those who are non-Muslim.3 Nevertheless, there should not be any practical differences between Muslims and non-Muslims under the territorial jurisdictions of Muslim states.4 Islamic law provides for many rights in the defence procedure. Under the Islamic criminal justice system and according to its theory of “protected interests,” both the plaintiff and the accused have the right to present evidence.5 They also each have the right to counsel during pre-trial interrogation, at trial, and (in case of conviction) at the execution of the sentence.

2. Assembly of Rights 2.1. Right to Counsel The right to counsel is one of the well-known principles in common law systems.6 This right has long been settled in court proceedings.7 Judges 3 M. Cherif Bassiouni, ‘Sources of Islamic Law and the Protection of Human Rights in the Islamic Criminal Justice System’ in Bassiouni (ed.) The Islamic Criminal Justice System (1982), p. 25. 4 This is, in fact, one of the basic principles of Islamic international human rights governing the protection of non-Muslims and essentially promotes the principle of equality between all men. The only difference between Muslims and non-Muslims from the point of view of Islam are philosophical and celestial theories, and these should not qualify any nation over another. This significant characteristic of Islam concerning full respect for non-Muslims is also stated by the Quran. Publications of Centre Culturel Islamique (No. 1), pp. 159 and 145. 5 Abd-el-Malek al-Saleh, Osman, ‘The Right of the Individual to Personal Security’ in Islam, in Bassiouni, the Islamic Criminal Justice System, pp. 55-90, p.85. 6 ‘In the light of this common law practice, it is evident that the constitutional provisions to the effect that a defendant should be ‘allowed’ counsel or should have a right ‘to be heard by himself and his counsel’, or that he might be heard by ‘either or both’, at his election, were intended to do away with the rules which denied representation, in whole or in part, by counsel in criminal prosecutions, but were not aimed to compel the state to provide counsel for a defendant.’ BeJs v. Brady, 316 U.S. 455, (1942). 7 In the Powell v. Alabama (287 U.S. 45, 1932) case the court stated that ‘In a capital case, where the defendant is unable to employ counsel, and is incapable

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and lawyers have therefore protected the significant value of the right of protection of the administration of justice, for instance in the United States.8 Although the right to counsel is ensured in both legal systems, i.e., adversarial and inquisitorial, they provide different levels of protection to offenders. Therefore, an assessment of the inquisitorial and adversarial systems suggests that the inquisitorial system pays more high-level attention to community interests, while the adversarial system values the accused individual’s autonomy. The right to counsel emanates from the Islamic theory of “protected interests.”9 These include and guarantee freedom of religion for all types of religious practitioners in the practice of their beliefs; the right of self preservation and self-protection; freedom of mind, including expression of thought, acquisition of education, and developing and increasing knowledge; the right to have a family through marriage; and the right to obtain property, including movable and immovable property and its preservation and disposition.10 Needless to say, a person has the right to obtain legal assistance for the protection of her/his rights. The Islamic criminal justice system penalizes violations of protected interests.11 This means that the principle of preservation has been given a broader definition in Islamic criminal jurisdiction.12 adequately of making his own defense because of ignorance, feeble-Ǧmindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.’ 8 “Reason and reflection require us to recognize that, in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish an administration to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences.” Gideon v. Wainwright, 372 U.S. 335 (1963). 9 Id. 10 Id. 11 Id. 12 For more clarification: “The preservation of the self according to Islamic jurists implies the preservation of the right to live with dignity. It includes both the preservation of physical well-being and certain moral aspects such as the maintenance of dignity and the freedom from humiliation. It also includes the freedom to work, freedom of conscience and freedom to live where one chooses. It assumes that in a civilized society, liberty is the cornerstone of human life, which in turn ensures the security of the individual. It is clear that the principle of preservation of self is enhanced by extension of the right to counsel to those

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In the Islamic criminal justice system, the importance of the principle of preservation appears especially when its norms are examined from the perspective of Islamic international criminal law, which basically has universal functions and purposes.13 This principle can particularly be compared with those principles of international human rights that are intended for the preservation of individual rights and may be found in certain specific legal instruments.14 accused of crimes, as it provides the accused with the means to establish innocence and to defend himself.” Id. Footnotes omitted. Consult also Mansour Rahmdel, ’The Right to Counsel in Iranian Criminal Justice System’, 60 Crime Law Soc Change (2013), pp.287–295. Available at https://link.springer.com/content/pdf/10. 1007%2Fs10611-013-9444-z.pdf (visited on 26 July 2017). 13 Majid Khadduri, (ed.), ‘Islam and the Modern Law of Nations,’ 50 American Journal of International Law (1956), pp. 558-572; Majid Khadduri, (ed.), (transl.) The Islamic Law of Nations: Shaybani’s Siyar (Transl. with an introduction, notes and, appendices, Baltimore, 1966); Majid Khadduri, (ed.), Law in the Middle East (1955); Majid Khadduri, (ed.), War and Peace in the Law of Islam (Baltimore, 1955); Majid Khadduri,, Major Middle Eastern Problems in International Law (1972); Majid Khadduri, ‘The Islamic Theory of International Relations and its Contemporary Relevance in Proctor’ in J. Harris (ed.), Islam and International Relations (New York, 1965). 14 The relevance of the principles of Islamic international criminal law governing the protection of individuals from unlawful and illegal acts by any type of administration, group, government, or state can also be examined in the light of a scholarly resolution on the principles of the Islamic criminal justice system of 1979. This resolution presents a number of principles of the Islamic theory and philosophy of justice with respect to the principles of international human rights instruments. According to it, “Any departure from (the below) ... principles would constitute a serious and grave violation of SharƯah Law, international human rights law, and the generally accepted principles of international law reflected in the constitutions and laws of most nations of the world.” The basic principles of Islamic human rights applicable under an Islamic criminal jurisdiction are inter alia: “(1) the right of freedom from arbitrary arrest, detention, torture, or physical annihilation; (2) the right to be presumed innocent until proven guilty by a fair and impartial tribunal in accordance with the Rule of Law; (5) the application of the Principle of Legality which calls for the right of the accused to be tried for crimes specified in the Quran, or other crimes whose clear and well-established meaning and content are determined by SharƯah Law (Islamic Law) or by a criminal code in conformity therewith; (4) the right to appear before an appropriate tribunal previously established by law; (5) the right to a public trial; (6) the right not to be compelled to testify against oneself; (7) the right to present evidence and to call witnesses in one’s defense; (8) the right to counsel of one’s own choosing; (9) the right to decision on the merits based upon legally admissible evidence; (10) the right to have the decision in the case rendered in public; (11) the right to benefit

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Strictly speaking, the above provisions are not innovations in the Islamic system of criminal jurisdiction. They have always existed in the main sources of Islamic law but have not always been appropriately exercised within the political structures of Islamic states and their constitutions í which have integrated some of the Islamic legal philosophies into their provisions but have exercised them negatively for political purposes.15

2.2. Specific Rights According to the provisions of the Statute of the ICC, the accused has certain specific rights that are considered important for her/his protection and for the prevention of any prejudice regarding her/his personal integrity.16 Thus, the Statute clearly points out the fact that, in the determination of any charge, the accused is entitled to a public and fair hearing. These two principles are also an integral part of Islamic criminal jurisdiction. According to the Quran, justice must be fair and should not violate the principles of fairness, rightfulness, and justice. For this basic

from the spirit of Mercy and the goals of rehabilitation and re-socialization in the consideration of the penalty to be imposed; and (12) the right to appeal.” For the complete text of the resolution, see Bassiouni, pp. 249-250. 15 See, generally, Franz Rosenthal, The Muslim Concept of Freedom Prior to the Nineteenth Century (1960); Khalifa Abdul Hakim, Fundamental Human Rights (1952); Muhammed Khalafalla Ahmad, ‘Islamic Law, Civilization and Human Rights,’ 12 Egyptian Review of International Law (1956); J.N.D. Anderson, Islamic Law in the Modern World (1959); Abdullah Goddin, Decision by Majority in Islamic Law (1975); J.N.D Anderson, Law Reform in the Muslim World (1976); N.J. Coulson, Islamic Surveys: A History of Islamic Law (1964); Mahmud Brevli, Islam and the Contemporary Faiths (1965); Abu'l A'la Mawdudi, Human Rights in Islam (1980); Paras Diwan, Muslim Law in Modern India (1977); D.B. Macdonald, Development of Muslim Theology, Jurisprudence, and Constitutional Theory (1905); Abdullahi An-Na`im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (1990); Abdullahi An-Na`im, ‘A modern Approach to Human Rights in Islam: Foundations and Implications for Africa,’ in Welch Claude and Ronald Meltzer (eds.), Human Rights and Development in Africa (1984). See also Haroon Khan Sharwani, Studies in Muslim Political Thought and Administration (1959); Ibrahim Shihata, ‘Islamic Law and the World Community,’ I, No.4 Harvard International Club Journal (1962); David Bonderman, ‘Modernization and Changing Perceptions of Islamic Law,’ 81 Harvard Law Review (1968)), pp.1169-95; Sami Aldeeb Abu Sahlieh’s, ‘Les Droits de l'homme et l'Islam,’ 89 Revue general de droit international public (1985), 625-716. 16 See also the Arab Charter on Human Rights, appendix.

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reason, the ICC and Islamic criminal justice emphasise the implementation of the following rights and rules: —The accused must be promptly informed of the content and the nature of the charges. —The reasons for the charges must be understood by the accused in her/his own language. —S/he should have the assistance, free of cost, of a competent interpreter in order to understand all legal procedures. —The accused should have sufficient time for the preparation of the defence with the assistance of counsel. —The counsel should be chosen in confidence. —If the accused does not have adequate financial support, the court should provide such a possibility. —There should not be any delay in the trial. —The accused has the definite right to examine the authenticity of witnesses. —S/he should have the right to present evidence. —The accused should not be forced to confess guilt. —The burden of proof should not be imposed on the accused. In other words, s/he should not be forced to prove or disprove the criminal acts.

2.3. Initial Rights There are certain initial rights of the accused that must be respected according to the provisions of Islamic criminal jurisdiction.17 These rights must also be regarded as the natural rights of the accused, and any violation of these rights may be recognised as being against the philosophy of fair and impartial justice. Most of these rights are also an integral part of the ICC Statute. Islamic criminal jurisdiction demands that:

17

The national criminal jurisdictions of many European states have also recognized certain rights for the accused that must be respected by the domestic authorities. For instance, consult Nordlöf Kerstin, Straffprocessuella Tvångsmedel: Gripande, Anhållande och Häktning (1987); Nordlöf Kerstin, Straffrättens Processer för Unga Lagöverträdare (1991); Nordlöf Kerstin, Unga Lagöverträdare i Social, Straff- och Processrätt (2005).

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—The accused should be treated in accordance with human rights standards.18 —The accused has the right to know the reason for her/his temporary imprisonment, detention, or arrest. —The accused has the right to remain silent. —There must be a lawful indictment charging the accused with a crime. —Any investigation affecting her/his privacy must be based on lawful permission. —During legal proceedings, the inviolability of the accused’s personal position (social, cultural, economic, political) must be secured. —The accused is innocent until proven otherwise. —The accused should not be held together with individuals already pronounced guilty for their crimes. —The administration of justice should facilitate the understanding of juridical expressions and charges against the accused. —The accused should not be mentally ill. —If the accused is a non-Muslim, s/he should give consent to jurisdiction under Islamic law.19 Like the conclusions in this section and the above-mentioned sections, the Arab Charter on Human Rights refers to the inalienable rights of the accused person and the obligations of states to respect these rights. According to the Charter: Everyone charged with a criminal offence shall be presumed innocent until proved guilty by a final judgment rendered according to law and, in the course of the investigation and trial, he shall enjoy the following minimum guarantees: 1. The right to be informed promptly, in detail and in a language which he understands, of the charges against him. 2. The right to have adequate time and facilities for the preparation of his defence and to be allowed to communicate with his family. 3. The right to be tried in his presence before an ordinary court and to defend himself in person or through a lawyer of his own choosing with whom he can communicate freely and confidentially.

18 “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Article 20 (1) Arab Charter. 19 The Arab Charter in Article 20(2) deals with this matter. Accordingly, “Persons in pre-trial detention shall be separated from convicted persons and shall be treated in a manner consistent with their status as un-convicted persons.”

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4. The right to the free assistance of a lawyer who will defend him if he cannot defend himself or if the interests of justice so require, and the right to the free assistance of an interpreter if he cannot understand or does not speak the language used in court. 5. The right to examine or have his lawyer examine the prosecution witnesses and to on defence according to the conditions applied to the prosecution witnesses. 6. The right not to be compelled to testify against himself or to confess guilt. 7. The right, if convicted of the crime, to file an appeal in accordance with the law before a higher tribunal. 8. The right to respect for his security of person and his privacy in all circumstances.20

We find that none of the provisions in the above contradict the provisions of the Statute of the ICC. In fact, the ICC demands justice, fairness, and transparency, and these ideals are also an integral part of criminalisation of Islamic legal theory if they are respected in the practice of Islamic allies and opponents.

2.4. Right to Certain Facilities The right to certain facilities encourages criminal justice to be very careful not to injure, deliberately or accidentally, the position of the accused under any criminal jurisdiction. It also denotes the necessary implementation of human rights law regarding all individuals, regardless of their positions. The right to certain facilities is basically protected in both legal systems, i.e., the system of the ICC and the Islamic criminal jurisdiction referred to in this volume. They are inter alia: —The right to appropriate shelter —The right to be detained in a place that is neither too hot nor too cold —The right not to be detained in buildings dangerous to her/his health —The right to shower and keep clean —The right to regular cleaning of her/his room —The right to food and drink during the day —The right to practice personal beliefs or a religion —Prohibition of unfair and unethical interruptions in facilities in order to harm the accused. —Facilities should not encourage recidivism or stimulate undesirable actions. 20

Article 16.

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2.5. Rights under Procedures Due to the provisions of the ICC and Islamic criminal jurisdiction, the accused has certain rights under procedures regarded as being of primary importance for the rendering of fair and appropriate justice. These rights are an integral part of human rights law under both legal systems, i.e., Islamic criminal jurisdiction and the International Criminal Court. Therefore, they may, in many respects, overlap one another. However, it should be recalled that the effectiveness of the objection procedure largely depends on the initiative of the accused for her/his natural rights, natural law, and legal rights, all of which are an integral part of one another. The accused should be permitted to see the indictment, should have the right to counsel, should express her/his own understanding of the case, and should have the possibility to question whether the facts proven have documentary validity, whether the judge(s) maintain(s) her/his objectivity, whether the accusation was properly formulated based on authentic facts, whether the allegations contained in the given case are true, and whether the court respects the dignity of humankind as a whole. All these aspects are an integral part of the jurisprudence of Islamic criminal law. They include, for example: —The accused has the right to a lawyer or to personally defend her/himself. —Evidence against the accused should not be hidden from her/his lawyer. —The attorney of the accused should have sufficient time to investigate or refute evidence. —The accused may examine the witnesses and victims through her/his lawyer. —The accused should not be forced to admit guilt. —S/he may voluntarily answer questions. —The accused should not be obliged to tell the truth. —The accused may accept a guilty plea. S/he may later change the plea. —Any confession given under force, threat, coercion, or otherwise is invalid. This means that the principle of jus ex injuria non oritur (a right does not arise from injustice) has to be respected. —A confession taken by deceit is invalid, even though no open use of force, coercion, or threat was employed. —The accused should not be tortured. —The accused should be tried without undue delay.

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—The accused has a fundamental right to protest against indiscriminate procedures or decisions. —The accused may appeal the decision of the court. —The accused may reject the ex post facto law. —The accused has the right to petitions and pleas.

3. Lawful Indictment A significant right of the accused is to know that the accusation is based on a lawful indictment. This implies the fact that there is an official prosecutor who has the legal power to initiate criminal proceedings before a court. The indictment may therefore aim to charge a person with such offences as crimes against humanity, war crimes, and genocide. Yet, it is a wellestablished principle in Islamic criminal jurisdiction that circumstantial evidence favourable to the accused should not be ignored in the indictment, with the aim of establishing her/his innocence.21 Similarly, in the system of international criminal law, the accusation has to be based on clear evidence and not on false information. Therefore, under the ICC, the prosecutor may initiate investigations proprio motu on the basis of information on crimes under the Statute of the Court. In fact, it is the duty of the prosecutor to be sure of the seriousness of the information received.22 Within both legal systems, the prosecutor is also responsible for dropping the indictment, partly or completely, if s/he discovers that the counts on which a person has been accused are not authentic and based on false information. Thus, there must be a reasonable basis to proceed with an investigation. Yet, under Islamic criminal jurisdiction, it is a great sin if a prosecutor accuses a person of crimes that were not committed by her/him and the prosecutor knows about this matter. Therefore, the person drafting an indictment must be aware of the consequence of irrational, immoral, or illegal accusations leading to an indictment. According to the principal sources of Islamic law, fair and true justice appears to be the first principle of jurisdiction.23

21

Bassiouni, p. 20. Article 15 (2) of the Statute. 23 Dutton, Yasin, ‘Review of John Burton, The Sources of Islamic Law: Islamic Theories of Abrogation’ in Dutton, Yasin, The Origins of Islamic Law: The Quran, the Muwatta’ and Madinian ‘Amal (London: Curzon Press, 1999). 22

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4. Rights of Women The perspective of the rights of women have always been controversial in Islamic societies. As is rightly asserted, ‘Islamic law is not a systematic code, but a living and growing organism.’24 Despite this fact, ‘there is amongst its different schools a large measure of agreement, because the starting point and the basic principles are identical.’25 Similarly, in preIslamic Arabia or in the Bedouin states, women had to struggle for their rights, and they were never granted. The problem of women’s rights has been modified to a certain extent, but is still lacking in a considerable number of respects.26 Contemporary practice in the Islamic nations tries to recognise women’s rights. Consequently, because of their specific position, women enjoy certain special rights within the new provisions of Islamic criminal justice. The purpose of these rights is not to reduce the social value of women compared with men, but to emphasise their high social value in the administration of criminal justice. These rights are also particularly granted to prevent any form of mistreatment and sexual abuse of their physical integrity.27 These rights can also easily be found within the provisions of international criminal justice but are not granted on the basis of Islamic law, even though they have the same aim. They are the manifestation of the rules of the majority of the states in the world. Some of the rights of women under Islamic law are, inter alia, the following, the legal validity of which also cannot be disregarded under any system of international criminal justice or the ICC: —Only a woman should search another woman’s body; violation of this right is against the Shariah. —When being searched and during proceedings, a woman’s body should not be defiled.

24

Asaf A. A. Fyzee, Outlines of Muhammadan Law (Delhi: Oxford University Press, 4th ed, 1978), p.1. 25 Id. 26 In pre-Islamic period “Woman was never a free agent in marriage. It was the father or other male guardian who gave her in marriage, and her consent was of no moment.” Id. p.10. In a number of Islamic societies, this right of father is still indirectly kept. 27 However, the rights of women have mostly been violated by political systems or unwise national legislations.

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—When being searched and during proceedings, a woman should not be sexually insulted. —Use of any term or vocabulary that makes sexual allusions is prohibited. —Revealing the accused in a manner that may cause insult to her religious or cultural beliefs is absolutely forbidden. —A woman should only be kept in custody with a woman. —A pregnant woman has the legal right to secure the mental and physical health of her unborn child. —A woman with a dependent child has the legal right to feed the baby in accordance with tradition, as long as the child needs feeding. The right is also granted when the woman has been convicted. We find that all above-mentioned rights are in conformity with the system of international criminal justice or the ICC. As a whole, none of these rights violates the European rules governing the rights of women. This in turn means that there are major similarities between the rights, wishes, and protection of integrity and sovereignty of women and protection of the same gender in another system or culture.

CHAPTER FOURTEEN REQUISITE CORPUS OF INTERNATIONAL METHODS OF CRIMINAL JURISDICTION

1. Accusation as a Principle We will see in this chapter whether the international criminal procedure applied by the international criminal tribunals or the ICC are “adversarial,” “inquisitorial,” and mixed/adquisitorial as well as how the accusatorial system is used, which is actually obligatory in their procedures. For this reason, we have to examine the roles of the tribunals and the ICC, under which we also have to take into consideration the case law of the tribunals and the court. We shall see that the laws of the courts have been developed from adversarial, inquisitorial, and adquisitorial situations in all these criminal procedures. This can be seen in various amendments of Rules of Procedure and Evidence of the courts. We will encounter the situation in which it is not of essential importance which law is applied. The purpose is to conclude that all these rules of criminal procedure are also comparable and adaptable within a truly Islamic system. This is a system that requires rethinking by both Muslim and non-Muslim states or nations. The issue is whether the roles of the international criminal courts are functional and whether they are against the concept of an Islamic international criminal court. Therefore, it is crucial to find out whether the courts are implementing fair trials and whether they violate the concept of Islamic law provided directly or indirectly in the civil and criminal codes of different Islamic nations.1 1

The Islamic systems of Iran, Saudi Arabia, Sudan, Afghanistan, Turkey and many others do not respect certain rules of international standard and violate even the regulations of modern Islamic law. For instance, they violate the provisions of the International Covenant on Civil and Political Rights (1976). In particular, they violate Articles 14 and 15 of the Covenant. Article 15 clearly speaks about certain prohibitions. It reads that: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a

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It may therefore be necessary to look at the active role of the judge and her/his function during the judicial procedures in finding the truth and examining witnesses and evidence. Generally, the courts/tribunals have used adquisitorial criminal procedures and accusatorial methods as their core method of achieving justice. In other words, it is not important whether inquisitorial, adversarial, mixed, or Islamic provisions implement the principles of justice but whether they have achieved their real intention i.e., to find the truth and apply appropriate sanctions without unnecessarily accusing persons of something they have not been engaged in. A lack of response to a general accusation or allegation by someone is viewed as an indication of innocence in the proceedings of both legal systems and, as a general rule, a false accusation can be brought to the court by the victim or by another person on the alleged victim’s behalf. A glance at the long practice of the ICTY proves that the tribunal has been rather successful in its intention and its adquisitorial application of inquisitorial and adversarial criminal procedures. It has employed the system of accusation by different methods and equally tried to use the principle of accusation in the case of all criminals. One can examine the success of this approach by examining the jurisdiction and judgment of the court. This also holds true in the case of the ICTR, which is more or less modelled on the ICTY, with the reservation that both courts have been borrowing from each other’s methods of jurisdiction. One of the problems of inquisitorial criminal procedure is its very harsh historical evolution under the authority of the Church and the implementation of torture, force, and many other barbarous methods of extracting confessions. The term “inquisitorial” is normally reserved for a disciplinary form of jurisdiction, which was prevalent in the 15th century during the reign of Pope Innocent VIII and continued to expand its boundaries. This criminal procedure was exclusively written, was secret, and was finally protested against because of the development of (the needs of) society, and it slowly modified itself into an adversarial method. These changes, as I have mentioned earlier, became reality in the United Kingdom. A considerable number of Islamic judges applied similar use of force, torture, and various illegal methods throughout the centuries. heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

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Although torture was forbidden, it could be used as complementary assistance to the system.

2. Raison d'être of Accusation The inquisitorial criminal procedure in the sense of the “inquisition” and harsh procedures were already abolished at the time of the French Revolution (1789) and also the German reform of criminal proceedings (der reformierte deutsche Strafprozess) in 1848. Because of these basic modifications, present-day “inquisitorial” proceedings are organised into particular duties and responsibilities during the investigation or pre-trial phase.2 The prosecutor and the examining judge (called juge d’instruction) carry them out. A trial judge conducts the actual trial or court proceedings. This is also followed in the basic structure of the ICC today; the judges and prosecutors are responsible before the Court. Moreover, it is a fact that most cases brought before international criminal courts are submitted by the United Nations or state entities. Likewise, in a national criminal jurisdiction, it is no longer relevant whether the system is inquisitorial or adversarial. In the pre-trial process, all cases are initiated and directed by the police and prosecution under the power of the state. Equally, the principle of accusation has to be followed by all legal systems. This is regardless of whether the system is inquisitorial, adversarial, mixed, or of an Islamic jurisdiction. It also means that the content of processus per accusationem is not necessarily correct, because the adversarial or inquisitorial and adquisitorial or hybrid jurisdictions are all based on an accusatorial orientation. In modern-day criminal procedures, the question is not the type of system of criminal procedure employed but whether it arrives at the right answer, namely the truth. In the adversarial method, the search for the truth comes under the control of the conflicting parties, and they may

2

According to legal terms, accusation implies officially charging someone with an offence. This may be either by an indictment issued by a grand jury or a prosecuting attorney may determine whether a person should be charged with the commission of a crime. The term accusation in lay terms means any claim of wrongdoing, misconduct or misleading by another person. A false accusation may cause serious damage to the victim. It is assumed that a society has the legal obligation to punish all criminals for violations of its laws. The rule which should guide us, however, is not that of implementing what the legislation orders us to do, but what humanity, authentic reason, and justice say we ought to do. Thus, the raison d'être of accusation must be logical and not immoral.

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therefore hide the truth í the situation is like a match between two teams, and the court is where they play their games. The “inquisitorial” model does not permit such play, and responsibility for finding the truth rests with the state agencies in charge of criminal prosecution. The system can be more precise and less misled. The system is, in fact, guided by a judge and not by the parties. This means much less manipulation of the case and much more clear evidence in the finding of the truth. The entire inquisitorial system follows a specific framework, which has to be fulfilled; the system is in other words hierarchical. The adversarial situation is not simply the presentation of a particular framework that has to be exercised but the presentation of fully different material or evidence in order to build a new framework within the criminal procedure at the parties’ will. Yet, these criminal procedures in the adversarial system are not identical. The procedures in the British system (English, Irish, and Scottish procedures) differ. This is the same in the case of the criminal procedures in civil law systems. They do not follow the same procedure. This also holds true for the Islamic legal systems. Islamic criminal procedure also differs from country to country. For example, the Egyptian, Saudi Arabian, Malaysian, and Iranian criminal procedures are quite different from one another. Even the adversarial system or common criminal procedure in the Anglo-American legal system is different from its original source of British criminal procedure. In addition, many of the countries that use the adversarial or inquisitorial model refer to each other’s legal procedures using wrong interpretations.

3. Model of Jurisdiction Although Islamic criminal law is based on both adversarial and inquisitorial models, there are serious misinterpretations of its basic legislation by both Muslim and non-Muslim nations. This misinterpretation is more serious when referring to the criminal procedure of Islamic states. For common law countries, the civil legal system most often referred to is the French legal system. However, although the French legal system is a good example, it is not necessarily the best one. One can hardly identify which legal system is better than the other. It is, in fact, cultural identity that satisfies the legal system or vice versa. Thus, Germany, Sweden, Denmark, Norway, and many other countries in the European Union may be good or bad examples of inquisitorial criminal models and still they may seem good within their own social cultures. The

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European courts have not been silent about criticising the criminal procedure of EU member states. Conflicts have arisen as to which model of jurisdiction should be applied. For instance, there was a protest by a French delegation against its own government that “a strong reaction was necessary in order to avoid a pure common law system” in international criminal jurisdiction. An examination of different cases and review of the content of the criminal procedure of the International Criminal Court, however, prove that there is a strong connection between and combination of the inquisitorial and adversarial legal procedures. It is actually a fact that the international criminal justice system cannot distance itself from these models of jurisdiction, and therefore international courts have chosen a mixed/adquisitorial/hybrid method of jurisdiction.3 The influence of the Civil Code can be simply understood from the constitutions of the courts. Although this influence is probable and tangible, it is very doubtful that the courts can be free from the effect of common law systems. Moreover, common law lawyers mainly drafted the law of the ad hoc tribunals, and the Draft Statute of the International Law Commission emphasises the adversarial procedure. Similarly, the development of international criminal courts such as the Chamber of the ICTY clearly indicated in 1994 that the criminal procedure before the tribunal constituted a “unique amalgam of common and civil law features” and “does not strictly follow the procedure of civil law or common law ...”4 For one reason or another, however, the practice of the ad hoc international criminal tribunals mostly followed the adversarial method at the beginning.5 This has been modified, however, and the tribunals have a 3

Yet, according to some realistic opinions, justice may also be obtained by the adquisitorial system. Kafayat Motilewa Quadri, Hunud Abia Kadaouf, Mohammad Naqib Ishan Jan, Mohd. Iqbal AbdulWahab and Haniff Ahama, ‘Adquisitorial: The Mixing of Two Legal Systems’ 3 (1) International Journal of Humanities and Management Sciences (2015), pp.31-36. Here, the term ‘adquisitorial’ is used as synonym to a mixed jurisdiction. Accordingly, ‘Adquisitorial’ (new word) refers to the Fusion between the Adversarial and Inquisitorial Roles of a judge and how it is operated in the International Criminal Court).’ Id. p.35. 4 Prosecutor v. Tadic, Decision on Defence Motion on Hearsay, 5 August 1996 (IT94-1-T), para. 14, reprinted in Klip/Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol. I, 1999, at 195 (196). 5 See Prosecutor v. Tadic, Decision on Prosecution Motion for Production of Defence Witness Statements, 27 November 1996 (IT-94-1-T), Separate opinion of Judge Stephen (“procedure of the International Tribunal is essentially adversarial in character ... ”), Judge Vohra concurring. See also Antonio Cassese, ‘First Annual Report of the ICTY’, Yearbook (1994), at 99; Richard May and Marieke Wierda,

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sui generis structure, therefore presenting the adquisitorial model of jurisdiction.6

4. Reforming Accusatorial Models The procedural classification of international procedure concerns the investigation, pre-trial, and trial phases. In all these phases, the initiation of a case requires a prosecutor. In other words, the prosecutor is responsible for submission of a case to the court. This power of the prosecutor is clearly stated in the legal documents of the relevant court. For example, in the ICTY rule of procedure, the prosecutor decides whether there is a prima facie case requiring further investigation; if so, s/he must act. S/he may carry out mere investigative measures, i.e., measures which do not infringe on the rights of the individual during the procedure. S/he must take all necessary preliminary decisions for the protection of such rights, summon and question suspects, victims, and witnesses as well as “collect” any other necessary evidence. This is also true in the case of the ICC Prosecutor who needs judicial authorization, however, for coercive measures, e.g., the arrest of a suspect. Here, one of the differences between the ICTY and the ICC relates to the capacity and time for the control and supervision of the prosecutor. The prosecutor of the ICTY formally decides independently whether to ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, 37 Columbia Journal of Transnational (1999), at 757: “essentially adversarial and common law principles apply” (with regard to the presentation of evidence), also at 759. 6 Similarly Prosecutor v. Delalic et al, Decision on the Motion on Presentation of Evidence by the Accused, Esad Landzo 1 May 1997 (IT-96-21-T), para 15: “amalgam of both common law or civilian elements, so as to render it sui generis”. According to some opinions, on the one hand, the “inquisitorial system allows the criminal and civil proceedings to take place together. This is an attribute worthy of emulation by adversarial systems as it eases the burden on the accused persons and the victims by putting the criminal and civil trial in one proceeding. It may also be means of reducing the backlog of cases rotting in the adversarial courts. An attribute of the inquisitorial that is unpalatable is the bane of secret trials, which may serve as a form of bondage to an accused person even before he or she is found guilty.’ However, on the other hand, ‘a combination of the best practices of the criminal procedure of both systems (adquisitorial) will be an ideal and effective system that will aim at sustainable justice.” Kafayat Motilewa Quadri, Hunud Abia Kadaouf, Mohammad Naqib Ishan Jan, Mohd. Iqbal AbdulWahab and Haniff Ahama, ‘Adquisitorial: The Mixing of Two Legal Systems’ 3 (1) International Journal of Humanities and Management Sciences (2015), p.35.

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continue to pursue an indictment. In the case of the ICC, however, the UN Security Council may suspend an investigation for a renewable period of 12 months. Still, the Pre-Trial Chamber may intervene in the work of the prosecutor when the prosecutor decides whether there is a “reasonable basis” to initiate proceedings, i.e., long before the indictment is prepared. Regardless of whether a case in the ICC or any international criminal court is under the control of the Security Council, one of the problems here is that the position of the prosecutor in the ICC does not have common characteristics of either inquisitorial or adversarial models. The concept of pre-trial itself means control over the indictment of the prosecutor, which does not exist by definition in the civil law or common law systems. In other words, in both systems, the prosecutor has a wide range of freedoms with respect to the rights of the accused to open an investigation concerning a case. In international criminal courts, however, particularly in the ICC, the prosecutor is the legal instrument of the Security Council or big power politics. The whole intention of the legal system in implementing the “accusatorial” principle is a reform of the inquisitorial model in order to make the prosecution authority responsible for the investigation of a criminal case. On the one hand, one cannot deny the fact that the whole idea of pre-trial control or supervision of the prosecutor through a kind of intermediate procedure and a pre-trial chamber signifies a clear inquisitorial rule. On the other hand, it is evident that any judicial intervention during the investigation, apart from the issuing of arrest warrants, can put at risk the independence of the prosecutor. This was carried out by big power politics and, as a result, the ICC became a wholly dependent international organisation, despite the fact that it practically has an independent international legal personality. One can draw the conclusion that although the function of the prosecutor should not be controlled by any judicial organ in the inquisitorial and adversarial systems, the independent position of the ICC prosecutor became subject to judicial control by those very states that have a permanent seat in the Security Council of the United Nations. We should remember that the prosecutors for the ICTY and the ICTR are elected by the Security Council, while the chief prosecutor for the Special Sierra Leonean Court is elected by the Secretary-General and a deputy prosecutor for the same court is elected by the Sierra Leonean authorities, in consultation with the United Nations.

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5. The Power of the Accusatorial Verdict Both systems of jurisdiction, i.e., adversarial and inquisitorial, rely heavily on the accusatorial process. This means that the accusation must be proven in the process of jurisdiction. In both systems, a person who is accused of a crime cannot be considered guilty as long as the court has not delivered its verdict or judgment. Still, the process of adjudication in the adversarial system is sometimes called inquisitorial. In fact, we may use the term inquisitorial as a synonym for adversarial, too. Both methods, i.e., inquisitorial and adversarial, have the finding of truth as the basic intention of their method. In addition, both have different sanctions for the punishment of the condemned person. The consequence is that none of the systems has a process that condemns innocence and then applies punitive sanctions. However, mistakes may occur in both legal systems. The differences between the two legal systems are therefore the way in which they investigate the given case in order to find the truth by means of different approaches to the criminality. One has to admit that it is very difficult to draw a clear line between the adversarial and the inquisitorial systems. The tolerability rules of the adversarial system sometimes permit a judge to take on the role of an enquirer rather than an arbiter. Moreover, the inquisitorial judicial system is sometimes employed more broadly than the adversarial judicial system. Still, many countries, such as Germany, Sweden, and Italy use both legal systems, although their laws are originally based on the civil legal system. The intention of both the adversarial and inquisitorial systems is to find facts and truth and thereafter apply appropriate sanctions. The adversarial system seeks the truth by treating both sides as equal to each other in the hope that they will produce authentic evidence. If a legal system is based on an inquisitorial or adversarial approach to the given case, this does not necessarily mean that court procedures in the inquisitorial system are the same in all countries. Most inquisitorial systems also offer the system of an appeals court. The whole case may be reviewed by a higher court. Therefore, the defendant, or respondent, may be asked to testify in civil trials. In the final stage of the trial or the proceedings, both systems rely on the element of accusation, which constitutes one of the most significant elements of jurisdiction. Thus, the real intention of international criminal law is not necessarily the application of adversarial or inquisitorial methods, but the way in which we find the truth, accuse, confess, condemn, and apply the necessary sanctions.

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6. Inquisitorial or Adversarial One cannot deny the fact that both systems of jurisdiction, i.e., inquisitorial and adversarial, have been historically cruel in their methods of finding the truth. Notoriously cruel institutions were established in order to implement torture with the hope of finding the truth. In particular, one may note the alleged heretics during the 16th and subsequent centuries in Catholic countries, e.g., Spain. Brutal torture was implemented in order to extort confessions. In England and Continental Europe, confessions extracted through torture were a very accepted phenomenon for secular as well as religious crimes. Similar conclusions can be drawn about Islamic beliefs. It was not until almost the beginning of 20th century that the adversarial system of procedure slowly began to accept that the presumption of innocence is a right of the accused. Still, this right was not exercised in the colonies, protectorates, or half-independent countries, and torture was implemented in the judicial machinery of African states, which were controlled by the British colonial power by one means or another. The statement by the Supreme Court Justice of the United States succinctly describes the inquisitorial or adversarial systems. He simply states that “if he were innocent, he would prefer to be tried by a civil law court, but…if he were guilty, he would prefer to be tried by a common law court.”7 This statement supports the conclusion that the common law procedure is less likely to discover the truth of a case than the civil law procedure. Whilst this statement may be correct to some extent, mistreatment or misunderstanding of a case by the judges of the inquisitorial method occurs, and judgments have been delivered in both Western and nonWestern countries in which the accused has been innocent and suffered long imprisonment. These examples can even be seen in a very advanced democratic society like Sweden. A considerable number of condemned persons, whose cases had been closed for years, have been proven innocent after many technical examinations, judicial investigations, and the presentation of new witnesses. The features of inquisitorial and adversarial systems have, however, undergone great modifications. The inquisitorial systems now implement extensive pre-trial investigations and interrogations. The decisions of the Civil Courts are appealable in most instances. The inquisitorial system 7

U.S. Supreme Court Justice Warren Burger, 1968; Wayne Petherick, Brent E. Turvey, Claire E. Ferguson, Forensic Criminology (Amsterdam: Elsevier Science, 2009).

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greatly follows adversarial methods, too. Countries applying inquisitorial systems are France, Germany, China, and even, in some respects, Japan. The inquisitorial systems may vary from one to the other, however, in the case of criminal procedure. Examples are Germany and France, e.g., the use of a prosecutor in Germany and an examining magistrate in France. Another example is Italy, which has a civil law system but has greatly modified its pre-trial procedure since 1988, known as the “Perry Mason process.” The system is much closer to common law procedures.

7. Presumption of Innocence The presumption of innocence constitutes one of the significant core principles of national, regional, and international criminal justice. In Latin, it is called ei incumbit probatio qui dicit, non qui negat. This means that the burden of proof is on the person who declares, not on the one who denies. As long as guilt has not been proven, an accused person is innocent and should be treated neutrally in view of accusations or condemnation. S/he must be treated as equally as a free person under the proceedings of jurisdiction. Her/his restriction of freedom does not mean that s/he is guilty or that s/he should be treated as condemned. The consequence is that a judge and even the jury are responsible for not violating the principle of the presumption of innocence during the meetings of the courts. The task of the meetings should not therefore be confused with the final decision of the court in both legal systems. In other words, the accused does not have to prove innocence, the fact of which is presumed. The function of an accuser who presents a case through a prosecutor is to convince a court of the participation in or the commission of the crime by the accused. This is what is called “beyond any reasonable doubt.” Under both legal systems, if a judge and jury have any doubt regarding the guilt of the accused, they are obliged to deliver a verdict or judgment of not guilty. Although the theory of the presumption of innocence has not been explicitly supported in civil code laws, most civil law systems subsequently wrote the theory into their criminal legal systems by adopting external or international obligations. For example, most European countries have ratified the European Convention on Human Rights, which guarantees the right to a fair trial and the presumption of innocence. Thus, these principles have become part of their national laws. The Islamic legal system, however, which is somewhat based on adversarial and inquisitorial methods or an adquisitorial system of jurisdiction has, since its

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establishment and with certain reservations, adopted the concept of the presumption of innocence as an integral part of its criminal jurisdiction.8

8. Different Criminal Procedures One of the serious problems of the inquisitorial system is that, although you may be considered innocent, you are still under serious suspicion, which makes your situation very difficult and impractical. However, under the common law or adversarial method, it is the established right of the accused to demand to be considered practically and procedurally innocent. We know, however, that both systems of procedure theoretically argue the presumption of innocence. Nevertheless, the widespread pre-trial investigation, which is part of civil law systems, creates the understanding that defendants are most likely to be guilty of the commission of the crimes. Despite of all these considerations, certain features of criminal procedure in civil law countries give this procedure a distinctive position. They are the modification of law by legislation or the adoption of certain new rules. In other words, procedural rules can be modified in the interest of criminal justice. Maintaining and respecting the rights of individuals constitutes one of the significant elements of the common law and civil law systems. Yet, one may interject that there are different positions between inquisitorial and adversarial procedural criminal law. These are: i) The inquisitorial system focuses on the idea that a vigilant investigation will decide factual guilt. However, the adversarial system highlights the theory that complex rules of evidence produce a substantive outcome. This will guarantee the defendant a fair trial. ii) The adversarial system limits the involvement of the judiciary in the investigatory and adjudicatory process. However, a judge in the inquisitorial system is directly involved in the trial. iii) The defendant in the inquisitorial system is expected be cooperative and answer the questions of investigators. However, this may not be favourable. On the contrary, the defendant in the adversarial system is not expected to be cooperative. The prosecutor assumes that the defendant will stay silent. iv) The judge in the adversarial system is solely a referee. The attorneys put forth their respective argumentation, and then a jury 8

See section on Islamic legal system.

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decides which version is closer to reality. However, the court in an inquisitorial system has the function of an investigator and ultimately decides on the presented case. The judge examines the case, witnesses, evidence, and argumentation presented by the attorneys. Here, the attorneys assist in the interpretation of the facts.

9. Compensation Both legal systems, i.e., inquisitorial and adversarial, have methods of compensation, which is also sometimes the manifestation of punishment. In the common law system, the concept of compensation is mostly imposed in the civil sector rather than the criminal one. The state prosecutes and the courts mete out punishment for the offence in question through their final decision. The decision can also be against the machinery of the state itself. In civil courts, however, the basic assumption is that a victim of wrongful conduct by another person or an entity should be reimbursed for the wrongdoing. The compensation is most often money that is paid for damages. It may also be reestablishment of a right by other means, based on a court order, such as rehabilitating a farm that has been damaged by the lawbreaker. According to the common law system, any concept of compensation should be sufficient to re-establish the right to the position before the damages occurred. It is a fact, however, that certain damages cannot be restored, and it is here that the court states the precise amount that has to be given to the victim. What the court sets out has to recover all of the damage and its possible consequences. Compensation of damages in itself is not solely for recovery of the wrongdoing. It may possibly have two sides. These are the concepts of punishment and compensation, which are sometimes called exemplary damages aiming at the public, so that such wrongful conduct cannot solely be recovered by compensation but also by punishment. For instance, when deliberating damages for defamation, a judge may request compensatory damages to restore, as much as possible, the position of the victim to its former state; but the judge may, from time to time, even order punitive damages against the defendant. The extent of punishment and compensation is normally decided by judges with due regard to a considerable number of factors, including the extent of the harm, the condition of the victim, and the position of the offender. The judge may also take into consideration the extent to which

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the offender has realised her/his wrongful conduct. Further reasoning for the amount of compensation may be decisions relating to similar cases. It is true, however, that the degree of punishment and limits of compensation are often set down in legislation. The judge cannot extend the length of imprisonment if the offender is charged solely for one offence. But, the judge may increase punishment if the offender has committed several crimes. He may therefore order the sentences be served consecutively. One begins when the other ends. The tradition is that sentences in either adversarial or inquisitorial systems are enforced concurrently. This means executing the sentences at the same time. The Islamic system follows a similar routine on a case-by-case basis.

10. Responsibility of the Public All public services in both legal regimes are under strong responsibility not to give false information to the public or publish information suggesting that the accused is condemned. They should maintain their neutrality concerning the case and not publish any information convincing the public that the accused committed the given offences. Any such publication calls upon the responsibility of the author and also the publishing entity, and they may be found guilty of contempt. Any information that influences the jury or the judge in the accusation of the accused is also not permitted and calls upon the responsibility of those who spread the information. The jury and judge also must not be influenced by the method of reopening previous convictions. One must be therefore be very careful when publishing or broadcasting the case under investigation in order not to make an innocent person guilty or vice versa. Accusations should always be supported by authentic evidence. Moreover, any accusation must be reasonable to a certain degree. One cannot accuse someone of matters that may be completely impossible. An accusation, the purpose of which is personal interest or to dishonour the accused person, is a serious violation of a person’s rights and is prosecutable, e.g., for defamation. The plaintiff in a defamation case against a person is not responsible for proving the contrary. It is the responsibility of the accuser to submit evidence.

CHAPTER FIFTEEN ADVOCATING PUNISHMENTS IN AN ISLAMIC INTERNATIONAL CRIMINAL COURT

1. Absentis A Code The principles of Islamic public international law and Islamic international criminal law originally developed from the consequences of the historic international relations between Islamic and non-Islamic nations. They represent some of the most central values of the Islamic system and its function in the development of certain rules of conduct. They can be found in the rules of international criminal law and in the Statute of the International Criminal Court (ICC). Islamic law therefore encourages non-impunity and purity in justice. “What destroyed the nations preceding you, was that if a noble amongst them stole, they would forgive him, and if a poor person amongst them stole, they would inflict God’s Legal punishment on him. By God, if Fatima, the daughter of Muhammad stole, I would cut off her hand.” One of the chief purposes of the system of international criminal law is to bring the perpetrators of international crimes before an appropriate court of law and mete out an acceptable punishment for conduct constituting international crimes. While this intention is significant, the system has barely identified all its methods, levels, and degrees of punishment. This is one of the more serious problems in the implementation of the system of international criminal law, and the system is indeed incomplete for this reason.1 The system possesses a large number of international criminal 1

This lack of method, degree, and level of punishment in the system of international criminal law was also considered when preparing the Charter of the International Military Tribunal in Nuremberg. The enforcement of the system of international criminal law on the perpetrators of international crimes experienced two major difficulties during the Second World War. The first difficulty was that the United States, the United Kingdom, the Soviet Union, and France were faced with the non-existence of an international criminal court to enforce the provisions of the system of international criminal law. The second difficulty was that there

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conventions for the recognition of criminality, but no direct method of punishment can be found within the system as it currently is. All that can be said is that the system of international criminal law largely depends on the provisions of national criminal courts, which are not equivalent and whose methods of implementation and provisions vary greatly.2 One of the main reasons for the non-existence of a decisive method, degree, and level of punishment is the lack of consistent regulations between various international criminal tribunals. On the one hand, the ICTY3 and the ICTR apply certain punishments to guilty individuals. On the other hand, they have still not followed or established special acceptable rules concerning the methods, levels, and degrees of punishment. Furthermore, both tribunals were incapable of creating a clear line of punishment for violators of international criminal law. The show tribunal in Iraq concerning the trial of Saddam Hussein also proved this fact.4 It was a fake court.5 This was because the case of Saddam clearly demonstrated the insufficiency and inadequacy of the rules of punishment between ad hoc international criminal tribunals and a monopolized court.6 The Statute of the ICC is presumably considered a was no method, degree, and level for the punishment of the major war criminals due to the lack of an international criminal court. Both difficulties were passed over by the implementation of a retroactive law and the military strength of the strong political powers. Consequently, difficulties were not fundamentally examined and resolved. 2 Take, for example, the death penalty; Swedish criminal legislation abolished its enforcement long ago, while the death penalty is still one of the methods of punishment of criminals in China and the United States. The Chinese authorities even apply the punishment to political prisoners. 3 In February 1995, the Security Council of the United Nations decided “that an international criminal tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.” 4 Farhad Malekian, Documents on the Principles of International Human Rights (2007); Farhad Malekian, Monopolization of International Criminal Law in the United Nations (Stockholm: Almqvist & Wiksell International, 1995); See also Konflikt mellan rättigheter, En moralisk och etisk betraktelse på beslutsfattandet om internationella humanitära insatser; exemplet Libyen 2011. Available at http://pacem.no/2016/konflikt-mellan-rattigheter/ (Visited on 28 August 2017). 5 Gerhard Werle and Florian Jessberger, Principles of international Criminal Law (Oxford university Press, 1014), pp.142-3. 6 Farhad Malekian, Emasculating the Philosophy of International Criminal Justice in the Iraqi Special Tribunal, 58(5) Cornell International Law Journal (2005); Farhad Malekian, Prohibition Governing Child Soldiers Constituting an Integral

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complete code for the time being. But it does not yet have a complete code of punishment. One of the chief differences to other systems is that Islamic criminal principles are domestically presented in the context of religious power, which makes their application very complex and often irrational in specific situations. If necessary, appropriate international rules and higher moral obligations ought to take precedence over any religious code.

2. Adaptability Early Islamic criminal justice, like the law of most old civilizations, led to harsh penalties such as the severing of arms or hands, hanging, and stoning. These are penalties that should not be imposed in our time and have to be treated as serious violations of Islamic law, international human rights law, and the foundation of natural law as a whole. Regrettably, violations of Islamic criminal justice have been frequent, and cruel penalties have been applied in several Islamic states or societies. Altogether, Shariah is not a fixed and permanent statute but is capable of adjusting to the modern principles of criminal justice. For example, the provisions of the Statute of the International Criminal Court (ICC) can be found within the system of Islamic criminal justice. That is why it admits the exercise of the principle of complementarity by the ICC. From a juridical point of view, the Islamic concept of criminal law provides methods, degrees, and levels of punishment. In other words, in Islamic international criminal law, jurisdiction and punishment constitute an integral part of the law, which suggests that there is no need to adopt certain rules and regulations for the enforcement of its provisions. There are a number of punishments enumerated in the main source of Islamic law (the Quran) against the perpetrators of crimes, and most of these methods may be seriously criticized when compared with the provisions of the modern system of international human rights law. Nevertheless, the Islamic concept of criminal law is very supple, and the methods, degrees, and levels of punishment can adapt themselves to the needs of modern times.7 They may easily bend without deforming or Part of Jus Cogens and Obligatio Erga Omnes, XVII World Congress of the International Association of Youth and Family Judges and Magistrates, Belfast, Northern Ireland, 27 August – 2 September (2006). 7 Some of the punishments in Islamic criminal law have been very severe and therefore their direct enforcement without modification and re-consideration is surely contrary to the methods of punishment in most criminal systems of the world. At the same time, one should not brush aside the fact that methods of punishment have also

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breaching their principal functions. Many of the harsh and cruel punishments that were carried out throughout the historical evolution of Islamic law no longer have any binding legal force, although they are still applied by some fanatical regimes in the world.8 The methods, degrees, and levels of punishment in Islamic international criminal law may not be the same as in the system of international criminal law. Yet, the methods, degrees, and levels of punishment in the system of international criminal law could easily fit under Islamic international criminal law or an Islamic international criminal court and be adapted into Islamic law as long as they fulfil its purposes and functions with their modern characteristics.9 Unfortunately, Muslim states, by and large, are neither ready to make fundamental changes in the distribution of wealth nor are they motivated to strengthen the religious cause by such a change, as they are obsessed with the evil desire to keep personal luxuries and autocratic authority intact. However, the fact is that, according to the normative principles of His Law and Faith, a change in policy of this nature would automatically solve many of the present-day problems.10

3. Inalienable Principles Despite the fact that human civilisation has been developing rapidly from various points of view, the philosophy of punishment under the present been very harsh and complicated within the criminal systems of many states in Europe, Asia, Africa, and the United States, even though they did not apply Islamic criminal law within their systems. Thus, one may conclude that, historically, the criminal law of many systems in the world applied very severe punishments, which are seriously condemned under the modern philosophy of criminal law. 8 The Islamic criminal law recognizes three different classifications of punishment. These are fixed penalties, retribution, and discretionary punishment as decided by an Islamic court. Fixed penalties are generally applicable to seven categories of crimes. These are adultery, false accusation of unlawful intercourse, highway robbery, theft, rebellion against the Islamic authorities, drinking alcohol, and apostasy. The fixed penalty may be compared with punishments for international crimes of genocide, which is seriously condemned under the provisions of international criminal law and the commission of which demands long imprisonment. 9 This means that Islamic nations should adapt their laws to the methods of punishment that are applied by the international criminal courts and therefore avoid any punishment that is not in accordance with the modern philosophy of human rights norms. See further part III. 10 Mohad Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), p. 54.

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national and international criminal systems is still similar to that of its primitive period. One cannot, however, deny the fact that the science of criminology has helped criminal justice and contributed to abolishing or modifying the old philosophy of punishment.11 Nevertheless, most states worldwide still use punishment for different reasons, and the application of harsh punishments has not yet been abolished.12 The philosophy of punishment in Islamic international criminal law, like the system of international criminal law, has undergone much criticism and many evaluations by many writers. In particular, the severe punishments under the provisions of the former have been strongly criticised in the international community, specifically the application of the death penalty, stoning, and amputation. For example, the most notable international confrontation on capital punishment between some Islamic states and some other states took place during the 1998 Rome Diplomatic Conference. The position of Islamic states is described as follows: There, Islamic states allied with countries from the Commonwealth Caribbean to fight the exclusion of the death penalty from the proposed Rome Statute of the International Criminal Court. In the years of work leading up to the Conference, the issue of capital punishment had been relatively unimportant, although occasionally one or another Islamic state would record its dissent with respect to the emerging trend. For example, in 1996, citing the Islamic legal code of the Shari’ah, the representative of Egypt said that the death penalty should be retained as an option, perhaps where there were aggravating circumstances. There was frequent reference to Islamic law during the debates at the Rome Conference, and many states implied that countries from "the North" were attempting to impose their own values in criminal justice. A specific proposal was tabled by Arab and Islamic countries that would have allowed the international court to impose capital punishment. Nevertheless, there was never more than a small minority of states favourable to including the death penalty in the Rome Statute. Even many states that enthusiastically and unashamedly use capital punishment in their domestic systems, such as the United States of 11

See also the European Convention on Human Rights and its seven Protocols: criminal offence, compensation, fair and public hearing, freedom of thought and religion, innocent until proved guilty, minimum rights when charged with a criminal offence, prohibition of cruel, inhuman and degrading treatment or punishment, security of person, social protection, prohibition of the death penalty. 12 Some Islamic states even repeatedly use the capital punishment of hanging not just as a method of punishment of criminals, but also as the most prevailing method of punishment of accused persons. This is especially notorious in the case of political prisoners, demonstrators against the government, and young juveniles under the military power of the Iranian regime.

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Regardless of the fact that the new interpretation of Islamic criminal justice under the Cairo Declaration on Human Rights in Islam prohibits all these old methods of punishment, their application is not rare. In particular, the capital punishment of hanging is common in Iran and is used as a political tool to stop radical as well as political movements.14 A similar conclusion can be drawn for Afghanistan, Bahrain, Bengalis Morocco, Nigeria, Pakistan, Saudi Arabia, Somalia, Syria, and Sudan. Islamic law in national or international spheres usually tackles justice by means of direct negotiation with the parties or in the proceedings of a court.15 It deals with the question of justice in different ways when disputes arise among people or nations concerning civil or criminal procedures. It also has similar attitudes concerning questions relating to international criminal jurisdiction. The presentation of evidence by the plaintiff constitutes one of the basic reasons for the continuation of a case in Islamic criminal law. This is because evidence supports her/his claim. However, there are two alternatives when the evidence, for one reason or another, fails or is rejected. In this case, the defendant is requested to either admit to the wrongful conduct or deny the entire theory. A confession is required but, 13 N. J. Coulson, ‘The State and the Individual in Islamic Law’, Vol. 6, No. the International and Comparative Law Quarterly (1957), pp.49-60, at 54. Available at https://www.jstor.org/stable/pdf/755895.pdf visited 22 January 2017; Consult also William A. Schabas, Islam and the Death Penalty, 9 William Marry Bill of Rights journal (2000), p.223- 236, at 229-230. Available at http://scholarship.law.wm.edu/ wmborj/vol9/iss1/13 (Visited on 2 May 2017). 14 “Islam professes the basic principle that everyone has the right to life. However, this principle, stated in the Koran, allows for an exception. Killing is only allowed when a court of law demands it: "Do not kill a Soul which Allah has made sacred except through the due process of law." Therefore, this exception authorizes the administration of capital punishment when Islamic law dictates. Intriguingly, the Islamic law position would seem to be the same as that found in the Fifth.” William A. Schabas, Islam and the Death Penalty, 9 William Marry Bill of Rights journal (2000), p.230-231. Available at http://scholarship.law.wm.edu/wmborj/vol9 /iss1/13 (Visited on 2 May 2017). 15 Mashood A Baderin,. "Effective Legal Representation in 'SharƯah' Courts as a Means of Addressing Human Rights Concerns in the Islamic Criminal Justice System of Muslim States." 11 Yearbook of Islamic and Middle Eastern Law (2006), pp.135-167.

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as we will see, this confession must be free of all types of intrigue and the imposition of force. Punishment has mainly a protective purpose. A criminal court, which partly or entirely functions according to the rules of Islam, must fully follow the following inalienable principles of punishment: i) The principle of nullum crimen, nulla poena sine lege certa, the application of clear definitions of crimes and punishment. ii) The principle of nullum crimen, nulla poena sine lege scripta, meaning that the court must exercise a considerable degree of caution in the application of punishment for violations of unwritten or customary law. iii) The principle of nullum crimen, nulla poena sine lege stricta, declaring no crime and no punishment without strict law. This implies the prohibition of inhumane sanctions. iv) The principle of conformity, implying that punishment should solely be sanctioned against a person who had the opportunity to follow the law. v) The principle of humanisation, indicating that the application of penalties must not be seen as the only course of justice if it is possible to employ penalties other than diyah (blood money) or apologies. vi) The principle of equivalence, emphasising that the degree of punishment must be the same for similar criminal conduct.16

4. Rules of Confession Although the principles of the Islamic law of nations offer a considerable number of provisions governing the protection of individuals’ values, the Islamic original theory has been seriously violated throughout the civilisation of mankind. From a philosophical perspective, Islamic law had a democratic intention, but this purpose was buried from the beginning by 16

Farhad Malekian, ‘Islamic Law Justice Systems’ in the Encyclopaedia of Criminology & Criminal Justice (contribution after invitation, Jay S. Albanese, editor), (United States: Wiley-Blackwell (5 volumes, 2013), vol.III vol, pp.12201225. It is the complete understanding of the above reasons and the serious violations of the system of international human rights law by certain Islamic leaders that encourage the international legal and political community, together with the Islamic nations, to establish an Islamic international criminal court. This would be a cooperation between Western and non-Western nations, as was also the case in the creation of other international criminal bodies, including the ICC.

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its allies and opponents. The law has been misinterpreted and used for personal interests by different regimes of Islamic nations. This is also true in the case of contemporary Muslim nations worldwide who are monopolized by religious authorities for different purposes. Some present very fanatical ideas and others directly violate the norms of international human rights law that are for the benefit of all human beings. In other words, the original idea of Islam did not permit aggression, inequality, and injustice but the practices of many Islamic governments, like the practices of many Western governments, do. “In all positive law is hidden the element of power and the element of interest. Law is not the same as power, nor is it the same as interest, but it gives expression to the former power-relation. Law has the inclination to serve primarily the interests of the powerful. ‘European’ international law, the traditional law of nations, makes no exception to this rule. It served the interest of prosperous nations.”17 As we have seen elsewhere, in the Islamic judicial legal system, the confession or the admission of a crime evidently plays a significant role, but it should be based on certain conditions of the Islamic legal system that are also identical with international legal systems or the system of the International Criminal Court. Other sources of proof, such as testimony, oath, and circumstantial evidence may also be accepted, depending on their juridical validity and the nature of the case under investigation. As a general rule of Islamic law, admission is primarily employed in civil cases and confession in criminal cases. Both ways of presenting evidence are authorised in Islam and are therefore recognised as a valid source of proof by the sources of the law. The validity of proof, however, depends on several factors. Admission or confession is only valid if: i) The relevant person is an adult person according to the law. ii) S/he is sane. iii) Its nature is explicit. iv) It is expressed by free consent. v) No coercion was used to gain the admission or confession. vi) A single confession or admission is usually sufficient but not concerning all crimes criminal cases. For the crime of adultery, the authorities may require confession several times but for certain other crimes, like Hudud and Qisas offences, the court may rely on a single confession. 17 B.V.A. Röling, International Law in an Expanded World (Amsterdam: Djambatan,1960), p.15.

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Islamic law, however, permits withdrawal of a confession in all Hudud and Qisas cases. The only exception is made in cases of theft, where withdrawal is permissible, but responsibility may be established for the damage incurred on the part of other parties. According to Islamic theory, a confession obtained by means of fear, threat, misunderstanding, weakness, and intoxication is null and void. Although Islamic law encourages the total consonance of the provisions of Islamic sources, they should not be misunderstood, and the vocabulary of final justice should be given priority over other provisional matters. The functions of most provisions are enlightenment, forgiveness, and humanity.

5. Forgiveness Forgiveness constitutes the first and the main principle of criminal justice in Islamic law which is missing not only in the Western concept of criminal law but even in the practice of most Islamic national criminal jurisdictions worldwide. Far from being unique to Islam, it is extremely offensive to every good thing the Quran prescribes if a case under Islamic criminal law fails to take the principle of forgiveness into a serious consideration. As to crimes and penalties, the Islamic criminal law is specific solely in terms of five categories of crimes; otherwise, the judge has no restrictions. A judge is free to decide cases involving other crimes as s/he sees fit in terms of the development of case law or practical consequences. The five categories of crimes, as I may have mentioned elsewhere, are murder, theft, highway robbery, zina (sex without legal permission), and false accusation of adultery. This means that the law concerning any remaining crimes authorises the legal official of the relevant community to decide and determine the case in the light of the general principles of Shariah and the prevailing conditions of the given society. While the Quran also lays down the broad principles of penal law, it also tries to reduce the concept of harsh punishment and encourage forgiveness between individuals and authorities. It says: ‘And the retribution for an evil act is an evil one like it, but whoever pardons and makes reconciliation í his reward is [due] from God. Indeed, He does not like wrongdoers.’18 In addition, he (God) clearly advises the justice department of the community to be just and not apply non-equivalent penalties. Punishment in Islamic criminal law should be such that ‘And if you punish [an enemy, O believers], punish with an equivalent of that with 18

Q, 42:40.

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which you were harmed. But if you are patient í it is better for those who are patient.’19 All this encourages the exercise of the principle of forgiveness. An essential basic philosophy behind the law of punishment has been to encourage human rights and human values and decrease their violations. According to one writer, a regional human rights court should punish violators of Islamic human rights provisions under the legal authority of the Organization of Islamic Cooperation.20 This organization wishes to achieve four main goals.21 These are the peaceful resolution of disputes between member states, collective security, the formulation of joint foreign policies between member states, and the promotion of technical cooperation between them.22 The proposed regional enforcement organ can thus be in the form of a regional Islamic Court of Mazâlim jurisdiction to adjudicate on allegations of human rights violations against any of the OIC Member States, and also to interpret the scope of the rights guaranteed under the present OIC Cairo Declaration on Human Rights in Islam, and any subsequent binding Covenant, and also rights guaranteed under the Shariah in general. The Court would be composed of highly qualified Islamic law jurists not only learned in Islamic jurisprudence, but also con-versant with international human rights law and jurisprudence. That would provide a definite and unified Islamic parameter for determining the scope of human rights within the application of Islamic law by Muslim States.23

The goals are based on the fact that pure Islamic law encourages equality and non-violence, which could not be achieved at the time of the revelation of Islamic law when human rights had no social value. In this respect, Islamic criminal justice, for the purpose of the implementation of its norms, historically resorted to the severe punishment of criminals in order to decrease various violations of its norms and increase respect for itself. Otherwise, forgiveness should be regarded as the key intention of Islamic criminal law. Similarly, the system of international criminal 19

Q,16:126. Mashood A.B Baderin, International Human Rights and Islamic Law (Oxford: Oxford University Press, 2003), pp.230-231. 21 Mohammad El Sayed Selim (ed.) The Organization of the Islamic Conference in a Changing World (Egypt: Faculty of Economics and Political Science Cairo University, 1994), p.5. 22 The Organization was also taught to create ‘some sort of an Islamic block’ in order to achieve its objectives. Id. p.18. 23 Baderin, note 20, p.230. 20

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justice, for the maintenance of human rights norms, empowers state parties to international conventions to criminalize certain human rights violations, i.e., apartheid, genocide, and trafficking in human beings as well as to apply appropriate punishments against the perpetrators of those crimes.

6. Qualified Punishment The historical period under which Islamic law was presented was not united and required the temporary imposition of punishment or punishment which satisfied the given circumstances of the time. The Arab nations at the time were very primitive, and burying their daughters alive was part of their culture. The rules of law would not, therefore, have been so severe for the population had they been introduced without punishment.24 A modern evaluation of the law, however, reveals that punishment encouraged its own gradual modifications. Some of the general reasons underlining the philosophy of punishment within Islamic criminal justice, many of which may also be found in international criminal justice, are discussed in the following.

6.1. Retributive Character Punishment also has a retributive nature. This means vengeance for the wrongful conduct of the convicted person. This characteristic also entered into the legislation of international criminal law. The terms most frequently used under this legal regime are reprisal, retaliation, and revenge. All of them have also been used in the literature of Islamic law.25 The system of international criminal law, however, has permitted retaliation and reprisal as the way in which apply the purposes of 24 Taha Jabir Al `Alwani, The Ethics of Disagreement in Islam.(Herndon, VA: The International Institute of Islamic Thought, 1993). 25 Islamic law has, however, encouraged the principle of equality in order to minimize violations and revenge between individuals. It says: “O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grants any reasonable demand, and compensates him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.” The Q, 2:178. Accordingly, “for you there is security of life in the law of equality, O man of understanding, so that you may guard yourselves against evil.” The Q, 2: 179 Although the above provisions permit revenge, their intention is to reduce it by redressing the aggravated party the same right, yet through compensation and the understanding of the ill nature of the criminal behaviour.

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punishment. States have been permitted to resort to reprisal under customary international criminal law, not only as a punishment for the wrongdoer but also to do justice to the legal rights of the victim. It should, however, be pointed out that appropriate Islamic principles encourage forgiveness and aim to reduce punishment by all means. In general, forgiveness as love or compassion is part of the Islamic philosophy of punishment. In other words, the pure philosophy of love for forgiveness has replaced death or punishment as the horizon of Islamic law.

6.2. Preventive Validity The systems of international criminal law and Islamic international criminal law have more or less struggled to prevent certain types of international criminally wrongful conduct. The philosophy of punishment under Islamic criminal justice may therefore be of a preventive nature. Punishment is supposed to prevent future commission of a criminal act. This is also found in international criminal justice. In fact, most international criminal conventions aim at preventing the occurrence of certain acts.

6.3. Protective Validity Another reason for punishment is its protective validity. The philosophy behind punishment is to protect others from unlawful or illegal acts. The philosophy of protective validity has been employed by both legal systems and has been interpreted as one of the most essential reasons for the development of penal law. The protective validity of punishment is normally stated in the provisions of international criminal conventions. This policy can also be understood from the provisions of the ICC. The Court is required to protect the international, legal, and political community with its judgments and permission to apply certain punishments. Protective validity also refers to the high validity and respect for the de lege lata principle.

6.4. Elimination of Evil Punishment may also have the purpose of eliminating certain types of criminal behaviour. It aims to criminalise certain conduct entirely that had been legitimated in the earlier practice of nations or states, e.g., slavery. The philosophy of elimination has entered both legal systems and has

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succeeded in the elimination or abolition of certain acts, although contemporary practice is evidence of the contrary. For instance, the elimination of slavery has been one of the dreams of both international legal systems, but slavery under trafficking constitutes one of the most persistent international offences. Furthermore, the outbreak of many wars since the end of the Nuremberg Tribunals is clear evidence that the elimination of evil as one of the purposes of punishment has not been achieved, and many individuals have repeatedly violated the system of international criminal justice under the legal personalities of states.

6.5. Rehabilitation Justifications for punishment include rehabilitation, deterrence, retribution, restitution, and incapacitation. However, the most humane reason for punishment is rehabilitation of the offender. According to this objective, punishment intends to rehabilitate the offender and return her/him to normal social relations. According to this view, the purpose is not to permanently identify the offender as a criminal but to treat her/him in order to increase her/his understanding of social and international relations between human beings. The theory of the rehabilitation of criminals in prisons, however, has not been very successful and has sometimes increased criminality. However, certain new methods have been developed, however, to decrease the borderline of criminality and increase awareness and knowledge on the part of the offender in combination with human rights law. The rehabilitation method is not very strong in some Islamic nations, however, and has even lost its practical application, e.g., in Iran, Iraq, and Afghanistan.

6.6. Restoration The philosophy of punishment has also been restoration, i.e., to restore to the rightful owner any movable and immovable stolen property. This is called the restorative character of punishment. The international criminal justice system has also made use of this philosophy. With the implementation of punishment, both legal systems aim to emphasise that stolen property does not create the rights to the goods. The idea here is to minimize violations of the rights of other persons by stealing. The term “restoration” emphasises the re-establishment of the rights of others through payment of a certain amount of money. The theory

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of restoration is also exercised by the ICTY and the ICTR. The function of both international tribunals has been to restore peace to the victims before the jurisdiction of the tribunals in order to restore their inalienable rights.

6.7. Reformation of Norms The reformation of norms means putting an end to specific behaviour that has been practised for various reasons, e.g., slavery, institutions similar to slavery, and trafficking in women and children. Even though the purposes of elimination and reformation may overlap, the intention of the former is to combat specific actions and the aim of the latter is to increase the value of elimination. In any event, in the final stage of implementation, reformation and elimination have a similar policy of modifying certain norms. The theory of reformation can be found in both legal systems. Examples are slavery, inferior treatment of women, sexual abuse of women, and the use of children in armed forces. For instance, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment26 has strictly prohibited the application of torture for any judicial or political reason. The provisions of the Convention overlap with the purposes of both legal systems, Western and non-Western. Article 1 of the convention reads as follows: 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Definitely, the intention of the Convention is the prohibition of torture and legislative reform to prevent violations of natural law and the natural rights of individuals. This is why another article calls upon the conventional obligations of each State Party. They ‘shall ensure that all 26

From 10 December 1984.

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acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.’27 This reform has not been appropriately achieved, however, and implementation of torture has not been completely abolished. In particular, one may refer to the application of torture by the United States in the Abu Ghraib prison and the Guantanamo Bay detention camp. In both cases, perpetrators have gone without punishment. Many other reforms also have not been completely successful, such as the abolition of capital punishment. Yet others have a hortatory nature rather than being implementation-oriented, such as human rights conventions. For instance, violations of human rights provisions are a frequent occurrence in most countries in the world.28

6.8. Repressive Function Another philosophy of punishment has been its repressive function. According to this objective, punishment aims to teach individuals to place the blame on their own behaviour. The intention is to foster self-control and encourage the individual to recognise the intention of the law. This is one of the legal philosophies of Islamic law, which recognises the individual’s responsibility for understanding the truth and distinguishing a right from a wrong. It helps the process of achieving respect for human rights.

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Article 4. Article 5 of the Convention on Torture takes even more juridical view and says that “1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.” It is a fact that the vast majority of Muslim countries have signed and ratified the United Nations Convention Against Torture and this means that they agree with the valuable provisions of the relevant convention and are obliged to formulate certain rules into their jurisdiction for the prevention of torture. However, several of them apply torture wherever they see necessary. 28

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The repressive purpose of punishment is also to increase the moral capacity of individuals to appreciate the consequences of criminally wrongful behaviour. The repressive mechanism may be imposed for the purpose of teaching the criminal consequences of wrongful conduct in a social context as well as its effect on the victim. The statutes of the ICC, the ICTY, and the ICTR do not refer to any repressive approaches, but the readings of different documents as well as the judgments of the courts reflect this fact.

6.9. Apology Both systems of criminal justice also base the reason for punishment on apology. This is the admission of guilt. It means that the response to a crime is obtained by means of propitiation or appeasement. The position paves the way for conciliation. The intention is to calm down the criminal and society in view of the heinous behaviour that has occurred. It is therefore a pacific settlement of the crime. Accordingly, the perpetrators of the crimes must understand the consequences of their criminal behaviour and voluntarily change their criminal conduct and intentions. Both systems of international criminal law work towards this end.

6.10. Compensation Punishment may also have the purpose of reparation, compensation, reimbursement, return, and reward. This multi-purpose goal traditionally constitutes one of the chief intentions in both legal systems. In addition, the implementation of punishment is still considered one of the most significant functions of jurisdiction over criminals and of restoring the effect of wrongful behaviour. Compensation as punishment may also have a restitutive character. According to J. Wills: The guilty intent is not necessarily that of intending the very act or thing done and prohibited by common or statute law, but it must at least be the intention to do something wrong. That intention may belong to one or other of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or common law, or both elements of intention may co-exist with respect to the same deed. There are many things prohibited by no statute –fornication or seduction, for instance – which nevertheless no one would hesitate to call

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wrong; and the intention to do an act wrong in this sense at least must as a general rule exist before the act done can be considered a crime. 29

The nature of compensation may vary from case to case, but its substance and intent is the same. The request for compensation is not only claimed in proceedings of criminal justice but is also requested by one state from another when damages have been caused to nationals or the interests of the requesting state.

6.11. Amnesty The philosophy of punishment may also include granting amnesty to criminals who admit guilt and express their repentance. Thus, by the term ‘amnesty,’ we do not mean that the criminal conduct is forgotten and forgiven, but the punishment is not implemented. Both systems of criminal justice have used this alternative. In fact, under special conditions and circumstances, tempering justice with mercy is one of the chief purposes of Islamic justice in the understanding of guilt and moving forward to positive results. Amnesty cannot be granted if the victims of the crimes have not given their consent. For instance, amnesty could not be granted to the perpetrators of apartheid in South Africa without their confession of guilt and without the consent of the victims. A confession of guilt may, however, in certain circumstances be a strong reason for amnesty, forgiveness, or mercy. This is foreseen in the Islamic main source.30 The Quran encourages forgiveness and justice by all means, even where there is a right to retaliation. It says that ‘in the Torah We made mandatory for the Jews these rules of retaliation: Capital punishment for the murder of a person; an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and a just compensation for a wound. If the perpetrator is forgiven by the affected party, this will be a compensation of his crime. Those who do not judge according to what God has revealed are unjust.’31 The principle of amnesty is thus one of the most significant principles of Islamic law. Accordingly, Islamic criminal law has established the principle of the right to forgiveness, the principle of the right to pardon, the principle of the right to life, and the principle of hope to be free from applicable punishment. These principles have been interpreted from the 29

(1899) 25 Q.B.D. 168 quoted in Finbarr McAuley and J. Pail McCutcheon, Criminal Liability (Round Hall Sweet and Maxwell, 2000), p. 278. 30 Q, 2:178, 3:134. 31 Q, 5:45.

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original language haqq a-afw an al-uqûbah. Almost all crimes, even crimes of hudud, are forgivable if certain conditions are worked out or certain reasons for forgiveness are recognised by the authorities.32 The second source of Islamic law, Sunnah, also strongly recommends the institution of pardon. Islamic law tries by all means to prevent bloodshed and particularly to enlighten humankind that retaliation, Qisas, or similar actions, such as revenge, do not contribute to the substance of justice, which has been damaged.

6.12. Reinstitution of Civil Rights The philosophy of punishment in Islamic criminal justice is not just to implement certain penalties on the guilty party but also to reinstitute the civil rights of the condemned person. The idea of the reinstitution of civil rights is based on the fact that a criminally wrongful conduct may be a reason for the criminal to lose her/his civil rights. Consequently, a person who has been punished for her/his criminal act is free of any charge and restrictions thereafter. The system of international criminal justice also has more or less similar rules regarding a person who has been punished for her/his international criminally wrongful act. The reinstitution of civil rights also implies the enforcement of the principles of human rights regarding the accused and convicted person.

6.13. Methods of Punishment Historically, there are a number of methods of punishment under Islamic international criminal law that are not equivalent to the new methods of contemporary punishment. Because of the development of the law and its adaptation to the modern philosophy of punishment, these methods have been abolished and are no longer valid under Islamic national and international criminal law. They face the problem of interpretation and create controversy in the application of practical aspects of the law. These punishments include inter alia crucifixion, amputation of body parts, capital punishment or the death penalty, stoning, and torture. Punishments in Islamic criminal justice have not only been the implementation of cruel and harsh penalties, but could also include, for certain crimes, the search for mercy, forgiveness, and pardon by the offender. This can serve to decrease the severity of the penalty and 32

Consult Mashood A. Baderin, International Human Rights and Islamic Law (New York, NY: Oxford University Press, 2005), p.73.

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increase the practical recognition of guilt. The perpetrator of the crime may, through acts of reconciliation, enhance her/his understanding of the effect of the crime on the victims. This method is still employed by many Islamic nations for the purpose of reducing the effect of criminal actions and increasing empathy. Similar methods are also used under the system of international criminal law when the real nature of criminality is impossible to investigate. The method is particularly employed in the case of government or state crime when legal and political authorities are involved in the commission of criminal behaviour. Clear examples are the National Commission on the Disappearances of Persons, Argentina, 1985; the United Nations Truth Commission in El Salvador, 1992-1995; the Historical Clarification Commission, Guatemala, 1994; the Truth and Reconciliation Commission, Chile, 1994; the Truth and Reconciliation Commission, Sierra Leone, 1999; the National Commission on Political Imprisonment and Torture, Chile, 2004-2005; South Korea’s Truth and Reconciliation Commission, 2005; and the Commission for Reception, Truth and Reconciliation in East Timor, 2002. The most well-known of these types of commissions is the Truth and Reconciliation Commission concerning the apartheid regime in South Africa. The commission had a politico-legal character and was a type of court assembled in South Africa. Its function was to hear the witnesses, victims, and perpetrators of apartheid. The criminals provided testimonies and requested amnesty in civil and criminal investigations. Similar conclusions can be drawn about the National Unity and Reconciliation Commission in Rwanda, where up to one million people perished and as many as 250,000 women were raped during the 1994 genocide.

6.14. Mitigation of Punishment The intention of a crime may be deliberate or mistaken. The concept of fault is based on intention (dolus) and negligence (culpa). Intention indicates the preparation of deliberate criminal conduct, while negligence denotes the preparation of intended but accidental criminal conduct because of lack of knowledge. This should not necessarily be understood as permission not to use reasonable care and skill and to escape criminal prosecution for the commission of serious crimes such as homicide, torture, apartheid, mass killing, genocide, or any other crimes against humanity. These concepts are also included in Islamic international criminal law.

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An Islamic international criminal court emanating from Islamic criminal law would mitigate punishment in particular situations, which are also listed in the Statute of the International Criminal Court. In other words, there are not serious discrepancies between the provisions of Article 31 of the Statute and the Islamic perception of justice. The article on grounds for excluding criminal responsibility provides the following: 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: (a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or

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(ii) Constituted by other circumstances beyond that person's control. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence. The assumption is that every person has a duty not to act negligently. Reasons that may mitigate or dismiss the concept of criminality of the accused include, like in the continental or the common law systems, insanity, unconsciousness, amnesia, coercion, necessity, infancy, and proportional self-defence. Still, Article 32 of the Statute implies mistake of fact or mistake of law. It reads that: 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.

In addition, a person has strict liability for losses and damages resulting from his omission or conduct, regardless of proof of culpability. In fact, restorative justice has long been exercised. It helps the victim by way of apology, working without payment in her/his lands, and full restoration to the victim’s satisfaction. Both legal systems also use the method of imprisonment. A convicted person may be sentenced to imprisonment, depending on the gravity of the crime. The terms of imprisonment may also depend on the financial ability of the convicted person to pay damages. In some cases, criminals may be sentenced to exile under Islamic criminal justice, which is definitely contrary to the basic principles of human rights law.

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6.15. Abolition of Severe Penalties Due to the growing development of international criminal law, there is a strong tendency in Islamic justice and international criminal justice to abolish severe penalties.33 While the process of abolition has been very slow and controversial, many nations around the world have succeeded in abolishing certain punishments such as torture and capital punishment. However, there is no denying that both punishments continue to be applied by many Islamic nations/states. Even the Arab Charter on Human Rights permits their implementation. According to the Charter, a “sentence of death may be imposed only for the most serious crimes in accordance with the laws in force at the time of the commission of the crime and pursuant to a final judgment rendered by a competent court. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.”34 The application of the death penalty may even be permitted against persons who are under eighteen years of age. Accordingly, a “sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime.”35 Capital punishment is also imposed on women but under special conditions.36 Some Islamic jurists may still believe that Islamic provisions should be strictly construed. Yet others maintain that it is not permitted to abolish some of the verses of the Quran. Yet another group of interpreters may hold that certain verses of Islamic law have already been abolished. Finally, one group may argue that certain verses of the Quran should be interpreted in accordance with the requirements of modern times. However, according to the majority of Islamic jurists, the reality is that the ‘repeal of verses is as such meaningless and unnecessary because precepts change with the change of times places, and circumstances.’37 This is because ‘when an operative order is applied to meet a pressing need and if the said situation or need exists nor more, then, logic and 33

Farhad Malekian, Principles of Islamic International Criminal Law (Brill, 2011); Schabas William A, The Abolition of the Death Penalty in International Law (2002 and 2005). 34 Article 6. 35 Article 7 (1). 36 According to Article 7 (2) “The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery; in all cases, the best interests of the infant shall be the primary consideration.” 37 Mohad Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), p.13.

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prudence38 demand that such an order be substituted by a fresh operative order appropriate in the changed conditions. Such substitutive operative order shall be either similar or better than the pre-existing one for the establishment of policy or expediency.’39 All this means that we have to adapt the given Islamic codes to our modern understanding of international human rights norms. Similarly, on the one hand, torture has been abolished and recognised as a violation of the principles of international human rights law but, on the other hand, it has been inflicted by many nations, including the permanent members of the United Nations (e.g., China, Russia, the United Kingdom, and the United States). Recent examples are, in particular, the torture of Irish prisoners by the British, the torture of Iraqi prisoners in the Abu Ghraib prison by the United States, and the complicity of British commanders in the torture of Guantanamo Bay prisoners by the authorities of the United States. Water boarding has been one of the most notorious methods of torture reported in recent years. Regarding the amputation of body parts, many of the provisions of international human rights law and even the content of the Cairo Declaration on Human Rights in Islam prohibit such punishment. Furthermore, since Islamic states have ratified most international conventions concerning human rights law as well as the Statute of the ICC, they are bound by the provisions of the conventions due to the principle of pacta sunt servanda. The respect for this principle constitutes one of the most significant obligations of the Islamic states, and its legal merit should not be violated. Equally, Islamic nations may prosecute their own citizens or citizens of other nations for violations of the Statute of the ICC. They are under international obligation to respect international provisions and not to violate their legal frameworks. This means inter alia that a) the application of torture is not permitted, b) capital punishment or the death penalty should not be allowed, c) the amputation of body parts is against the basic structure of the human legal codex, d) Islamic criminal justice should, wherever necessary, adapt itself to international rules, regulations, principles, and norms, including conventional and customary ones. Furthermore, as correctly stated in protest against capital punishment, “the power over human life is the sole prerogative of Him a who gave it.

38

The realization that certain laws are not good enough in the body of Islamic law has led to new arguments, suggestions, and new legislations. 39 Mohad Tagi Amini note 37.

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Human laws, therefore, are in rebellion against this prerogative when they transmit it to human hands.”40 All of the above considerations imply the fact that the integration of new international methods of punishment should be the leading line of criminal justice wherever international criminal law is going to be applied under any legal system.

7. Excluding Penalties against Women One of the greatest problems of Islamic criminal jurisprudence has been the inequality of the sexes.41 Men were given a very high standing in the administration of justice whereas women have not enjoyed the same position. The problem was not one of the nature of human beings, but the interpretation of the Quran. As a whole, this source did not mean to create injustice but, because of the historical background of Arab nations and their underdeveloped civilisation, the law was presented in a manner so as to teach (stage by stage) the Arab nations the real value of mankind according to the Prophet í who belonged to the very same human race. The task was therefore not easy. The same is true for changing the attitude of the population to respect the equality of gender, i.e., women and men. Furthermore, the laws of other nations at that time did not respect equality between men and women either. Unfortunately, women have had an inferior position to men in almost all civilized and uncivilized societies. Casting stones at women, female infanticide, cutting sexual organs, or preventing women’s social interactions have been practised by most nations worldwide. Thus, the question is not the rules of the law in the provisions of the Quran but the way in which a woman was treated in different social contexts in the majority of nations across the globe. A woman was mostly seen as an object for sex, and to accept her as having an opinion in the court of justice was a very difficult issue indeed.42 40

Charles Philips, Vacation Thought on Capital Punishments (London: William and Frederick G. Cash, 1857), p. 44. 41 For an international aspect, see generally David Wingeate Pike, Crimes Against Women (2010). 42 This is true even today in most recognised democratic countries. Even in Sweden, it was only 25 years ago that the first woman was accepted as a professor of law, in a faculty which has had at least 500 years of historical development. This was not based on equal footing. It was worked out after many mental, social, and underground academic exchanges. Thus, the position of women in the Islamic Court of justice, almost 1500 years ago, should not be regarded as a surprising issue.

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Consequently, this was the context in which the Islamic system survived in the Arab World until a gradual change in the deep-rooted culture concerning the position of women took place and until their testimony was given a correct definition and scope. Thus, it must be emphasized that the practice that regards the testimony of two women equivalent to the testimony of one man is against the present development of Islamic law and should be regarded as a violation of the instruments of international human rights law, including the Cairo Declaration on Human Rights in Islam. Furthermore, due to the second source of Islamic law “Whatever wrongs took place in the days of ignorance are abolished by Islam […] and whatever wrongs take place in Islam may be abolished by repentance (istighfƗr ).”43 This statement clearly points to many facts. First, severe punishments have been abolished in Islamic law because of the modern development of international criminal human rights law.44 Second, the testimony of a woman and a man are equal and should not be interpreted differently. The Arab Charter on Human Rights also refers to the equality of women and men. The Charter has even provided for positive discrimination in favour of women. It reads that: Men and women are equal in respect of human dignity, rights and obligations within the framework of the positive discrimination established in favour of women by the Islamic Shariah, other divine laws and by applicable laws and legal instruments. Accordingly, each State party pledges to take all the requisite measures to guarantee equal opportunities and effective equality between men and women in the enjoyment of all the rights set out in this Charter.45

The spirit of the statement above, the Cairo Declaration on Human Rights in Islam, and the Arab Charter all imply the fact that the provisions of the Statute of the ICC concerning the equality of the testimony of women and men are completely correct and should not be misunderstood in any way by the Islamic nations or states. Equality of race and gender is the first principle of justice and this has to be respected by all nations worldwide,

43 Taha Jaber Al-Alwani, “The Testimony of Women in Islamic Law”, www.alh ewar. com/Taha Testimony.htm (28k; visited on 24/02/09). 44 Farhad Malekian, The Heaven of Justice with Love, 36 (1) Journal of the Henry Martyn Institute (2017), pp.5-29. 45 Article 5 (5).

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not only during war- and peacetime but also in the proceedings of national, regional, and international criminal jurisdictions. 46

46

See also Farhad Malekian, The Laws Governing Crimes against Women Constituting Obligatio Erga Omnes in David Wingeate Pike, Crimes Against Women (2010).

CHAPTER SIXTEEN THE QUEST OF INTERNATIONAL CRIMINAL ACCOUNTABILITY IN ISLAMIC PROCEEDINGS

1. Evading Criminal Responsibility “On the Day when every person will be confronted with all the good he has done, and all the evil he has done, he will wish that there were a great distance between him and his evil.”1 Islamic theory is based on accountability at all levels. Obviously, Islamic law does not accept crimes against humanity, war crimes, genocide, or aggression. This also includes the brutal crimes committed by groups or authorities in the name of Islam or in the cloth of an Islamic priest. The concept of international accountability also applies to international criminal law and the law of the ICC. In fact, the principle of criminal responsibility constitutes one of the most important principles for the implementation and enforcement of the provisions of criminal law on the perpetrators of national, regional, and international crimes. This principle has been developed and expanded during humankind’s long civilisation, and there is almost no national society that does not base its legislation on the concept of responsibility. The concept of responsibility has also been extended to the system of international criminal law and international criminal tribunals. For instance, the concept of international criminal responsibility is reflected in the seven well-known provisions of the international military tribunals established after the Second World War: the Nuremberg and Tokyo Tribunals. The tribunals were mostly effective in developing the concept of international criminal responsibility of individuals as well as the prosecution and punishment of perpetrators of war crimes in connection with the Second World War. The legal effect of the law of the 1

(Surat Al-Imran, Verse 30); Consult particularly on the meaning of humanity Tariq Ramadan, The Quest for Meaning, Developing a Philosophy of Pluralism (London: Penguin, 2010).

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tribunals is particularly noticeable in the provisions of a number of international criminal documents applicable to international crimes.2 The principle of international criminal responsibility of individuals is rather controversial in case of superior orders or the plea of superior orders by individuals wishing to evade prosecution and punishment. Impunity is granted particularly to individuals who are powerful politicians. This is one of the reasons that the perpetrators of international crimes have often been successful in avoiding the application of criminal sanctions against their criminal conduct. However, the international criminal tribunals after the Second World War strongly rejected the plea of superior orders as a means of escaping prosecution and punishment. The principle of criminal responsibility of individuals was originally based on the assumption that individuals are the most essential participants in the commission of crimes and therefore liable to prosecution and punishment, regardless of their official position, hence including heads of state or government. This principle has evoked a very strong response in the original theory of Islamic law, including its international criminal law, or in the hypothetical concept of an Islamic international criminal court. A similar opinion regarding the concept of criminal responsibility of individuals can also be found in the provisions of the statutes of international criminal courts/tribunals. This also includes the ICC. In the system of international criminal law, the term “international criminal responsibility of individuals” means anyone who, in one way or another, participated in the commission of certain acts constituting international crimes. The Statute of the ICC deals with the concept of individual criminal responsibility in Article 25. It reads as follows: 1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2 To note only a few: the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949; the Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949; the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949; Protocol I Additional to the Geneva Conventions of 12 August 1949, 12 December 1977; Protocol II Additional to the Geneva Conventions of 12 August 1949, 12 December 1977; the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948; the International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966; the International Convention on the Suppression and Punishment of the Crime of Apartheid, 50 November 1975; and the United Nations Convention on the Rights of Child, 20 November 1989.

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2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

The principle of criminal responsibility may also extend, in certain circumstances, to the concept of criminal responsibility of organizations and states. It is, however, important to emphasise that the principle of international criminal responsibility of individuals, organizations, and states has not been vigorously employed in the system of international criminal law for lack of juridical and political agreement. Individual criminal responsibility has been enforced by the ICTY, the ICTR, and the

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Sierra Leone Court. All these courts had an ad hoc nature and are the creation of the United Nations. The ICC is also trying, to a limited extent, to apply the concept of international criminal responsibility to individuals. The Court is only successful in making the weak assume responsibility; apparently, the jurisdiction of the Court has no legal authority over the strong. The situation may be similar in terms of the establishment of an Islamic international criminal court, as long as both legislation and the criminal law are, de facto, instruments of political authorities in any state, Muslim or non-Muslim. The policy of the Court indirectly encourages impunity. Other factors, such as the reluctance of states to yield legal power to the jurisdiction of the ICC and the disinclination of political powers in each state to accept the concept of criminality of their leaders, have also contributed to the non-implementation and non-enforcement of international criminal law in international criminal courts.

2. Islamic Border of Criminal Responsibility The whole concept of Islamic theory is based on the concept of various forms of individual responsibility for natural rights and natural law.3 Similarly, the whole notion of criminal responsibility in international criminal law, including all its relevant principles, meets the various necessary conditions for the attribution of criminal responsibility in Islamic criminal law. The laws and provisions of the International Criminal Tribunal for Nuremberg,4 the International Criminal Tribunal for 3

Examine Murphy, Ray; El Zeidy, Mohamed M, Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War, International Criminal Law Review, vol. 9, Number 4, 2009, pp.623-649; Malekian Farhad, The Concept of Islamic International Criminal Law, A Comparative Study (1994). Badar, Mohamed Elewa, Islamic Criminal Justice in the 21st Century,, International Criminal Law Review, vol. 9, Number 4, 2009, pp.591-593; Ilias Bantekas, The Disunity of Islamic Criminal Law and the Modern Role of IjtihƗd, International Criminal Law Review, vol. 9, Number 4, 2009, pp.651-665; Lippman, Matthew, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York, Westport, Connecticut, London, 1988). 4 In the opening statement before the International Military Tribunal, Robert Jackson, the Prosecutor of the Tribunal correctly asserts that: “The principle of individual responsibility for piracy and brigandage, which have long been recognized as crimes punishable under international law, is old and well established. That is what illegal warfare is. This principle of personal liability is a

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Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, other ad hoc tribunals, and the ICC are in conformity with the basic provisions of Islamic criminal law and justice.5 The theory of all these international legal bodies is to find the law, to find the accused, to judge according to the law, and to apply lawful, relevant sanctions. Islamic law does the same. In order to apply Islamic criminal provisions, it stipulates three prerequisites for criminal liability. necessary as well as logical one if international law is to render real help to the maintenance of peace. An international law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare….Only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the Charter with the principle of personal responsibility. Of course, the idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity. The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.” Available at https://www.roberthjackson.org/speech-andwriting/opening-statement-before-the-international-military-tribunal/ (visited 18 February, 2017). 5 For example, the Law of the Statute of the ICTY reads that ‘1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. 2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.’ Article 7.

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First, the offender must physically have the ability to commit the crime. Second, a sufficient link between the crime and accused must be established in order to deliver a judgment. The offender must know that the commission of the act constitutes an offence, ‘ilm. Third, the act must be committed with intent or qasd.6 The notion of criminal intent is one of the three basic requirements for the imposition of a penalty. The concept of intent also denotes the fact that proof of mens rea is a necessary condition within the philosophy of Islamic international law. The reason for this is very simple. The concept of criminal responsibility in Islamic criminal law and the aggravation or mitigation of punishment are all dependent on the presence or absence of criminal intent.7 Shariah, as the source of Islamic law, strongly protects mental illness, and the concept of attribution of criminal responsibility mostly refers to the guilty mind of a person. In other words, the offender cannot be culpable unless the mind is guilty. The concept of mens rea therefore refers to the state of mind of a person committing an offence under Islamic criminal law and not just to the fact that s/he is a physical person. It follows that, if the intention of the convicted person was to commit murder, then s/he must accept the death penalty. It means, conversely, that if intent did not exist, the punishment may be reduced to economic compensation.8 The Islamic philosophy – in two words í means responsibility and duty. Beyond this, criminal responsibility in Islamic law is a separate institution in itself. The provisions of Islamic law cannot be properly enforced without the concept of responsibility of its subjects. Thus, responsibility in Islamic law constitutes the core principle of the implementation and application of the principles of Islamic jurisdiction. Islamic law recognizes various types of responsibility for its subjects, including moral, civil, contractual, brotherhood, family, neighbourhood, social, economic, taxation, universal, and criminal responsibility. The concept for all these types of responsibility is essentially based on breaches of the Islamic code of behaviour. This also means that a similar theory should also be entered into the concept of an Islamic international criminal court, basing its whole theory of responsibility on Shariah law, combined with inquisitorial, adversarial, and also (elements of) accusatorial responsibility. 6

Khalid A Owaydhah, ‘Justifications and Concept of Criminal Liability in Sahri’ah, 3 (2) Humanities and Social Sciences Review (2014), pp.55-71, at 57. 7 Id. 8 Id. pp.57-8.

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3. Deliberate Abuse of Freedom Islamic law attributes the concept of criminal responsibility exclusively to individuals and therefore bases the responsibility of offenders on intentional or deliberate abuse of freedom of choice in their social or international conduct.9 Consequently, Islamic law does not agree with any other opinions on the concept of criminal responsibility of individuals than that the abuse of freedom of choice. For example, one of the chief differences between the Islamic concept of criminal responsibility and other criminal systems has been that Islamic jurisprudence totally contradicts the opinions of earlier European scholars who advocated that certain persons might habitually commit crimes and are therefore “born criminals.” One example is Cesare Lombroso, the Italian criminologist who was the founder of the Italian School of positivist criminology. In his opinion, individuals inherit the concept of criminality.10 This assumption is totally rejected by the Islamic jurisprudence of criminal law, according to which all crimes are essentially almost avoidable and not inevitable, whether committed socially, generally, or in the international conduct of individuals. In other words, the soul/spirit of all individuals is free of sin. Sin is the result of the actual conduct of a person in her/his temporal life and is not therefore substantive in the spirit of man. This also means, in one way or another, that the Islamic concept of criminal law, including an Islamic international criminal court, is not in conformity with the established theory of Kant regarding the propensity to evil in the nature of man. It must, however, be added that Islamic law places great emphasis on the philosophical and spiritual idea that God is aware of the nature of man, including his will, thoughts, and desires, and therefore God knows the fate of man. In spite of all this, a person alone decides her/his destiny with her/his actions, will, and good and evil deeds. The reason for this is that an individual generally has the capacity to think, choose, and understand. 9

Moreover, “The concept of personal responsibility is associated with the principle of equality and uniformity in punishment. It is a fundamental Islamic belief that every adult offender is responsible and should be punished for his crime. Moreover, penalties are to be inflicted equally on all, regardless of distinctive characteristics such as race, religion, colour sex, language, ethnic background or social class.” Matthew Lippman,, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York, Westport, Connecticut, London, 1988), p.81. 10 One of his writings was published mainly in many languages in Europe. Cesare Lombroso, L'uomo delinquente (1878).

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God has given humans the ability to be good and do well, and whatever action a person may take is therefore her/his own desire and choice, although God is already omniscient regarding all actions during a person’s lifespan: God is omnipotent. Concerning the system of an Islamic international criminal court, duress, immaturity, and mental disability (including insanity) cannot assist the offender in escaping from criminal responsibility. For instance, duress may not by itself exculpate a person from core international crimes such as war crimes, crimes against humanity, and genocide. Duress may be a special case of self-preservation, when the danger has been tolerated out with express mens rea of compelling the agent to commit a crime. Still, this cannot be a legal excuse to commit the international crime, despite the duress being structured by the experience of physical as well as moral compulsion to commit the crime. Regarding the concepts immaturity, mental disability, and insanity, because of the gravity of the offense, the disposition of the case depends largely on the value of the existing evidence regarding cooperation, assistance, aiding, supporting, abetting, helping, encouraging, collaborating, and joining in the preparation of the commission of the given criminal offence. It is a question of the degree and conditions of each particular case. This means that the statute of an Islamic international criminal court cannot and will not ignore core crimes of international criminal law. Moreover, Article 51 of the Statute of the ICC can be completely adapted into an Islamic international criminal court. There is no contradiction between its provisions and corresponding Shariah provisions. The article concerning grounds for excluding criminal responsibility provides the following: 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: (a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

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(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it. 5. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.

Under certain circumstances, the concept of criminal responsibility in domestic Islamic law may be mitigated or even ignored. This occurs when a person carries out an action without deliberation or unintentionally and the principle of freedom of choice is lacking in those actions. This includes conditions such as duress, immaturity, and mental disability (including insanity). In these cases, the concept of criminal responsibility cannot be attributed to an accused person who has uncontrollably violated the law. The position of the above Islamic rule, as I have stated in the other paragraphs is different, however, when it comes to Islamic international criminal law and particularly concerning core international crimes. The Western nations may also treat national and international core crimes with a different scale of recognition. In cases of disability under the provisions of Islamic national criminal law, however, a guardian may be accountable before an Islamic criminal jurisdiction. This basic philosophy should also be respected in the case of core international crimes.

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4. Violations against Mankind The concept of criminal responsibility of individuals in an Islamic international criminal court will be more or less similar to the concept of criminal responsibility within the structure of the ICC. Islamic international criminal law bases the concept of criminal responsibility of persons on the element of intent and, consequently, intent constitutes one of the essential elements for the imputation of the concept of criminal responsibility to the perpetrators of international crimes. Unintentional acts are therefore not classified under the concept of responsibility. For example, in times of war “Muslim soldiers have to take care that they do not fire directly on neutrals, women and minors and other non-combatants, yet if any damage is done to them unintentionally, no responsibility is to be placed on the Muslim army.”11 This deduction from Islamic rules is indeed very controversial and not practical at all. This concept should not, however, release an Islamic state from the consequence of damages for the purpose of reparation. In addition, the concept of intent or non-intent is very difficult to prove in the system of international criminal courts, particularly concerning core international crimes. In Islamic international criminal law, only the perpetrators of international crimes bear the concept of international criminal responsibility, and this responsibility is applicable to all persons who participate in their commission. The concept applies regardless of their legal and political positions within the state system. Some of the international crimes involving the concept of international criminal responsibility of individuals for violations of Islamic provisions of international criminal law include war crimes, crimes against humanity, mass killing, or systematic destruction (genocide), aggression, rape, torture, and child recruitment.12 Regrettably, child recruitment by Islamic nations has been frequent. One important point in the application of international criminal responsibility under Islamic international criminal law is that the violated legal provisions must be de lege lata, and all judges must always respect the principle of legality in all aspects of criminal jurisdiction.13 This means that an Islamic international criminal court has to fulfil all these necessary requirements in order to be established and recognised as an authentic authoritative court. This is an important point in the prevention of core 11

Muhammad Hamidullah, Muslim Conduct of State (1945), p.194. For an examination of these international crimes under the system of Islamic international criminal law, see the relevant chapters. 13 See Chapter eight. 12

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international crimes and in the protection of criminal responsibility and the rights of the criminally accused in proceedings of an Islamic criminal jurisdiction. It must be emphasised that, since almost all international crimes in Islamic international criminal law are treated under the principle of universality, all Muslim states are (according to Islamic principles) authorized to prosecute and punish the perpetrators of international crimes that have come under their jurisdiction. An Islamic international criminal court cannot and should not, in reality, ignore the commission of serious international atrocities by Islamic superior authorities. It also means that superiors who are in office and superiors who are on the battlefield both have criminal responsibility for violations of Islamic international criminal law before an Islamic international criminal court. In addition, the responsibility of a superior, which is stated in the Statute of the ICC, can be identically formulated for the Islamic international criminal court. Article 28 of the Statute of the ICC governing the concept of responsibility of commanders and other superiors therefore has a core function. In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

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On the grounds of political considerations, the theory of universality may not, however, be respected by Islamic nations in practice. Nevertheless, the consolidation of the theory is a fact under Islamic jurisprudence of law. The theory is basically built on the assumption that all Muslim and nonMuslim states are equal before divine law and that a serious violation of Islamic international criminal law can be regarded as a serious violation against all Muslims. In the system of international criminal law, not all international crimes can be treated under the principle of universality at the present time. There are only a few international crimes that are considered crimes against mankind and treated with the universality principle: piracy, war crimes, genocide, crimes against humanity, child recruitment, rape, or torture.

5. High-Ranking Officials Since the creation of the Nuremberg Tribunal, the principle of irrelevance of the official capacity of a superior order or high-ranking officials has become an established principle of international criminal justice.14 The 14

The International Criminal Tribunal is well known for its seven principles of criminal justice. These principles constitute an integral part of international criminal justice today and were drafted into the International Law Commission (ILC) without any further adoption or rejection. Without any hesitation, these principles are also an integral part of an Islamic international criminal court and Islamic international criminal justice. These basic principles indicate that “Principle I. Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Principle II. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. Principle III. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law. Principle IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. Principle V. Any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI. The crimes hereinafter set

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Statute of the ICC also indicates this fact. It applies equally to all persons without distinction based on official capacity. The Statute has specifically stated that the official capacity as a member of a government or parliament, a head of state or government, or a government official can in no case be a reason for relieving that person of criminal responsibility. This means that no claim of immunity or special procedural rules can permit an exemption from criminal responsibility.15 These principles are not only recognised in the system of the ICC but are also a part of an Islamic international criminal court, because Islamic law is against impunity and all individuals are equal before the law. Islamic international criminal law has basically promoted the concept of fear of God and appropriate justice in relations between superior/higher officials and those under their supervision. For example, the earlier practice of Islamic international criminal law provided full instructions concerning the decisions of commanders in the course of war. It required that they should, in all situations, fulfil the humanitarian provisions of Islamic international criminal law and fear God regarding the treatment of those who accompany them. Some of the above instructions can be found in the second source of Islamic law, i.e., the Sunnah, or exclusively in the traditions of the Prophet of Islam. Their provisions may lend themselves to the circumstances of the present time as regards the activities of superiors and the treatment of out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). (b) War Crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave-labour or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. (c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. Principle VII. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.” Consult also Philippe Kirsch, ‘Applying the Principles of Nuremberg in the International Criminal Court’, 6 (3) Washington University Global Studies Law Review Volume Symposium—Judgment at Nuremberg (2007), pp.501-509. 15 See Article 27 of the Statute.

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those who are at war with Muslims. The system of international criminal law and even the provisions of the ICC as well as other international criminal courts/tribunals also encourage the concept of international criminal responsibility of superiors and do not release individuals from this accountability. Article 33 of the Statue of the International Criminal Court relating to superior orders and the prescription of law indicates the following: 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

According to one instruction by the Prophet, “Fight ye all in the path of God and combat those who do not believe in God. Yet never commit breach of neither trust nor treachery nor mutilate anybody nor kill any minor or woman. This is the pact of God and the conduct of His Messenger for your guidance.”16 This significant instruction by Muhammad, the Prophet of Islam, to commanders, superiors, and highranking officials of armed forces/government departments continued throughout his lifetime and can now be regarded as one of the chief reasons for the promotion of Islamic humanitarian regulations in armed conflicts. Both codes, i.e., the Statute of the ICC and the instructions from one of the main sources of Islamic law, i.e., the Quran, implicitly share the same theory of criminal responsibility concerning the position of superiors and their unlawful orders. The successors of the Prophet commanded the highranking officials or superiors of armed forces to remember: ... Souvenez-vous, disait-il à ses généraux, que vous êtes toujours sous les regards de Dieu et à la veille de la mort; que vous rendrez compte au dernier jour ... Lorsque vous combattrez pour la gloire de Dieu, conduisezvous comme des hommes, sans tourner le dos, mais que le sang des femmes, ou de celui des enfants et des vieillards, ne souille pas votre victoire. Ne détruisez pas les palmiers, ne brûlez pas les habitations, les 16

Muhammad Hamidullah, Muslim Conduct of State (1945),p.299.

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champs de blé, n'abattez jamais les arbres fruitiers, et ne tuez le bétail que lorsque vous serez contraints de le manger. Quand vous accordez un traité ou une capitulation, ayez soin d'en remplir les clauses. A mesure que vous avancerez, vous rencontrerez des personnes religieuses qui vivent dans des monastères (moines) et qui servent Dieu dans la retraite: laissez-les seuls, ne les tuez point, et ne détruisez pas leurs monastères...17

The model of instructions for commanders must be read in conjunction with the chapter on war crimes, which lists the acts prohibited during an armed conflict and recognizes their violations as constituting war crimes, thus giving rise to the concept of international criminal responsibility on the part of the perpetrators. The activities of high-ranking officials are limited during war and must conform to the humanitarian principles of Islamic international criminal law. It also means that a person acting pursuant to an order of a superior is not permitted to be relieved of criminal responsibility for any violation of the law of armed conflict. In a comparative analogy, the provisions of Islamic international criminal law concerning limitation of the scope of activities of superiors and the system of international criminal law are parallel developments, and the scope of their applicability may, in many aspects, overlap. Both systems of international criminal law and their respective criminal justice place considerable emphasis on recognition of the criminal responsibility of superiors, commanders, and even the heads of state.

6. Overlapping Court Principles The Statute of the ICC has specifically provided several articles under which the criminal responsibility of certain persons has been strongly consolidated. In fact, the Court is permitted to put an end to the impunity of heads of state, commanders in chief, and superiors. International criminal justice and Islamic justice both prohibit shielding perpetrators from criminal responsibility for crimes against humanity, war crimes, genocide, and aggression. The concept of an Islamic international criminal court does not contradict the established concept of the ICC and its function concerning the attribution of international criminal responsibility to suspected persons.

17

'Siyer. t. I, pp.50-58; - Ockley, La Conquête de la Syrie, de la Perse et de l’Egypte par les Sarrasins, t. I, p.22-27, etc.; Gibbon, The Decline and Fall of the Roman Empire (1857), Vol. II, p.449. Quoted in Rechid, L’Islam et le Droit des Gens, pp.451-452.

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Some of the most significant provisions of both systems are the following: —Individuals have criminal responsibility for the violation of their provisions. —Different forms of immunity, which may be attached to the official capacity of a person, whether empowered by national or international organizations, states, and different forms of governments, do not prevent attribution of international criminal responsibility to that person. —The concept of individual criminal responsibility applies to all persons with no distinction stemming from their official capacity. —The official capacity of persons as heads of government, members of a government, or other leading capacities does not exempt them from international criminal responsibility. —It is the duty of a superior to take all reasonable measures to prevent criminally wrongful conduct. S/he therefore bears criminal responsibility for failure to comply with her/his duties. —All persons acting as or having the function of military commanders bear international criminal responsibility for the commission of certain crimes. —Superiors bear international criminal responsibility for the acts/conduct of their subordinates because of their duty to maintain effective control over them. —Failure to prevent subordinates from committing crimes calls upon superiors to accept criminal responsibility. —A superior, commander, or head of state or government may be held criminally responsible for grave violations of international humanitarian law of armed conflict. All these provisions can be examined within the basic framework of international criminal law formulated and enumerated in the seven principles of Nuremberg. These principles are not only an integral part of today’s International Criminal Court but are also part of the Islamic concept of an international criminal court. The principles have been laid down as the basic elements of international criminal justice and discussed by the International Law Commission without any further adoption or rejection.18 18 Farhad Malekian ‘Comparative Substantive International Criminal Justice’, in Ronald Slye (ed.),The Nuremberg Principles in Non-western Societies: A

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Because of their very significant function within the system of international criminal justice and the entrance of all these principles into different international criminal conventions and customary international criminal law, however, they are also considered part of jus cogens principles.19 These principles provide as follows: Principle I: Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Principle II: The fact that internal law does not impose a penalty for an act, which constitutes a crime under international law, does not relieve the person who committed the act from responsibility under international law. Principle III: The fact that a person who committed an act, which constitutes a crime under international law, acted as Head of State or responsible Government official does not relieve him from responsibility under international law. Principle IV: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. Principle V: Any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI: The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).(b) War crimes: Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. (c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions Reflection on their Universality, Legitimacy and Application (2017), pp.10-44, at 16. 19 For instance, regarding rape as a crimes against humanity see David S. Mitchell, ‘The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine’, 15 Duke Journal of Comparative & International Law (2005), pp.219-57.

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7. Similar Elements of Criminal Responsibility As we have demonstrated elsewhere, both concepts of law, i.e., Islamic criminal jurisprudence and the system of international criminal jurisdiction, recognize the concept of international criminal responsibility on the part of individuals for violations of their rules. Islamic law, in fact, deals with all the concepts of crime found within the framework of the ICC. Thus, in Islamic criminal jurisdiction, like the Statute of the ICC, responsibility is based on three key elements: legal, physical, and mental elements. The legal element of criminal responsibility refers to the infringement of a legal norm of criminal law. This implies an actual or potential injury to one of the subjects of law. The legal element also creates the concept of attribution of criminal responsibility to a person. Thus, pure Islamic jurisdiction applies the concept of criminal responsibility to all persons without regard to their ranks. The attribution of criminal responsibility may therefore be similar in the criminal jurisdictions of the statutes (the ICTY, the ICTR, and the ICC) and include the accountability of the individual, her/his mens rea, and her/his responsibility for the consequence of crimes. The physical element refers to the direct involvement of a person in a criminal act. The physical element not only means direct physical involvement in the commission of the relevant crime but also other types of engagements, such as direct and indirect assistance, giving and providing instructions. The mental element of the crime refers to the material aspects, which are actually the basis of criminal responsibility and liability for punishment. It means that the international crime has been committed with the intent of the perpetrator and with her/his knowledge. All three elements are generally the basis of criminal responsibility in Islamic criminal jurisdiction and are regarded as an integral part of the Statute of the ICC.21 This means that any possible establishment of an

20 21

For a close examination of this principles Malekian note 18, pp.20-44. Article 50.

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Islamic international criminal court does not violate the sovereignty of the ICC and even makes it more powerful and authoritative. In other words, the concept of the creation of an Islamic international criminal court does not at any degree or level contradict the provisions of the ICC regarding the mental element. For proof of this, one can easily compare the provisions of the Court, which provides the following in Article 50 concerning mental elements: 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 5. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.

7.1. Age of Criminal Responsibility The attribution of criminal responsibility is indeed not easy. The question is more problematic concerning the age of the accused person, namely whether s/he bears criminal responsibility for the criminally wrongful conduct. In early Islamic criminal justice, judicial procedures sometimes depended on the gravity of the offence and the cultural attitudes of the perpetrator. In other words, the court and the prosecutor had to decide whether the alleged offender had undergone certain developments enabling her/him to understand the difference between bad and good, wrong and right, and just and unjust according to her/his age. This practice, however, has changed and, due to the appropriate interpretation of Islamic rules as well as the entrance of Islamic nations into international conventions on human rights law, the age of criminality has to be in conformity with international standards. Other theories in defence of criminal responsibility at a young age are weak and unacceptable.

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A person may not be recognised as criminally responsible if s/he has not reached the age of 18.22 This age is strongly supported in the Islamic instruments of human rights law. The ICC Statute also supports the age of 18 as the age of criminal responsibility. It clearly reads that “the Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.” While the wording of the ICC is clear, the Statute is silent concerning the position of persons who are under 18 years of age. Despite this, both Western and non-Western states have used children as soldiers and engaged them in the commission of very serious war crimes and crimes against humanity. The establishment of an Islamic international criminal court does not violate the system of international criminal law or the statute of an international criminal court, and it may be an alternative to preventing or reducing this serious violation of both sets of international criminal laws. Most non-Western states escape their own criminality, however, by referring to the criminality of the Western states, and they present the forbidden justification of the game of tu quoque in order to defend their own position.

7.2. Intent We have noted that Islamic international criminal law places heavy emphasis on the principle of intent or fault. Nevertheless, prescribing the criteria for intent is rather complicated. Islamic jurisdiction encourages justice through good thoughts and good actions. However, this does not necessarily mean that bad thoughts are officially prosecutable. In other words, good thoughts and actions refer inter alia to respect, non-violations, non-breaches of morals, and oral or legal contracts, including physical and psychological factors. This is based on the spiritual and natural strength of a person not to violate the divine law. As long as they are not translated into action, in one way or another, bad thoughts do not necessarily require punishment under Islamic law, but they decrease the morals and trust of a person in the spiritual rights of human beings. Thus, bad intent is not punishable as long as it is not joined or shared with others. Nevertheless, this intent may strongly encourage other persons to carry out certain actions/functions that are not necessarily physical, but solely psychological. 22

See, however, other opinions. Don Cripiani, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (United Kingdom: Ashgate Publishing, 2009), pp.79-82.

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Therefore, mens rea under the jurisdiction of Islamic international criminal law even includes the specific psychological encouragement of a person in a given situation. This psychological state emerges from the knowledge and desires of the person. It means the person has actual knowledge of the fact and possesses the necessary knowledge of the provisions of criminal regulations. Thus, in Islamic criminal jurisdiction, fault “must be proven during the procedure of jurisdiction; as long as existing evidence does not prove that the defendant’s conduct was criminal, his responsibility will be subject to debate. Thus, specific intent must be shown that leads to a definite result, or dolus evenualis (eventual intent), that also has the same result. Both positions denote deliberate intent.”23 Consequently, a causal relationship between the act committed and the resulting act has to exist.24 Similarly, the system of international criminal prosecution emphasises the intent of the perpetrators. This intent can be physical or psychological. For instance, concerning the intent of the perpetrators against the Muslim population of Herzegovina, the ICTY stated that many of their acts constituted inhumane acts and were crimes against humanity committed during an armed conflict as part of a widespread or systematic attack on a civilian population, i.e., for discriminatory reasons, because the accused intended to inflict severe damage on the victims’ physical integrity and human dignity. The Trial Chamber further found that, in some instances, the accused himself was the direct perpetrator and, in others, that the perpetrator intentionally, directly, and substantially assisted in the common purpose of inflicting physical suffering upon the victims and thereby aided and abetted in the commission of the crimes.25 The findings of fact about the acts of the accused relevant to this count are those concerning beatings and acts of violence referred to in dealing with Count 10. The Trial Chamber finds beyond reasonable doubt that those beatings and other acts of violence which were suffered by the six victims there named, who are Muslims, constitute inhumane acts and are crimes against humanity committed during an armed conflict as part of a widespread or systematic attack on a civilian population and that the accused intended for discriminatory reasons to inflict severe damage to the victims’ physical integrity and human dignity. The Trial Chamber further 23 Farhad Malekian, ‘The Homogeneity of International Criminal Court with Islamic Jurisprudence,’ 9 (4) International Criminal Law Review (2009), p.611. 24 Ahmad Fathi Bahnassi, Criminal Responsibility in Islamic Law, in M. Cherif Bassiouni, ed, The Islamic Criminal Justice System, p.172. 25 Tadic (IT-94-1-T), Judgement, 7 May 1997, para.750.

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In the context of the above statement, within international criminal jurisdiction, intent can take two forms. One is psychological and the other physical, both of which demand the criminal responsibility of the perpetrator. This means that, without prejudice to the sources of Islamic criminal jurisdiction or international criminal jurisdiction, both systems rely heavily on the intent of the perpetrator and its effect on the commission of criminally wrongful conduct. Yet, if a person attempts to commit a crime but regrets doing so, her/his responsibility may be reduced. This, however, depends on the situation. According to what has been said above, the provisions of the Statute of the ICC do not contradict the provisions of an Islamic international criminal court. An examination of the relevant provisions of the ICC also implies this fact. Article 50 of the ICC concerning the mental element reads as follows: 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 5. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.

7.3. Participation Islamic criminal justice, like the international criminal justice system, pays special attention to several acts that may result in the prosecution and 26

Tadic (IT-94-1-T), Judgement, 7 May 1997, para.730.

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punishment of the perpetrators. The word “participation” is therefore used as the title of this section to identify certain acts that may, in one way or another, be helpful in the commission of a crime. It implies assistance, aid, complicity, abetting, help, attempt, encouragement, joint criminal enterprise, cooperation, united efforts, soliciting, and contribution. These acts occur when: —S/he assists in the preparation and performance of criminal conduct. —S/he aids and abets in the performance of the crime. —S/he carries out her/his intent through another person without direct involvement in the commission of the crime her-/himself. —S/he orders, in one way or another, a violation of the system of international criminal law. —S/he attempts to commit the crime. —S/he knows or has sufficient knowledge that the crime is going to be committed. —S/he encourages or incites others to commit grave violations. —S/he jointly commits the crime together with another person. —S/he solicits the commission of the crime. —S/he contributes to the preparation or commission of the crime. —S/he cooperates in the commission of the crime.

7.4. Mitigation Like many other criminal legal systems, Islamic criminal law encourages the elimination and prevention of criminal conduct. There are different ways to mitigate or reduce the responsibility of a violator of Islamic international criminal law. However, all reasons for mitigation must be strongly proven and there should not be any state of doubt. Similar provisions have been found under the system of international criminal justice. These apply when: -

The accused is juvenile. The accused succeeds in preventing the completion of the crime. S/he voluntarily gives up the criminal purpose. S/he has committed the criminal conduct exclusively based on selfdefence. S/he was under immediate pressure to protect others from grave criminal conduct. S/he attempted or committed the crime because of threat or coercion by other persons.

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-

-

Sometimes intoxication may be seen as a reason for mitigation of criminal responsibility. This only applies when the intoxication is non-voluntary and not based on personal intentions. The accused suffers from total insanity or a mental disorder. The accused involuntarily uses strong narcotic substances. The accused is in a state of unconsciousness. This means s/he is completely unaware of her/his surroundings. A mistake of law may be a basis for excluding criminal responsibility.

The above reasoning can be seen in the provisions of the Statute of the ICC as well. Article 52 of the Statute concerning mistake of fact or mistake of law provides that: 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 55.

7.5. Joint Criminal Enterprise The origins of the theory of joint criminal enterprise may be traced back to the dark events of grave violations of the system of international criminal law.27 The theory was developed as a result of the consequences of the Second World War and the murdering of innocent Jews in joint criminal enterprise. Later, because of the atrocities and devastation caused by various wars, particularly the Yugoslavian war, the concept of joint criminal enterprise became even more serious and demanded effective consideration. In the Krstiü case, the trial judgment found the accused to be a member of two distinct but related joint criminal enterprises. His aim was to ‘forcibly cleanse’ the Srebrenica enclave of its Muslim population and to ensure that it left the territory otherwise occupied by Serbian forces and to

27

On this particular issue see A.M. Danner/ J.S. Martinez, “Guilty Associations: Joint Criminal Enter-prise, Command Responsibility and the Development of International Criminal Law”, 93 (1) California Law Review (2005), pp.75-169.

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‘guarantee that the Bosnian Muslim population would be permanently eradicated from Srebrenica.’28 Under the recent development of case law within the practice of the ICTR and, in particular, the ICTY, the concept of joint criminal enterprise has been recognized. The concept aims to criminalize all acts of participation, regardless of their shape or form, which serve to accomplish a criminally wrongful conduct. This means the contribution of two or more persons in the commission of a crime. A joint criminal enterprise therefore requires a common design, plan, or purpose for the crime. All defendants are answerable for the charges before a court. It is necessary to emphasize that the concept of joint criminal enterprise here does not necessarily refer to the notion of collective criminal responsibility in Islamic criminal law. The theory of collective criminal responsibility is not a appropriate method of approaching Islamic law. The Quran prohibits collective punishment and reads that ‘No soul earns anything except it is upon itself, and none shall bear the burdens of another.’29 ‘This means that the emphasis of Islamic law on the doctrine of individual liability highlights the pertinence of mens rea to the framework of Shariah, because the concept of a ‘guilty mind’ applies to every individual separately rather than collectively.’30 In addition, ‘Islamic criminal law clearly articulates that individuals are sentenced and punished for their personal acts.’31 Consequently, the examination of criminal intent plays a significant role in the recognition of the concept of criminal responsibility in Islamic law. This is the same under the provisions of international criminal justice. Therefore, the concept of joint criminal responsibility under the proceedings of international criminal courts does not necessarily refer to the concept of collective criminal responsibility but to the concept of criminal responsibility of each individual acting or committing crime through a ‘guilty mind’ or a ‘guilty act,’ i.e., actus reus. Islamic international criminal law condemns any criminal intrigue against mankind. According to the main source of the law, “whoever killed 28

Krstiü Trial Judgement (ICTY, Prosecutor v. Radislav Krstiü, IT-98-33-T, Trial Chamber, Judgement, 2 August 2001, para.619. 29 Q, 6:164. It reads also that 'Do not return to unbelief after me by striking the necks of each other. No man is to be punished for the crimes of his father or his brother.’ Q, 41:31. Similarly, it reads that 'None shall bear the burdens of another.’ Q, 6:164. 30 Khalid A Owaydhah, ‘Justifications and Concept of Criminal Liability in Sahri’ah, p.56. 31 Id.

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a human being should be looked upon as though he had killed all mankind.”32 Thus, it encourages peaceful relations between man and man, and any cooperation to carry out an evil purpose is prohibited and recognised as unjust. In this respect, it is stated: “guard yourselves against an affliction which may smite not only those who committed injustice among you in particular (but all of you).”33 Islamic criminal justice calls upon the criminal accountability of all those who have participated in the commission of a common plan to kill, murder, torture, and forcibly evict civilians belonging to a particular ethnic group by destroying their civil services, such as religious houses. Islamic criminal justice imposes punishment on all those who have, in complicity with one another, committed crimes against humanity, war crimes, or genocide.34According to the ICTY “a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region (to effect ‘ethnic cleansing’) with the consequence that, in the course of doing so, one or more of the victims is shot and killed.”35 Due to the provisions of Islamic justice and the Statute of the ICC, the killing of individuals on the basis of race, colour, culture, religion, language, ethnic origin, social origin, and any other background are considered serious violations, and the perpetrators of these violations have to be prosecuted and punished. The establishment of an Islamic international criminal jurisdiction would not prevent the application of the provisions of the ICC under its jurisdiction.

32

The Q, 5:52. The Q, 8:25. 34 Id. 35 The Tadic case (IT-94-1-A), Judgment, 15 July 1999, para. 204. 33

CHAPTER SEVENTEEN GAUGING CRIMINAL SANCTIONS IN A SHARIAH INTERNATIONAL CRIMINAL COURT

1. Evaluating the Judgment of Christ Gauging criminal justice is not an easy task. Our judgment should prevent other persons from committing criminal acts. For instance, in ancient times, punishments were executed publicly, and the idea was that the imposition of punishment could frighten others and keep them from committing the same act. These societies believed in the general preventive effect of punishment. The concept of prevention also means deterrence and suppression of criminal behaviour and conduct. The philosophy of prevention is also part of Islamic law and has also entered into the structure of international criminal law. At the same time, both legal systems, i.e., Islamic international criminal law and the system of international criminal law, strongly object to the concept of prevention. The modern supporters of both legal systems believe that punishment does not prevent crimes and may even increase the notion of criminal behaviour. Interestingly, the general preventive policy of punishment has proven to have scarcely any effect on the commission of criminal behaviour, and states have consequently endeavoured to find another strategy for the prevention of crime and gauging the principles of criminal justice. The policy of punishment applied under the ICC is definitely adquisitorial with the philosophy of deterrence; however, it is doubtful whether it will be successful in the long term because the commission of national or international crimes is increasing among individuals, organisations, and states. A very soothing opinion of Victor Gollancz concerning a historical judgment by Christ demonstrates reasons for impunity as well as grounds for the non-implementation of justice and for assistance to victims of violence. Two thousand years ago

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man had condemned her, so neither did he condemn her. ‘Go’, he said, and ‘sin no more.’1

2. Equality Before the Judgement of God The principle of equality of mankind constitutes one of the basic principles of justice in Islamic criminal law. One may draw a similar conclusion concerning the proceedings of an Islamic international criminal court. In fact, ‘Islam was largely responsible for moving humanity from darkness of Greco-Roman ideas about war to the light in which enemy was guaranteed certain rights and the fighting man was assured of certain protections.’2 The principle of equality of mankind embodies the fact that all human beings are equal and should not be treated differently. It means equality of race, gender, language, religion, and submission of claims against each other in a national or in an international criminal court. Any accusation should be based on authentic evidence. Moreover, one should remember the following: The end of natural the natural society established among men in general is that they should mutually assist one another to advance their own perfection and that of their conditions; and Nations, too, since they may be regarded as so many free persons living together in a state of nature, are bound mutually to advance this human society. Hence the end of the great society established by nature among all Nations is likewise that of mutual assistance on order to perfect themselves and their condition. The first general law, which is to be found in the very end of the society of nations, is that each Nations should contribute as far as it can to the happiness and advancement of other Nations. Such is the foundation of those common duties, those offices of humanity, which Nations mutually owe one another.3

Similarly, Islamic philosophy says:

1

Victor Gollancz, Capital Punishment: The Heart of the Matter (London: The Camelot Press, Southampton, 1955), pp.1-3. 2 Ahmed Z. Yamani, Humanitarian International Law in Islam: A General Outlook’, 7 Michigan Yearbook of International Legal Studies (1985), pp.189, at 189-190. Quoted in Karima Bennoune, ‘As-Salamu ‘Alykum? Humanitarian Law in Islamic Jurisprudence’, 15 Michigan Journal of International Law (1994), p.641. 3 Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereign, p.xii (Book II, Para.2).

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He has plainly clarified the religion which is revealed to you and that which Noah, Abraham, Moses, and Jesus were commanded to follow (He has explained it) so that you would be steadfast and united in your religion. What you call the pagans to is extremely grave for them. God attracts to (the religion) whomever He wants and guides to it whoever turns to Him in repentance.4

The principle of equality of mankind is the cornerstone of Islamic theory, and this has to be understood by all nations, including Islamic nations. It also means that we may appeal against each other, we may bring cases before the jurisdiction of different courts, and we may be a prosecutor, a judge, an offender, a victim, a witness, or even an authority who ordered the creation of the court. One should be very careful, however, and should not interpret these positions as a priority for oneself or a disadvantage for another. The Quran takes the following approach: ‘O mankind! Be careful of your duty to your Lord Who created you from a single soul and from it created its mate and from two of them cultivated out a multitude of men and women. Be careful of your duty toward God, through Whom you claim/appeal for your rights from one another, and be mindful of your obligations in respect of ties of kinship. God is always watching over you.’ Mankind is equal before the court of God. This philosophy implies the fact that any human being can do wrong, and no one should be able to escape from wrong by resorting to her/his social position. All this means that impunity in Islamic criminal justice, in an Islamic international criminal court, and in all of Islamic theory is not permitted. It also alludes to and questions the philosophy that ‘the government can do no wrong,’ ‘the superior can do no wrong,’ ‘the inferior is obliged to follow the order,’ ‘the King can do no wrong,’ ‘the Crown can do no wrong,’ ‘the King enjoys immunity,’ ‘the permanent members are secured by their veto powers,’ or ‘the military power has the final word’ í all are null and void. This significant equality of mankind before national, regional, or even international courts and arbitrators has been the core principle of justice in the practice of the Prophet of Islam and in sunnah and hadith. The former constitutes a direct source and the latter an indirect source of Islamic theory. In addition, in the practice of national or regional courts and the statement of the Human Rights Commission in the Oló Bahamonde case, the fact is indicated that ‘the notion of equality before the courts and tribunals encompasses the very access to the courts, and that a situation in which an individual’s attempts to seize the competent jurisdictions of 4

Q, 42:13.

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his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1”5 This raises the question of which answers to include and which ones to leave out. As a guiding rule, we will include answers to those significant questions of Islamic law that are the most enlightening, in the sense that there is a consensus (IjmƗ‫ )ޏ‬among Islamic jurists concerning certain provisions of human rights law together with Islamic principles.

3. Equality Before the Court of Law The Islamic notion of equality of mankind before the court of law and a divine court was also entered into the corpus of the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly on 16 December 1966. The Covenant came into force ten years later. Today, it is an integral part of the international law of jus cogens and one of the four key documents in the implementation of international criminal justice. Regarding the equality of all parties before the court, the Covenant elaborates the following: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.6

On the basis of the above, the Committee of Human Rights shows that Article 14 of the Covenant on Political Rights has a complex nature and, consequently, the Committee considers it necessary to provide specific comments concerning its provisions, including their interpretation. The Committee believes that the provisions of the relevant article intend to ensure the proper administration of justice in the international sphere. For the Committee, it is very significant that the provisions of the Covenant be 5 6

HRC 1994 Report, Annex ix, Section BB, para. 9. Article 14 (1).

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respected as regards the rights of individuals before competent, independent, and impartial tribunals established by law. Therefore, the Human Rights Committee encourages the equality of parties before the courts. It emphasises that: The Committee would find it useful if, in their future reports, States parties could provide more detailed information on the steps taken to ensure that equality before the courts, including equal access to courts, fair and public hearings and competence, impartiality and independence of the judiciary are established by law and guaranteed in practice. In particular, States parties should specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular with regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative.7

This ethics of equality of human beings in the courts of law and the court of divinity in Islamic theory are based on several fundamental philosophies such as i) What is the rightful good in human conduct? ii) What is the basis of man’s knowledge of right and wrong? iii) What are the sanctions of moral conduct? iv) What are the reasons that encourage an individual to perform moral acts?8 These questions focus our thoughts on the fact that all rights for human beings have a moral basis and cannot be separated from criminal proceedings either. This equality in Islamic law is, like the European Union’s law, the principle of equality of arms, constituting a jurisprudential principle of Islamic criminal law. This is also the same in European Court of Human Rights proceedings. It is part of the right to a fair trial in both legal systems. A careful reading of the Quranic codes supports this fact. In one code, ‘God commands to maintain justice, kindness, and proper relations with their relatives. He forbids them to commit indecency, sin, and rebellion. God gives you advice so that perhaps you will take heed.’9

7

Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994). 8 Abdulrahman Abdukadir Kurdi, The Islamic State: A Study based on Islamic Holy Constitution (New York, Mansell Publishing Limited, 1984), p.33. 9 Q,: 1690.

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Similarly, in another code: ‘O you who believe, be strict in upholding justice and bear witness for the sake of God, even though it be against you own selves, your parents, or your kindred and whether it be against the rich or the poor, God knows better about them both. Do not, then, follow your own desires, lest you swerve from justice. If you conceal the truth or evade it, then remember that God is well aware of all that you do.’10

4. Classical Concepts of Judgements 4.1. Not Fitting To Be a Judge Omar ibn Al-KhattƗb, one of the well-known judges of Islamic revelation, clarified this issue for another Islamic judge who had received a complaint against Omar from a commoner. The judge respected Omar in the delivery of his judgment because of his position. Omar said: ‘If an ordinary man and Omar are not equal before you, then you are not fit be a judge.’ The one-line statement conveys a great message for the system of permanent international criminal justice or the ICC: wrong is wrong and there is no difference between offender and offender. The message is not solely addressed to the judges of the court but also to the office of the prosecutor and the entire corpus of justice as well as to all state members, including the possible establishment of an Islamic international criminal court.11 This Islamic message, dating back almost 1400 years, mirrors the opening speech of the prosecutor of the International Criminal Tribunal for Nuremberg í H. Robert Jackson. His statements governing the principles of international law are even applicable to the ISIS members. It is true, of course, that we have no judicial precedent for the Charter. But International Law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some State. Unless we are prepared to abandon every principle of growth for International Law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become 10

Q, 4:135. Umar, Son of Al-Khattab', born c.583 CE – died 3 November 644 CE). He was one of the most influential Muslim caliphs known for his judgments. He had broad knowledge in Islamic legal and criminal ethics. The Jewish tradition explains that Umar abolished the Christian ban on Jews and permitted them to come into Jerusalem and to worship. 11

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Professor Roberto Ago,13 the well-known judge of the International Court of Justice (ICJ), concludes that the intellectual origins of international law trace back to the Caliphate of Baghdad, the Caliphate of Cordoba, the Frankish Kingdom, and Byzantium.14 In his article Pluralism and the Origins of the International Community, Ago further refutes the notion that ‘the birth of the new international community and of its law’ was created by European ideology or the Western Roman Empire.15 According to Ago, ignorance of fact may excuse, but not the ignorance of the origin of international law. Otherwise, we are ‘depriving ourselves of international law.’16 Looking at the developments of Islamic law, the law was created as a forum for political and judicial systems. Omar reportedly delivered several well-known judgements. One of them is his judgement about his own

12

Available at Second Day: Wednesday, 21st November, 1945 (Part 8 of 8), http://www.nizkor.org/hweb/imt/tgmwc/tgmwc-01/tgmwc-01-02-08.html 13 Roberto Ago was an Italian writer and the Special Rapporteur of the International Law Commission of the United Nations on the codification of the draft proposal on Responsibility of States. 14 Roberto Ago, ‘Pluralism and the Origins of the International Community’, 3 Italian Yearbook of International (1993), p.1 and 4; see also Awn S. AlKhasawneh, ‘Islam and International Law’ in Marie-Luisa Frick and Andreas Th. Müller, Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives (Leiden. Boston, Martinus Nijhoff Publishers, 2013), pp.29-42. 15 Id. 16 Roberto Ago, Lezioni di diritto internazionale private: parte generale (Milan: Giuffre, 1955), p.9.

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son.17 The sanctions imposed in his judgment, however, are not acceptable in the present; nevertheless, his judgment is among the most well-known about the dignity of justice that should be maintained at all times, even for the rights of a known Muslim and even in case the offender is your own next of kin. The punishment should be seen in the light of custom, tradition, and the overall understanding of the given culture.

4.2. The Case of a Jewish Lady Once upon a time, Omar was delivering a sermon in a mosque. A Jewish lady came to the mosque with a baby in her arms and said, Omar, I have come to you to seek justice. Omar replied, What is your complaint and who does it concern? She replied, it concerns your son Abu Sahmah who was drunk and made me pregnant without my consent. This baby is the result of the rape. Everyone reacted to the complaint and waited to see what would happen. Omar replied to the Jewish lady, are you sure it was my son? Yes, I am certainly sure because I verified him on several occasions in order to be certain. Omar told the congregation, none of you should leave the mosque until I come back. Omar met his son at home and asked about the drunkenness and rape. The son denied the heinous deed, but the father knew that his son was guilty of the crime of rape. He brought him to the mosque. There, he asked the Jewish lady again, is this the person who committed the criminal conduct? Yes, it is definitely him. Omar said, customary law calls for 80 lashes for drunkenness and 100 lashes for the rape of a woman. He immediately asked for implementation of the punishment and requested the executioner not to give a light whipping, based on the fact that the guilty offender was Omar’s son. The congregation protested the punishment based on accused’s young age… However, both punishments were applied together. The son was almost dead before the last slash. Omar came to his son and told him that justice has to be done and that our message should come to everyone in this world and the other world. The son died and was buried. People witnessed that Omar’s tears were flowing. The congregation said, we warned you that he would not survive. Omar replied, you have misunderstood me. There are reasons for my tears: 17

Which, of course, would not happened in a modern Western or non-Western court today. The judge would have to recues him- or herself from the case in order to maintain impartiality. The example relates to the time where there the court was not yet as established and advanced.

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Firstly, I have established justice for the victim who was also the witness. Secondly, I have not violated the rule of law about my own nearest. Thirdly, I have saved my own son from hell for the injustice he committed. Fourthly, I cannot see my son again. The last slash was given to his grave. Indeed, the pain, happiness, justice, and love for the dead son went hand in hand. The narrative gives a clear answer to the provisions of the international covenant on political, civil, and criminal rights. It points out the fact that there is a clear-cut consensus among the Islamic sources that justice has to be done for each crime, each rape, each hanging, each lashing, each torture, and each unlawful beheading. This includes not only the crimes against peace, war crimes, genocide, and aggression committed by ISIS but also the crimes of those Islamic leaders who are robbing, plundering, killing, imprisoning, torturing, raping, and humiliating the integrity of their own population in their own countries. The Statute of the International Criminal Tribunal for the former Yugoslavia has rightly dealt with these crimes by stating that the Tribunal shall have the power to prosecute persons responsible for the crimes of a) murder; b) extermination; c) enslavement; d) deportation; e) imprisonment; f) torture; g) rape; h) persecutions on political, racial and religious grounds; i) other inhumane acts. The tribunal is empowered to deal with the crimes when committed in armed conflict, whether international or internal in nature, and directed against any civilian population.18 All these crimes, as we have stated elsewhere, fall under the notion of an Islamic international criminal court.

4.3. Vertical System of Justice The level, degree, and methods of punishment, however, have been modified since the dawn of civilisation; this should also be followed by all Islamic nations. Particularly the method of punishment is changing all the time; in fact, we are approaching a universal standard of punishment. This can be witnessed in the Statute of the ICC. The Court may impose the following penalties: 1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute: 18

Article 5 of the Statute of ICTY. Several amended Statute of the Tribunal, 25 MAY 1993 by Resolution 827, 13 May 1998 by Resolution 1166, 30 November 2000 by Resolution 1329; and 17 May 2002 by Resolution 1411.

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(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.19

Once again, if the rulers of Islamic countries cannot establish justice, justice cannot be secured, and there must be something seriously wrong in the legislation of that Islamic state í regardless of the degree of the applicable punishment. Islamic law commands justice and fair dealings regarding every matter of social, cultural, and criminal nature.20 This theory should also be respected in terms of punishment. One key serious difference, however, between the concept of applicable punishment in the system of the ICC and the original concept of Islamic punishment is that, in classical Islamic law, punishments were implemented immediately and there was almost no question of imprisonment. The Quran does not refer to imprisonment. However, the practice and criminal legislations of all fifty-eight Muslim states have been strengthened by the concept of imprisonment for a specific number of years, depending on the gravity of the crime. One cannot deny the fact that the severity of several traditional punishments is reason for criticism of the concept of punishment in Islamic criminal law. This is why the concept of punishment in Islamic criminal law has been analysed from a point of view of reproach or defensively. Although the traditional concept of punishment is being applied by state authorities from time to time, punishments such as the cutting off of hands, torture, and slashes are contrary to the entire philosophy of justice and therefore an outrage for the dignity of human beings. In other words, the methods of punishments in Islamic law seriously violate the basic principles of human rights.21 This is also explained in the Statute of the ICC and affects the determination of the sentence: 19

Article 77. Q, 16:90. 21 Malekian, Judgments of Love in Criminal Justice (Germany: Springer, 2017), p.26. 20

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According to the paragraphs above, any application of punishment must be fair and just. That is why Islamic law distinguishes between ‘the rights of God’ and ‘the rights of humankind,’ and this means different levels of crime and different levels of punishment. Concerning the rights of God, the above punishments fall under the theory of Islamic law. The punishments in the above paragraphs are applied to core crimes, and core crimes are crimes against humanity, war crimes, genocide, and even aggression, all of which constitute crimes against the rights of God. They seriously infringe ‘the rights of humankind’ because of their particular levels. In other words, crimes against the rights of God are core crimes and deserve hudud or fixed punishment because they are serious crimes in the spiritual sense of ‘humanity.’ By committing ‘these crimes an offender has disrupted the ethical public order that God’s purposes require.’23 Based on the specific level of crimes against the rights of God, the highest authority in the administration of criminal justice ‘was required to institute these punishments because, according to the doctrine of the Imamate, it was the Imam endowed with divinely protected knowledge who could implement the general purposes of God for the Muslim community.’24 Here, this means that core crimes must be dealt with by the highest organs and authorities and be punished according to the criminal rules. 22

Article 78. Abdulaaziz Abdulhussein Schedina, The Just Ruler (al-sultãn al-ãdil) in Shite Islam: A Comprehensive Authority of the Jurist in Imamte Jurisprudence (New York, Oxford: Oxford University Press, 1988), p.133. 24 Id. Here, the term ‘Imam’ is specifically applicable to those who have wide knowledge of Islamic legal discipline and not those who are expert with the religion of Islam. 23

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The concept of an Islamic international criminal court or the Statute of the ICC may be analogous to the Islamic criminal legal system. The Quran specifies: ‘O, you who believe, be upright for justice of the lord and bearers witness with justice.’25 ‘Let not the hatred of a people prevent you from demanding justice. You should be a just person, for this is closest to righteousness.’26 The fulfilment of the rights of God does not prevent the rights of mankind or other forms of punishment under Islamic law. This is also confirmed in the provisions of Article 80 of the Statute of the ICC, which concerns non-prejudice to national application of penalties and national laws. It clearly says that ‘Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.’ The theories of Islamic law, Islamic international law, an Islamic international criminal court, and Islamic international criminal law are not far from the theory of the ICC.27 This is also based on the fact that Islamic theory encourages all forms of humanitarian unity, the purpose of which is the embellishment of justice, humanity, and achieving peace. Therefore, in Islamic law, not only legal bodies but also an individual constitute ‘an autonomous unity.’28 There is, in fact, a close connection between the principles of criminal justice in the ICC and the principles of Islamic criminal law. The principles of justice are the same in both legal systems. The sole difference is that one is justice qualified by human legislations and the other is justice based on the compassionate spiritual love between man and man, justice 25

Q, 5:8. Q, 5:8. 27 The system of international law and the system of the ICC both support the intention of the contracting parties given in an international treaty. Thus, when the ICC refers to crimes against humanity, genocide, or rape, these should not be interpreted differently. In other words, interpretation of the provisions of the ICC should not be separated from their main intention. Similarly, any other convention in international law and its interpretation has to be in conformity with the intention of the given convention. This is the same in Islamic conventional international law or Islamic conventional international criminal law. See the Separate Opinion of Judge Trazi in Aegean Sea Continental Shelf (Greece v. Turkey) case, p.56. Available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=62&code =gt&p3=4 and http://www.icj-cij.org/docket/files/62/6257.pdf (visited on 1 March 2017). 28 Seyyed Hossein Nasr, Islamic Studies: Essays on Law and Society, the Sciences, and Philosophy and Sufism (Beirut: Librairie du Liban, 1967), p.8; see also Frihjof Schuon, The Transcendent Unity of Religions (New York, 1953), p.131. 26

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and justice, man and lord, and ultimately man and the recompense for wrongdoing.

CHAPTER EIGHTEEN COMPLEMENTARITY PRINCIPLE IN AN ISLAMIC INTERNATIONAL CRIMINAL COURT

1. Complementarity in the ICC One of the significant and fundamental principles of the system of international criminal justice is the principle of complementarity. It relates to the exercise of the Court’s jurisdiction, where member states are incapable or unwilling to implement the provisions of the Statute of the ICC regarding the prosecution and punishment of international offenders. The Court’s jurisdiction is in some way different from the statutes of other ad hoc tribunals. Unlike the ad hoc tribunals, the ICC’s jurisdiction is complementary with that of a domestic court.1 This is because temporary tribunals do not have a complementarity function. The Statute of the ICC recognizes that member states have the primary responsibility and the primary legal right to prosecute the commission of core international crimes. This complementarity function of the ICC is particularly emphasised in the Preamble of the Statute, which points out that ‘the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.’2 The provisions of Article 1 of the Statute also strengthen the complementarity principle. Article 1 indicates that the treaty provisions establish the International Criminal Court. The Court ‘shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.’ The provisions of the Statute govern the jurisdiction and functioning of the Court. In other words, the exercise of the jurisdiction of the ICC depends solely on whether a member state fails to comply with the provisions of the ICC concerning the core crime. The reasons include, inter alia, the 1 2

See the Preamble Clause 10, Article 1 and 17-19 of the Statute of the ICC. Before the last paragraph of the Preamble.

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unwillingness of the member state or its incapacity to genuinely carry out proceedings against the accused persons. Therefore, the principle of complementarity of the jurisdiction of the ICC is originally based on full respect for their primary jurisdictional rights. The value of primary jurisdiction of a state is generally determined by the efficiency and effectiveness of the prosecution carried out against the accused. It is also based on the fact that said state has the best possibilities to access criminal evidence and witnesses and, consequently, to carry out proceedings. However, as Luis Moreno-Ocampo, the prosecutor of the ICC observed: ‘As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.’3 According to Article 12 of the Statute of the ICC, there are certain preconditions for the exercise of jurisdiction of the ICC. These are when: 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

The philosophy of the principle of complementarity of the ICC does not contradict Islamic criminal law and justice. Article 14 of the Statute recognises the referral of a situation by a State Party to the ICC: ‘A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed 3

Delivered in the Ceremony for the Solemn Undertaking of the Chief Prosecutor (16 June, 2003).

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requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.’4 The referral should be as comprehensive and clear as possible. For this reason, ‘a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.’5 Under the Islamic system of criminal justice, not only the authorities of a state but also groups and individuals bear the responsibility to speak up about the commission of a crime or to report a crime when they have sufficient authentic evidence in their possession. This valuable duty of an individual, group, or state to inform a higher authority about a wrongdoing is therefore similar to the duties of states parties to the ICC, which are responsible for informing the prosecutor or, in certain situations, the Security Council. A similar view can also be taken concerning the establishment of an Islamic international criminal court under the ICC provisions or as an ad hoc international criminal court. The Islamic court, like its Western counterparts, would not only support the principle of complementarity but also the right to appeal to higher courts/tribunals. The Islamic rules of justice do not prevent individuals from appealing to higher authorities. The complementarity function of the ICC demonstrates that justice not only has to be done, but it has to be done correctly and without any discrimination. This complementarity principle of the ICC can therefore also be compared with the provisions of the International Covenant on Civil and Political Rights, which reads that ‘everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’6 A clear example is when one reads about the notion of justice in the history of Islam and evaluates different cases of appeal regarding the decisions or judgments of other judges to the chief justice. According to the Quran, the sole justification for the appointment of judges is justice; it would be meaningless to have judges without justice. ‘O David, indeed We have made you a successor upon the earth, so judge between the people in truth and do not follow your own desire, as it will lead you astray from the way of Divine. Indeed, those who go astray from the way of the Lord will have a severe punishment for having forgotten the Day of Judgement.’7

4

Article 14 (1). Article 14 (2). 6 Article 14 (5). 7 Q, 38:26. 5

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It may therefore be valid to say that an Islamic international criminal court should base its judgment on the mediatorship function of the court in order to achieve justice. This is obviously conducive to the realisation of an international criminal legal order and an Islamic criminal order, including the ICC’s Statute. In fact, since the death of the Prophet of Islam, the creation of a just and moral Islamic society has been evaluated on the basis of divine law. This has been recognised as the central intention of Islamic theory. The Prophet and his successors are considered to represent the transcendentally active God on earth.8 Consequently, it is assumed that God has delegated authority to alwilãyat al-ilãhiyya or his delegates in order for them to rule over humankind.9 This interpretation is rather vague and leads to mistreatment of Islamic principles under the authority of different politicians or highly recognised religious clerics. Mohammad’s role was enlightenment and not the limitation of humankind to various clerics, priests, pastors, or, as told under Islamic practice, al-wilãyat. It is the al-wilãyat that may restrict the development of Islam in its proper definition. In other words, Islamic law does not encourage the proper understanding of justice through the understanding of other individuals. This obviously cannot be correct because each individual in Islam has his or her own ability to understand what God is or is not, and Islamic authorities must fully respect the entire theory of Islamic law and each individual’s personal attitudes towards the theory of Islam

1.1. Challenges to the Jurisdiction of an Islamic Criminal Court The philosophy of understanding God and justice in Islamic theory should not come by force and leadership. Individuals in Islam do not need a guardian, custodian, and supervisor. Each individual has to be his or her own guiding phenomenon and objective. S/he does not need other persons as advocates in order to understand her/his rights and duties. The duties under Islamic law are personal. This also applies to criminal wrongdoing. A person who commits crimes is personally, morally, and legally responsible for the consequences of the crime, including international crimes such as crimes against humanity, war crimes, genocide, rape, and torture. 8

Schedina, ‘The Just Ruler (al-sultãn al-ãdil),’ in Shite Islam: A Comprehensive Authority of the Jurist in Imamte Jurisprudence (New York, Oxford: Oxford University Press, 1988), p.121. 9 Id.

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According to the Statute of the ICC, the Court is obliged to respect its provisions. It has to make an administrative judgment on whether it has jurisdiction in a case brought before it. There are different criteria for this. In pure Islamic criminal law, the criteria for the recognition of the crime and for violations of the system of divine justice are, in the first instance, the duties of the individuals who have strong faith in Islamic law, Islamic justice, and Islamic criminal law. In the second instance, state authorities have the responsibility to submit the criminals to the administration of criminal justice. The ICC determines the admissibility of a case before its jurisdiction on its own motion. In Islamic criminal law, however, admissibility is an integral part of the individual’s duties, which are to stay on the side of the truth and confess to her/his crimes, particularly crimes against the providence of God or against mankind. Challenges to the admissibility of a case rest on individual faith and trust in the jurisdiction of the divine. An individual not only shows her/his empathy, but confidence in justice also grows in her/his action and affects her/his propensity to use the judicial criminal system. Therefore, the criminal conduct finally comes before a criminal court. Thus, faith in justice gives strong momentum to the admissibility of the case, which in turn helps truth to enter the courtroom. The court announces the positions of the victims, witnesses, and the accused persons and, with the assistance of the prosecutor and judges, these three groups combined reflect the meaning of judgment and ultimately of justice. This is why one should look at the institution of justice in different ways. To understand the notion of justice in divine law, it is essential to realise that the Quran was revealed against the cultural background of the tribal society of Arabia. Therefore, the moral exhortations to ‘establish justice’ in different codes refer to “the notion of ‘justice’ as an objective and universal moral truth, on the basis of which humankind in general can be called upon to respond.”10 In other words, “‘justice’ is a moral prescription that follows from a common human nature and is regarded as independent of particular spiritual beliefs, even though all practical guidance regulating interpersonal human relationships springs from the same source – namely, from God.”11 Ultimately, this ‘observation regarding the objective nature of ‘justice’ is important to bear in mind because the Quranic notion cannot

10 11

Id. pp.121. Id. pp.121-2.

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become intelligible without some reference to an objective state of affairs.’12 What is meant by this state of affairs in the context of Islamic justice or Islamic criminal justice or an Islamic international criminal court? Are there differences between cases brought before an Islamic international criminal court and cases brought before the International Criminal Court? The Statute of the Court concerning challenges to the jurisdiction of the Court or the admissibility of a case contain the clauses below. These clauses cannot be against the provisions of an Islamic international criminal court for the prosecution and punishment of ISIS members or any other Islamic leaders who commit serious crimes and escape prosecution and punishment. The admissibility of the case refers inter alia to the task of the complementarity of the ICC, and an Islamic criminal court or an Islamic international criminal court’s function should be similar in the proceedings of criminal justice. The clauses are: 1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17. 2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court 4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c). 12

Id.

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5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82. 7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17. 8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court: (a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6; (b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and (c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58. 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. 11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place.

However, questions of admissibility of a case to the ICC or under the jurisdiction of an Islamic international criminal court should be addressed with great care. By this, we mean that, under Islamic criminal theory, bringing a case before a criminal court should not be based on political intrigue by submitting some individuals to the jurisdiction of a criminal court and releasing other criminals by other means. In other words, a criminal case against a person, submitted by an individual, a group, or a government against another individual, group, or

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state, may not be accepted by an Islamic court based on the notorious criminal position of the applicants. A clear example for such a scenario is the case brought against Libyan leader Muammar Mohammad Abu Minyar Gaddafi, submitted with the clear political, economic, and military intentions of the big criminals. By unanimous adoption of Resolution 1970,13 the case was referred to the ICC’s Prosecutor by the United Nations Security Council. On 27 June 2011, Pre-Trial Chamber I issued warrants of arrest against several Libyans for crimes against humanity allegedly committed throughout Libya on three days in February 2011.14 On 22 November 2011, Pre-Trial Chamber I formally terminated the case against Muammar Gaddafi due to the assassination ordered by the United States’ intelligence agencies. Consequently, the theory of challenges to admissibility should be applied without intrigue in order to reach its main goals, i.e., impunity for the sake of justice. In particular, an Islamic court should apply the complete code of Islamic criminal law in the proceedings of justice in combination with the Statute of the ICC. Also, we should not forget the fact that Islamic law opens the door to forgiveness, and this window is also open to the practice of international criminal courts by means of restorative justice, amnesty, and reconciliation. Still, certain crimes, such as homicide, should be dealt with without delay in order to promote the notion of justice. This is also known as Adl in Islam. The concept of Adl in Islamic criminal justice is divided into five categories: I) The first category of Adl concerns the administration of justice. This means: when you judge among people, judge with justice. II) The second concept of Adl deals with the concept of justice in speech. It commands that you be just when you speak. III) The third concept of Adl concerns the concept of justice in practice, such as ransom. One should be fair in all payments, diyah, and all other matters. IV) The fourth concept of justice or Adl relates to the attribution of equality between man and woman, between all genders, and between rich and poor.15 V) The fifth notion of Adl relates to purity and transparency in human judgment.

13

On 26 February 2011. From 15 February 2011 until at least 28 February 2011. 15 Id. p.122. 14

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1.2. Obligations of Islamic Law to the ICC The ICC operates mostly based on the duties of the Office of the Prosecutor (OTP). The Prosecutor has the most insightful function in terms of the recognition of international crimes and international criminals. The Office of the Prosecutor has three main divisions. These are the Investigations Division (ID), the Prosecutions Division (PD), and the Cooperation Division (JCCD). The Investigations Division is tasked with the investigative activities of the Office, and the Prosecutions Divisions is based on its prosecutorial activities. Although both the ID and PD complement each other’s work, their work is carried out in combination with the provisions of the JCCD. As a consequence of this, the JCCD has two core mandates. First, it conducts the preliminary examination activities of the OTP. Second, it coordinates the necessary cooperation within the divisions of the ICC as well as the judicial assistance from the Prosecutor’s Office governing states, states members, and any international and regional organizations that are deemed necessary for the office to carry out its mandate concerning a case brought before the Court. There are certain criteria for the implementation of the main intentions of the ICC, i.e., prevention of impunity of accused persons. In other words, the duties of the OTP are similar to the provisions of an Islamic court and do not contradict Islamic norms. The entire OTP concentrates on the prevention of crimes against humanity, war crimes, genocide, and aggression. Islamic criminal law does the same. An Islamic criminal court cannot be successful without a good office of the prosecutor. The ICC also has similar principles. In other words, their requirements for the implementation of good proceedings in criminal justice are the same. This is particularly notable in the case of correct implementation of the principle of complementarity. Islamic law has a somewhat different complementarity function compared to the complementarity function of the ICC. The latter’s complementarity function is almost the same, but it traces its roots to different sources. In addition, the ICC is not obliged to respect the Islamic rules of the complementarity principle, Islamic rules of criminal law, or Islamic criminal justice; however, the Islamic states ought to respect the ICC rules. The ICC rules do not violate the Islamic principles of justice if their focus is authentic justice. This, in turn, is because the ICC í with its broad complementarity principle í focuses on the protection of human dignity, human personality, and human union as a whole. The intention of the ICC is to promote universal justice. Furthermore, the relevant principle of

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complementarity constitutes a jus cogens norm of community interest, which means all states should assist in its implementation. The Islamic complementarity principle does the same. It protects the principle of universality of human rights law and recognises a single murder as an offense against the dignity of all humankind. It says that ‘We decreed to the Children of Israel that if anyone kills a person - unless in retribution for murder or spreading corruption in the land - it is as if he kills all mankind, while if any saves a life it is as if he saves the lives of all mankind.’16 It is within this context that murder in Islam is defined as constituting a crime, particularly when committed on a large scale, systematically, or with a plan and in the form of crimes against humanity, war crimes, and genocide. Here, a recitation of a hadith, or one of various reports describing the actions, conduct, habits, or words of the Prophet, may be relevant. The hadith points out the fact that an act of murder may violate the fundamental principles of criminal law and should be of concern to all nations. It says that to instigate, cooperate, and assist/help all implies actual involvement in the killing of humankind. One day, the prophet was told that a Muslim had been killed and his corpse was lying on the street. When the Holy Prophet and his companions reached the site of the murder, he enquired as to who was the murderer. The people answered ‘we do not know.’ The Prophet was surprised and replied ‘a person has been killed among (you), and no one knows of his killer?’ He continued as follows: By the Almighty who appointed me with Prophethood, if all the creatures of the heavens and the earth participate in the murder of a human being and be pleased upon that, then God would surely involve them in punishment and send them all to Hell.

The hadith illustrates the fact that, if one knows the killer, one knows the planner, the one who is silent, the one who cooperated/supported, the one who assisted the killer, and the one who hides all of them í such a person may well be complicit in the commission of the crime. In other words, ‘If someone is killed in the east and one who lives in the west is pleased upon this killing, then he is a partner in this murder.’ This implies the universality principle of the principles of human rights and the basic principles of criminal law.

16

Q, 5:32.

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These principles include: a) prohibition against ex post facto law,17 b) the principle of de lege ferenda,18 c) the principle of de lege lata,19 d) the principle of nullum crimen sine lege,20 e) the principle of nulla poena sine lege,21 f) the principle of inviolability of the rights of individuals, g) the principle of nullum crimen nulla poena sine stricta,22 h) the principle of nullum crimen nulla poena sine lege scripta,23 i) the principle of conformity,24 j) the principle of humanization25 k) the principle of equivalence,26 and l) the application of the principle of proportionality.27 According to the ICC, there are seven basic reasons for the application of the principle of complementarity. These are: i) The principle protects the accused if s/he is prosecuted before national courts. This means protection of the rights of the accused and implementation of the principle of ne bis in idem (no punishment twice for the same criminal act in another country); ii) The principle denotes full respect for the validity of the international personality of states in the exercise of criminal jurisdiction over crimes committed within their territories. iii) The principle helps in the prevention of impunity and fosters greater respect for the principles of human rights law, because the ICC may not have time to deal with all serious international crimes, and the principle of complementarity calls upon the international obligations of the ICC; iv) The principle calls upon the legal and political obligations of states to prosecute crimes that have been seriously harmful to the international human community as a whole. This means the state in question is responsible for investigating and prosecuting alleged serious crimes.

17

Retroactive law. The law for future. 19 The law in force. 20 A conduct cannot be treated as criminal unless some rule of law has already declared it to be criminal and punishable as such. 21 No punishment without law. 22 Prohibition of inhuman sanction. 23 Carefulness of application of punishment in violation of unwritten law. 24 Opportunity to follow the law. 25 If other means of penalties are available. 26 Similar conduct should have similar punishment. 27 For all these principles see Farhad Malekian ‘Comparative Substantive International Criminal Justice’, p.23. 18

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v) A case is inadmissible before the ICC if a state authority is already dealing with the same case under its jurisdiction. vi) The ICC may also reject a case based on the fact that national authorities of a state have already investigated the same case and decided not to prosecute. vii) A case may also be inadmissible if it has already been prosecuted under a state’s national criminal system. In sum, an Islamic nation is obliged to respect international criminal rules, including Islamic international criminal law. It is also obliged to bring the perpetrators of grave crimes, such as crimes against peace, war crimes, and genocide, under its criminal jurisdiction for prosecution and punishment. In addition, an Islamic nation or state is also responsible for submitting them to an Islamic international criminal court or to the jurisdiction of the ICC if it is not capable of prosecuting offenders for one reason or another. Certainly, the prosecutor of an Islamic international criminal court should be fully competent to process cases brought before her/his office.

2. The ISIS Case “The strongest among you is the one who controls his anger.”28 The system of Islamic international criminal law, including a prospective Islamic international criminal court, like its original source, i.e., the Quran, is based on the specific understanding of the Islamic theory of justice, and this justice is obviously based on eradication of all acts that cause unnecessary suffering during peace- or wartime. The term “unnecessary suffering” was coined in the system of international humanitarian law in the mid-18th century, and it developed into the four Geneva Conventions of 1948 by way of different terminologies. Its development can also be observed within the framework of the Protocols of the Geneva Conventions. The serious criminal acts committed by a group called Islamic State, ISIS, or Daesh, obviously violate the system of international criminal law of Western and non-Western states29 and even the concept of an Islamic 28

The second source of the Islamic law. Matthew Lippman, “Islamic Criminal Law and Procedure: Religious Fundamentalism versus Modern Law.” 12 Boston College International and Comparative Law (1989), p.29. According to Professor Michel Chossudovsky “While Washington is accusing several countries of ‘harbouring terrorists’, America is the Number One ‘State Sponsor of Terrorism’.” For the question ‘who 29

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international criminal court. Their acts imply the existence of mens rea. Their widespread and grave violations may undoubtedly fall under the categories of crimes under Islamic international criminal law.30 They include war crimes, crimes against humanity, and genocide. In addition, their actions violate the criminal law of each country in which the crimes were carried out.31 As Mahatma Gandhi expressed it, the reason is very simple; they have misunderstood the message of Islamic theory: I wanted to know the best of the life of one who holds today an undisputed sway over the hearts of millions of mankind… I became more than ever convinced that it was not the sword that won a place for Islam in those days in the scheme of life. It was the rigid simplicity, the utter selfeffacement of the Prophet the scrupulous regard for pledges, his intense is behind the Islamic State Project?’, he argues realistically that ‘In a bitter irony, until July to 2014, the rebels of the Islamic State, formerly known as the Islamic State of Iraq and the Levant (ISIL) were heralded as Syria’s ‘opposition freedom fighters’ committed to ‘resorting democracy’ and unseating the secular government of Bashar Assad. And who was behind the jihadist insurgency in Syria? Those who ordered the bombing campaign are those who are behind the Caliphate Project. The Islamic State (IS) militia, which is currently the alleged target of a U.S.-NATO bombing campaign under a ‘counter-terrorism’ mandate, was and continues to be supported covertly by the United States and its allies. In other words, the Islamic State (IS) is a creation of S.S. intelligence with the support of Britain’s M16, Israel’s Mossad, Pakistan’s Inter-Services Intelligence (ISI) and Saudi Arabia’s General Intelligence Presidency (GIP), Ri’âsat Al-Istikhârât Al-‘Âmah. Moreover, according to Israeli intelligence sources (Debka) NATO in liaison with the Turkish High Command has been involved in the recruitment of jihadist mercenaries from the outset of the Syrian crisis in March 2011. In relation to the Syrian insurgency, the Islamic State fighters together with the Al Qaeda affiliated jihadist forces of the Al Nusrah Front are the foot soldiers of the Western military alliance. They are covertly supported by U.S.-NATO-Israel. Their mandate is to wage a terrorist insurgency against the government of Bashar al-Assad. The atrocities committed by Islamic State fighters in Iraq are similar to those committed in Syria. As a result of media disinformation, Western public opinion is unaware that the Islamic State terrorists have from the very outset been supported by the United States and its allies.’ Yemen. Michel Chossudovsky, The Globalization of War: America’s “Long War” against Humanity (Canada: Global Research Publishers, 2015), pp.34-35. Professor Michel Chossudovsky continues further that ‘U.S. sponsored Al Qaeda terror brigades (covertly supported by Western intelligence)’ have also been organised in Mali, Niger, Nigeria, the Central African Republic, Somalia and Yemen. 30 Frank E. Vogel, ‘The Trial of Terrorists under Classical Islamic Law’ 43 Harvard International Law Journal (2002), pp.53-64. 31 Id.

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devotion to his friends and followers, his intrepidity, his fearlessness, his absolute trust in God and in his own mission. These and not the sword carried everything before them and surmounted every obstacle. When I closed the second volume (of the Prophet’s biography), I was sorry there was not more for me to read of that great life.32

Considering the overall intentions of Islamic criminal law, there is no doubt that all acts by the Islamic State or ISIS are strongly condemned by the main source of the law, i.e., the Quran.33 This means that the provisions of Islamic law have been violated from different philosophical, sociological, cultural, and juridical points of view.34 For instance, the Islamic rule of law maintains that inequity or evil conduct is not permitted against any race or group.35 It says, “those who, if we give them power in the land, establish worship and pay the poor-due and enjoin kindness and forbid iniquity. And God’s is the sequel of events.” Consequently, ISIS members have viciously violated inter alia the law of protection of Islamic law:36 -

32

The rule of law of all golden civilisation,37or the Code of Hammurabi;38 The rule of law of sheltering every church, mosque, and the like; the rule of law protecting every Christian place of worship; the rule of law protecting every Christian house, monasteries, synagogues; the rule of law concerning the protection of every Muslim; the law and the rule of law governing the protection of every single child; the law and rules of the law regarding the protection of every single juvenile;

Mahatma Gandhi, statement published in “Young India”, 1924. Vogel, note 30. 34 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001). 35 Id. 36 Abdur Rahim, The Principles of Muhammadan Jurisprudence (Madras, 1911); M Abul-Fazl, Sayings of the Prophet Muhammad (New Delhi, 1980). 37 For instance, the crimes prohibited by sixth commandment. Consult Anthony Phillips, Ancient Isreal’s Criminal Law: A New Approach to the Decalogue (Oxford: Basil Backwell, 1970), p.83-84; See also Philip Berger Benny, Criminal Code of the Jews: According to the Talmud (New Jersey: The Law Book Exchange, LTD, 2005). 38 Id. p.87. 33

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the rule of law protecting Jewish places of worship; the rule of law protecting every Jewish house of worship; the rule of law regarding the protection of Jews, Christians, and Muslims; the rule of law sheltering every Muslim house of worship.

Maintaining the principles of justice is encouraged. Concerning the above protections, the relevant version of the Quran reads that ‘they are those who have been driven out of their homes unjustly, only because they said, Our Lord is God. If God did not repel the aggression of some people by means of others, cloisters and churches and synagogues and mosques, wherein the name of God is much invoked, would surely be destroyed. God will surely help him who helps His cause God is indeed powerful and mighty.’39 The Quran does not accept violations and condemns them if they occur. It says that ‘... do not take the life God has made sacred, except by right. This is what He commands you to do: perhaps you will use your reason.’40 ISIS’ criminal conduct has clearly violated the normative rules of war that different periods of Islamic influence have recommended to be respected. During the early revelation of Islam, it was ordered that all soldiers engaged in war ‘be just, break not your plighted faith, mutilate none, slay neither children, old men, nor women; injure not the date-palm nor burn is with fire, no cut down any fruit-bearing tree, slay neither flocks not herds nor camels except for food, perchance you may come across men who have retired into monasteries, leave them end their work in peace.’41 One of the grave violations perpetrated by ISIS members is their complete disregard for the principles and provisions of the International Covenant on Civil and Political Rights or the corpus juris of the four Geneva Conventions of 1949 and its two Protocols of 1977 concerning the rights of different groups. Their crimes may certainly be compared to the 39

Q, 22:40. Q, 6:151. 41 Noor ul-Amin Leghari, ‘The Concept of Justice and Human Rights in Islam’, in Gerald E. Lampe (ed.) Justice and Human Rights in Islamic Law (Washington: International Law Institute, 1997, pp.51-64, at 58. The order is similar to a Hadith. It says that “I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.” 40

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crimes of genocide committed in Srebrenica, Bosnia Herzegovina, as their conduct is systematically organised and their plans are systematically carried out.

2.1. ISIS and Mens Rea The concept of mens rea constitutes one of the most significant elements of criminal responsibility. It implies the guilty mind of an offender in Islamic criminal law. The law intends to prevent criminal acts. Consequently, a wrongful purpose or a criminal intent is considered a crime when it is combined with a physical element. Therefore, the acts of ISIS merely exhibit the guilty minds of its members.42 In Islamic criminal law, one of the basic elements of criminal responsibility is that the concept of a crime consists of both a mental and a physical element. The ISIS members’ awareness of the fact that their acts are criminal reinforces the state of mens rea and is therefore a mental element. Actus reus or all other actual criminal acts committed by the group individually or collectively are in themselves the physical element of the criminal conduct. The objective of the principle of mens rea was, in fact, one of the significant topics of discussion in the ad hoc committee. The committee’s task was to study the draft proposal for an international criminal court. According to the committee, the principle constitutes one of the general principles in the corpus of criminal law. The term mens rea was therefore chosen from among a considerable number of terms such as ‘intention,’ ‘culpa, dolus, or intentionally,’ ‘recklessly, or dolus eventualis,’ ‘general intention,’ and ‘knowingly.’ It resulted in the acceptance of the principle of the mental element in the Rome Statute. Regarding the mental element, Article 30 of the Statute, with an explanation for both ‘intent’ and ‘knowledge,’ provides that: 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; 42

For some views on beheading see Racehl Saloom, ‘Is Beheading Permissible under Islamic Law-Comparing Terrorist Jihad and the Saudi Arabian Death Penalty’, 10 University of California, Los Angeles Journal International Law & Foreign Affairs (2005), pp.221-224.

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(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.

This position implies the fact that the perpetrator has to act ‘with knowledge.’ For instance, in the definition of international crimes of genocide, the attack must be a widespread and systematic attack on a specific civilian population. In addition, some war crimes have to be carried out ‘wilfully.’ This is also based on the conclusions reached on elements of crime. Still, the guilty state of mind is not new, even in the common law legal system in which judges hold that an act alone cannot create criminal liability unless it was accompanied by a guilty state of mind. This does not necessarily mean, however, that one should look for the degree of mens rea in all criminal conduct of ISIS. This is based on the fact that certain crimes do not necessarily require mens rea, e.g., genocide. Although murder requires a malicious state of mind in common law legal systems, for example, this does not necessarily mean that we need to prove the malicious conduct for certain grave violations of the system of international criminal law or Islamic international criminal law. For instance, the entire organisation of ISIS is based on malicious intent, as was Nazism. We should not put aside the fact that the term mens rea implies general intent and should be distinct from specific intent. The latter is another term dealing with mens rea and denoting a particular state of mind. One may assert that specific intent to commit crime exists in all their criminal acts. This is regardless of how they interpret the theory of Islamic law. They have obviously acted knowingly, purposely, and even recklessly. The Security Council resolution correctly condemns the following: 1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks perpetrated by ISIL also known as Daesh which took place on 26 June 2015 in Sousse, on 10 October 2015 in Ankara, on 31 October 2015 over Sinaï, on 12 November 2015 in Beirut and on 13 November 2015 in Paris, and all other attacks perpetrated by ISIL also known as Daesh including hostage-taking and killing, and notes it has the capability and intention to carry out further attacks and regards all such acts of terrorism as a threat to peace and security; 2. Condemns also in the strongest terms the continued gross, systematic and widespread abuses of human rights and violations of humanitarian

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Still, in Islamic criminal law, like in the common law system, legislation sometimes creates criminal liability for the omission or commission of a specific act, without requiring a particular form of mens rea. Such rules of Islamic criminal law can also be seen in common law systems. The rules concern the concept of strict liability. A member of ISIS can be recognised as being criminal even if he claims that he had no intention of committing a crime, e.g., killing or rape. Thus, the plea that one had no knowledge of committing a crime does not help in the context of the committed crime. In other words, all voluntary acts are treated as criminal conduct, whereas involuntary acts may not be criminal if, for example, a person is forced to carry out certain criminal acts for the interests of ISIS under use of torture or other threatening measures. Yet, involuntary acts would have to be proven in an Islamic international criminal court.

2.2. Declaration of the Prosecutor of the ICC Concerning the alleged crimes committed by ISIS, Fatou Bensouda, the Prosecutor of the International Criminal Court, has stated:

43 Resolution 2249 (2015), Adopted by the Security Council at its 7565th meeting, on 20 November 2015. The resolution also reads that “Determining that, by its violent extremist ideology, its terrorist acts, its continued gross systematic and widespread attacks directed against civilians, abuses of human rights and violations of international humanitarian law, including those driven on religious or ethnic ground, its eradication of cultural heritage and trafficking of cultural property, but also its control over significant parts and natural resources across Iraq and Syria and its recruitment and training of foreign terrorist fighters whose threat affects all regions and Member States, even those far from conflict zones, the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh), constitutes a global and unprecedented threat to international peace and security.” The earlier resolutions of the Security Council are Reaffirming its resolutions 1267 (1999), 1368 (2001), 1373 (2001), 1618 (2005), 1624 (2005), 2083 (2012), 2129 (2013), 2133 (2014), 2161 (2014), 2170 (2014), 2178 (2014), 2195 (2014), 2199 (2015), 2214 (2015) and its relevant presidential statements. Although the resolution is clear in its message, it ignores many other serious facts, such as i) the reasons for the creation of the Islamic State, ii) the reasons why the relevant group has been successful; and iii) the reasons for the rapid development of the group in Iraq and Syria. The resolution seeks justice, but a one-eyed justice and not the whole truth.

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Since the summer of 2014, my Office has been receiving and reviewing disturbing allegations of widespread atrocities committed in Syria and Iraq by the so-called Islamic State of Iraq and al-Sham/Greater Syria ("ISIS" aka "ISIL", "Daesh" or "IS"). Crimes of unspeakable cruelty have been reported, such as mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property. The commission of the crime of genocide has also been alleged. In response to numerous inquiries about my Office's activities in relation to these allegations, I have decided to provide the following clarification. The atrocities allegedly committed by ISIS undoubtedly constitute serious crimes of concern to the international community and threaten the peace, security, and well-being of the region, and the world. They also occur in the context of other crimes allegedly committed by other warring factions in Syria and Iraq. However, Syria and Iraq are not Parties to the Rome Statute, the founding treaty of the International Criminal Court ("Court" or "ICC").44 Therefore, the Court has no territorial jurisdiction over crimes committed on their soil. 44

Different political ideas have been expressed about Syria. Some condemn the Syrian government for committing crimes, while the contrary views of others are continuously increasing. Regarding the former, see, for instance, see D. Julian Veintimilla, ‘Islamic Law and War Crimes Trials: The Possibility and Challenges of a War Crimes Tribunal Against the Assad Regime and ISIL, 49 Cornell International Law Journal (2016), pp. 497-519, available at http://www.lawschool. cornell.edu/research/ILJ/upload/Veintimilla-final.pdf (visited on 21 February 2017) For the latter, for instance, see the powerful statement of Eva Bartlett: Western media lies about Syria exposed (Canadian journalist Eva Bartlett), video available at https://www.youtube.com/watch?v=g1VNQGsiP8M (Visited on 21 February 2017); Eva Bartlett points out that “What I am writing, and what I’m reporting, and who I am citing are Syrian civilians whom I’ve encountered in Syria.’ ‘If people do not wish to hear the voices of Syrian civilians and if they want to maintain their narrative which is in line with the NATO narrative – which is in line with destabilizing Syria and vilifying the government of Syria and ignoring the overwhelming wishes of the people of Syria – then they do this by accusing me of spreading propaganda.’ ‘The fact that my writing is in line with the Syrian people…’ How We Were Mislead about Syria, available at https://ingaza.wordpress .com/(Visited on 21 February 2017); Eva Bartlett, ‘What’s Happening in Syria? The Media ‘Kills the Truth’, ‘Terrorism’ is Described as ‘Moderate Opposition.’’ (Global Research, February 05, 2017), Available at http://www.globalresearch .ca/whats-happening-in-syria-the-media-kills-the-truth-terrorism-is-described-asmoderate-opposition-eva-bartlett/5573114 (visited on 21 February 2017); Bruce Fein, ‘Hillary Clinton’s 5 lies about Syria, Terror Threat’, The Washington Times (25 October, 2016), available at http://www.washington times.com/staff/bruce-fein/ (Visited on 21 February 2017); Peter Koenig, ‘War Propaganda: Syria’s Destruction

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by the Lies of the Western Media. ‘Washington will Never let Go, Their Target is World Hegemony’, Global Research, available at http://www.globalresearch .ca/warpropaganda-syrias-destruction-by-the-lies-of-the-western-media-washington-willnever-let-go-their-target-is-world- hegemony/554 9508 (visited on 21 February 2017); Saving Syria’s Children – The Worst Case Of Fake News? (published February 19, 2017), available at https://off-guardian.org/2017/02/19/saving-syriaschildren-the-worst-case-of-fake-news/ (visi -ted on 21 February 2017); Cross Talk: ‘White Helmets, Really?’ with Vanessa Beeley, Eva Bartlett & Patrick Henningsen (13th November 2016), available at https://thewallwillfall.org/2016/11/13/cross talk-white-helmets-really-with-vanessa-beeley-eva-bartlett-patrick-henningsen/ (visited on 21 February 2017); See particularly the excellent analysis in https:// www.youtube.com/watch?v=EG6gb31 VJHA and https://www.youtube.com/watch ?v=I8mA0h7dCKI by Vanessa Beeley (visited on 22 February 2017).

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provide further clarity on the positions occupied by State Party nationals within the ISIS organisational hierarchy. I remain profoundly concerned by this situation and I want to emphasise our collective duty as a global community to respond to the plight of victims whose rights and dignity have been violated. ISIS continues to spread terror on a massive scale in the territories it occupies. The international community pledged that appalling crimes that deeply shock the conscience of humanity must not go unpunished. As Prosecutor of the ICC, I stand ready to play my part, in an independent and impartial manner, in accordance with the legal framework of the Rome statute.45

2.3. Barbarians Unlike the extreme theories of justice of ISIS, Islamic law protects the principle of the right to life, and saving a person’s life is equal to saving the life of all of mankind.46 Contrary to what is understood by some narrow minded Islamic jurists, Islamic theories prohibit the killing of individuals for any reason and to any degree. In addition, the Quran plainly points out: ‘Oh you who believe, do not enter other houses except yours without first seeking permission.’47 This verse clearly indicates that you cannot enter other houses unless permission is granted. It also maintains that, even if you have legal 45

The statement of the Prosecutor (International Criminal Court, 8 April 2015). The Office of the Prosecutor of the ICC conducts impartial and independent investigations concerning international crimes of genocide, crimes against humanity and war crimes. The Office investigates in Uganda; Democratic Republic of the Congo; Darfur, Sudan; Central African Republic; Kenya; Libya; Côte d'Ivoire and Mali. The Office is also dealing with preliminary examinations relating to the situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq (alleged abuses by UK forces), Nigeria, Palestine and Ukraine. The background of the ICC is described in the following words “The International Criminal Court is governed by the Rome Statute, which entrusts the Court with a specific and defined jurisdiction and mandate. A fundamental feature of the Rome Statute (articles 12 and 13) is that the Court may only exercise jurisdiction over international crimes if (i) its jurisdiction has been accepted by the State on the territory of which the crime was committed, (ii) its jurisdiction has been accepted by the State of which the person accused is a national, or (iii) the situation is referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter.” Available https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat08-04-2015-1, visited on 1 February 2014. 46 See index the right to life. 47 Q, 44:27.

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permission, you should still obtain permission from the owner of the house. Taking this into consideration, the merit of privacy is considered to be very essential in Islam, in particular when related to the questions of life and the taking by force of the owners or the kidnapping of their children. Judge Weeramantry asserts that serious violations of human rights are no longer the matter of a group, organisation, or state entity. They are a matter for all states. ‘Human rights and humanitarian treaties do not represent an Exchange of interests and benefits between contracting States in the conventional sense, and in this respect may also be distinguished from the generality of multilateral treaties, many of which are concerned with the economic, security or other interests of States.’48 Weeramantry goes further and clarifies that ‘human rights and humanitarian treaties represent, rather, a commitment of the participating States to certain norms and values recognized by the international community.’49 In other words, ‘the personality of the sovereign is not the essence of such an agreement. Multilateral treaties are most often concluded with the object of protecting and benefiting the international community as a whole, and for the maintenance of world order and cooperation, rather than of protecting and advancing one particular State's interests.’50 A parallel argument may be drawn concerning apostasy, which has been recognised by some jurists as condoning the death penalty. However, their interpretation should be considered invalid, since the theory of Islamic law is not to kill, and any opinion that apostasy should be subject to the death penalty is therefore null and void. Such a conclusion by any jurist contradicts the principles of the Human Rights Committee’s comments concerning the right to life. The Committee puts forth the following in paragraph 5 of its General Comment 22: The Committee observes that the freedom to "have or to adopt" a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief. Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or 48

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). Separate Opinion of Judge Weeramantry, http://www.icj-cij.org/docket/files/91/7361.pdf, 55. 49 Id. 50 Id.

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penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article 18.2. The same protection is enjoyed by holders of all beliefs of a non-religious nature.

Moreover, there have been different opinions on the value of the viewpoint of those who apply the death penalty for apostasy. For example, leading Islamic jurists have expressed positive views and stated that a Muslim apostate should not be sentenced to death and that application of the death penalty is against the fundamental principles of Islamic law. The Quran clearly encourages one to ‘invite people to the path of Lord with wisdom and fair exhortation and reason with them in a way that is best. Your Lord knows best those who have strayed away from His path, and He knows best those who are rightly guided.’51 The above verse serves as the basis for the fair treatment of apostasy and the prohibition of applying the death penalty. In other words, the right to life is a basic natural right of all human beings and cannot be treated differently by an Islamic or any other legislation. This conclusion accentuates the brutality of arguments presented by ISIS members or any other Islamic leaders authorised to apply the death penalty to innocents or criminals.

2.4. War Crimes by ISIS The branches of Islamic philosophy are commonly divided into three major groups sunni, shia, and sufi. They prohibit all forms of killing, except in cases of absolute necessity such as the ‘necessity of self-defence’ and that has to be without any reasonable doubt. The principle of proportionality is still central to cases of absolute self-defence. ‘This Islamic concept which prohibits the killing of civilians is broadly accepted by the Islamic legal authorities, Sunni and Shi’a alike. It must be stressed that this concept, derived from the primary sources of Islamic Shari’a, is settled and not to be contradicted by subsequent ijtihad.’52 Furthermore, ‘Islamic States have consistently condemned all terrorist acts, including

51

Q, 16:125. Adel Maged, ‘Arab and Islamic Shari’a Perspectives on the Current System of International Criminal Justice’ International Criminal Law Review 8 (2008) 477– 507, at 489-90. 52

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those perpetrated by states, directly or indirectly, which spread violence and terror and aim at destabilizing countries and communities.’53 The ISIS groups’ criminal actions should each be considered individually and collectively under Islamic international criminal law or according to the definition of war crimes under the law of the International Criminal Court (ICC). As long as there is no armed conflict, serious crimes cannot be identified as war crimes. This is one of the basic principles for the recognition of war crimes. This principle also applies to international and non-international armed conflicts. As soon as there is a conflict waged by armed forces, the Geneva Conventions and Protocols are applicable to all parties in the war. In practice, it means the conflicting parties must respect certain international conventions or customary obligations in times of hostility. In other words, the core of the International Humanitarian Law of Armed Conflict applies to all types of armed conflict, regardless of whether they are national, regional, or international. The relevant regulations are provided in Common Article 3 of the 1949 Geneva Conventions, which reads: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 53

Adel Maged, ‘Arab and Islamic Shari’ah Perspectives on the Current System of International Criminal Justice’ International Criminal Law Review 8 (2008) 477– 507, at 489-90.

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(2) The wounded and sick shall be collected and cared for.

Undoubtedly, the provisions of the Common Article above are also applicable to Islamic international criminal law, including an Islamic international criminal court. There are practically no serious discrepancies between what it called the Statute of the ICC and the statute of a hypothetical Islamic international criminal court. The main interests and the core crimes are the same, with the difference that it would be a good idea to apply them within a pure Islamic theory of justice, familiar with Islamic cultural attitudes.

2.5. Islamic Core Principles of Humanitarian Law The corpus of Islamic humanitarian law of armed conflict consists of four basic principles for the protection of civilians. Jurists first discuss the principle of proportionality. This principle protects civilians and their objects from unlimited armed use of force. Islamic doctrines also confirm the principle of distinction, constituting the second principle. This principle recognises the difference between civilians and combatants. The third principle is the principle of unnecessary suffering. It demands the prevention of unnecessary suffering of all conflicting parties. This principle includes but does not exclude the use of certain conventional weapons that may cause unnecessary suffering or have indiscriminate effects on combatants. The fourth principle is military necessity. This principle permits military actions as long as they do not violate the security of natural law and the rights of man. The brutal criminal conduct by ISIS has obviously violated the Four Geneva Conventions of 1948 and their Protocols of 1977. These violations constitute grave violations. One may summarise the following violations under international criminal law and justice, which would certainly also be violations of the rules of an Islamic international criminal court. They are quoted in the following: Grave breaches specified in the four 1949 Geneva Conventions generally are: i) wilful killing; ii) torture or inhuman treatment; iii) biological experiments; iv) wilfully causing great suffering; v) causing serious injury to body or health; vi) extensive destruction and appropriation

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54

Articles 50, 51, 130,147 respectively. Articles 130 and 147 respectively. 56 Articles 147. 57 Articles 11 and 85. 55

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b) unjustifiable delay in the repatriation of prisoners of war or civilians; c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination; d) attacking clearly recognised historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given, causing as a result extensive destruction thereof when such objects are not located in the immediate proximity of military objectives or used by the adverse party in support of its military effort; e) depriving a person protected by the Conventions or by Protocol l of the rights of fair and regular trial.

The list of grave breaches stated in the Geneva Conventions and its Protocols are also followed in the Statutes of ad hoc international criminal tribunals. Clear examples are the ICTY and ICTR, including their significant contributions to the system of international criminal law and criminal justice. It would be very difficult to prove that these crimes do not fall under the notion of an Islamic international criminal court. For instance, the provisions of the Statute of the ICTY are identical with most provisions in the body of Islamic international criminal law. Examples are a) wilful killing; b) torture or inhuman treatment; c) wilfully causing great bodily suffering; d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; e) compelling a prisoner of war to serve in the forces of a hostile power; f) unlawful deportation or transfer or unlawful confinement of a civilian; or g) taking civilians as hostages.58 All these criminal acts have in fact been committed by ISIS members. Again, it may therefore be realistic to assert that violations of the laws or customs of war have been very frequent in the practice of the relevant group (ISIS). They may include and not exclude a) employment of sharp, dangerous weapons, poisonous weapons, or other weapons calculated to cause unnecessary suffering. ISIS, in particular, is suspected of using unlawful weapons against Kurds. b) The wanton destruction of cities, towns, or villages or devastation not justified by military necessity has been one of the systematic intentions of ISIS’ brutal conduct. c) Attacks, by whatever means, of undefended towns, villages, dwellings, or buildings have been systematically committed by ISIS members. d) Seizure of, destruction of, or wilful damage to institutions dedicated to religion, charity, and education, the arts and sciences, historic monuments, and works of art and science have been widespread and been based on 58

Article 2 of the Statute of the ICTY.

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previous plans. e) Plundering of public or private property has been carried out systematically and by the use of brutal force and brutally aggressive behaviour.59 Here, the question remains, however, as to which organ or organs delivered such unlawful deadly weapons to ISIS. It may be necessary to state in this context that the very conservative and unrealistic interpretations of Islamic law or Shariah by certain Islamic clergies or those ordained to issue harsh deductions within the legal structure of Islamic theory (and who are also impractical, inferior religious leaders) have been one of the essential reasons for the genesis of ISIS. Therefore, the obstacle of the assessment of hardliners together with other international political laundering has caused serious practical difficulties in differentiating between true Islamic theory and entirely terrorist views. This violates the nature of Islamic human rights principles.

2.6. Crimes against Humanity by ISIS As we have demonstrated elsewhere, the concept of crimes against humanity is deeply rooted in the original concept of Islamic international criminal law, including an Islamic international criminal court. The fact is that Islamic law encourages humanity and is very much against all types of violations of the dignity of man – be they Muslims or non-Muslims. A quick survey of the basic rules for the recognition of crimes against humanity in both legal orders shows that there is a considerable amount of evidence to prove that ISIS has seriously violated the law of both international legal systems. It is therefore accountable before an international criminal court/Islamic international criminal court.60 The 59

Article 3 of the Statute of the ICTY. Professor Sergey Sayapin provides the following elements for the establishment of an ad hoc international criminal tribunal for Daesh. According to him: “i) the legal basis for such a tribunal should combine elements of secular (i.e. customary) international criminal law and procedure – in particular, as far as the rights of victims and defendants are concerned – and of relevant substantive and procedural rules of Islamic international criminal law; ii) no less that 50 per cent of the tribunal’s judges, prosecutors and defence lawyers must be scholars and practitioners of Islamic criminal law, in order for the tribunal to be credible in the eyes of Islamic communities. The other key vacancies could be filled by lawyers from other legal traditions; iii) the seat of the tribunal should, ideally, be in the Middle East, both for practical (proximity to victims, witnesses and evidence) and symbolic reasons (the seat of the Nuremberg Tribunal was highly symbolic, because it was in an important centre of the defeated Nazism – and the tribunal adjudicating on the basis of Islamic law should not be too distant from the cradle of Islam); iv) it goes without saying that Arabic – Muslims’ sacred language and a 60

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members of the group should be brought, individually, before a court for prosecution and punishment. As presented in other sections, the list of crimes against humanity are crimes that are also condemned in Islamic international criminal law. In other words, almost all crimes identified as crimes against humanity in different international criminal courts/tribunals are applicable in an Islamic international criminal court against the members of the criminal organisation ISIS. I therefore cite them in the following order of presentation: The Rome Statute, Article 7(1) recognises any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender grounds as defined in paragraph 3 of this article, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.61 The Statute of the International Criminal Tribunal for Rwanda (ICTR), Article 3 also contains the above list of crimes against humanity. The Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), Article 5 recognises the following crimes when committed in armed conflict, whether international or domestic in character, and when directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f)

predominant language in the Middle East – should be among the tribunal’s official and working languages; and v) the tribunal could be established on the basis of a treaty to be concluded by interested States (both within and outside the Middle Eastern region), or on the basis of a Security Council resolution, and could be cofinanced by the United Nations and from contributions by interested States.” Sergey Sayapin, A “Hybrid” Tribunal for Daesh? Blog of the European Journal of International Law (May 4, 2016), available at http://www.ejiltalk.org/a-hybridtribunal-for-daesh/ (visited on 6 February 2017). 61 See also section on 6.7.2.5 No Policy of Widespread Attack.

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torture; (g) rape; (h) persecution on political, racial and religious grounds; (i) other inhumane acts. The Statute of the Special Court for Sierra Leone (SCSL), Article 2 also contains the above paragraphs/statements. The International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind (1996), Article 18 similarly recognises crimes against humanity. It states that any of the following acts are crimes when committed in a systematic manner or on a large scale and instigated or directed by a government or by any organization or group: (a) Murder; (b) Extermination; (c) Torture; (d) Enslavement; (e) Persecution on political, racial, religious or ethnic grounds; (f) Institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; (g) Arbitrary deportation or forcible transfer of population; (h) Arbitrary imprisonment; (i) Forced disappearance of persons; (j) Rape, enforced prostitution and other forms of sexual abuse; (k) Other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm. One may assert that most crimes committed by ISIS have ended in various forms and degrees of murder – constituting the most heinous crimes carried out in the name of Islam. This is the most cruel crime in Islamic criminal law, namely the act of killing a person by one or more persons. The conduct is seriously evil, since it is a serious affront to the spirit of human beings. Some of the Quranic Codes seriously forbidding acts of murder are the following: For that cause We decreed for the Children of Israel that whosoever kills a human being for other than manslaughter or corruption in the earth, it shall be as if he had killed all mankind, and whoso saves the life of one, it shall be as if he had saved the life of all mankind. Our messengers came unto them of old with clear proofs (of God's Sovereignty), but afterwards lo! Many of them became prodigals in the earth.62 But whoever kills a believer intentionally - his recompense is Hell, wherein he will abide eternally, and God has become angry with him and has cursed him and has prepared for him a great punishment.63 Come, I will recite unto you that which your Lord hath made a sacred duty for you: That ye ascribe no thing as partner unto Him and that ye do good to parents, and that ye slay not your children because of penury - We provide for you and for them - and that ye draw not nigh to lewd things 62 63

Q, 5:32. Q, 4:93.

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whether open or concealed. And that ye slay not the life which God hath made sacred, save in the course of justice. This He hath command you, in order that ye may discern.64 And slay not the life which God hath forbidden save with right. Whoso is slain wrongfully, We have given power unto his heir, but let him not commit excess in slaying. Lo! he will be helped.65

It is essential to mention here that, due to the provisions of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, ISIS members cannot and should not be exonerated from their brutal criminal conduct for any reason or to any degree.66 Article 1 of the Convention reads that ‘No statutory limitation shall apply to the following crimes, irrespective of the date of their commission.’67 Each individual under Islamic criminal law or Islamic international criminal law is responsible for her/his own internationally wrongful conduct, and therefore a person cannot escape the concept of international criminal responsibility by referring to a superior order. The revoking principle of impunity is null and void.

2.7. Genocide or Quasi-Genocide by ISIS A well-known hadith by the Islamic Prophet clearly condemns the criminal conduct amounting to genocide or quasi-genocide by ISIS. It says ‘Pity is the attribute of the great ones; if you kill, kill justly.’68 Likewise, the Quran demands justice and condemns genocide. In international criminal law, genocide is one of the most notorious international crimes.69 The 64

Q, 6:151. Q, 17:33. 66 Adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968. It entered into force on 11 November 1970, in accordance with article VIII. For the Convention see appendix. 67 While it is true that the provisions of the Convention deal with the Nuremberg principles, the very high intention of the Convention may also be applied to the new legal system of international criminal law. 68 Muslim, Sahih, Istanbul, Vol. 6, p.72. 69 Consult Farhad Malekian, ‘Armenian Genocide and the Questions of Responsibility of the Turkish Government,’ House of Commons Conference on the Armenian Genocide, Armenian Solidarity, British-Armenian All-Party Parliamentary Group, No Security Publication (2007), 31-9; S.B. Shah, ‘The Oversight of the Last Great International Institution of the Twentieth Century: The International Criminal Court’s Definition of Genocide,’ 16 Emory International Law Review 351 (2002); Machteld Boot, Genocide, Crimes against Humanity, War Crimes: Nullum 65

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crime enjoys universal jurisdiction, creating the right for any state to bring the perpetrators before its criminal court. Although recognition of genocide as an international crime is rather new from the perspective of terminology, it has been a fact since the advent of human civilisation.70 The philosophy is quite simple.71 One group wishes to eradicate another group. Alternatively, one race intends to completely remove another.72 Usually, powerful political parties commit genocide against another party or group, and it is also committed in complicity with other nations. For instance, it would be very unfair to say that the genocide committed against the German Jewish population was solely the act of Germans. Many other nations/states were complicit in the commission of Crimen Sine Lege and the Subjective Matter of Jurisdiction of the International Criminal Court (2002); M. Kelly, ‘The Tricky Nature of Proving Genocide Against Saddam Hussein before the Iraqi Special Tribunal,’ 38 (3) Cornell international law journal (2005), pp. 983-1012; M. Newton, ‘The Iraqi Special Tribunal: A Human rights Perspective,’ 38 (3) Cornell International Law Journal (2005), pp. 863-897; See Richard Falk, Slouching Toward a Palestinian Holocaust, www.transnational.org/Area…/Falk_Palestine Genocide.html, 20 October 2010; H. Ball, Prosecuting War Crimes and Genocide: The Twentieth Century Experience (1999); Farah Hussein, ‘A Functional Response to International Crime: An International Justice Commission’, St. John’s Law Review (1996); William A. Schabas, Justice, ‘Democracy and Impunity in Post Genocide Rwanda: Searching for Solutions to Impossible Problems’, 7 Criminal Law Forum (1996), p. 523; Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (2001); Peter Uvin, ‘Difficult Choices in the New Post-Conflict Agenda: The International Community in Rwanda after the Genocide’, 22: 2 Third World Quarterly (2001), pp. 177-189; Paul Webster, France Denies, ‘Arming Hutus for Genocide’, Guardian Weekly (London, 18.1.1998); John A. Berry & Carol Pott Berry, Genocide in Rwanda (1999); Christopher Browning, The path to genocide: Essays on Launching the Final Solution (2002); Napoleon Abdulai (ed.), Genocide in Rwanda (Africa Research & Information Centre, 1994); Michael N. Barnett, Eyewitness to a Genocide: The United Nations and Rwanda (2002); Belgian Senate, Parliamentary Commission of Inquiry concerning Rwanda / Commission d’enquête parlementaire concernant les événements du Rwanda, Report/Rapport, Brussels/Bruxelles, 6.12.1997. Laurence Burgorgue, Larsen (ed.), La repression internationale du genocide rwandais, (2003); Jacques Castonguay, Les Casques Bleus au Rwanda,(1998); Jean Pierre Chrétien, Le défi de l’ethnisme: Rwanda et Buruni, 1990 - 1996, (1997). 70 Niaz A Shah, Islamic Law and the Law of Armed Conflict: The Conflict in Pakistan (Great Britain: Rutledge Research in the Law of Armed Conflicts, 2011), pp.4, 31-59. 71 Id. 72 Id.

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the crime against innocent Jews, whether by selling weapons or through money laundering. In any event, for recognition of a crime as genocide, certain elements seem to be necessary within the framework of international criminal law.73 Similarly, the statutes of different international criminal courts or tribunals have certain criteria for the recognition of the crime. The concept of the crime of genocide was first drafted into the provisions of Article 2 of the 1948 Convention on Genocide. The article defines genocide as any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, e.g., (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children from the group to another group. The United Nations Commission report on brutal conduct in Iraq and Syria confirms the extent of the commission of the crime of genocide by members of ISIS. This has also been confirmed in a number of governmental discussions. Ian Blackford from the Scottish National Party raises the question of the crime of genocide by the Daesh in the following words: Why have the UK Government been silent and why has no action been taken? The Foreign Secretary has said that the Government support the efforts of the International Criminal Court to end impunity for the most serious crimes of international concern by holding perpetrators to account, but the Court has to be enabled to do that, and the UN Security Council has to provide that enablement. We keep hearing about the importance of the UK’s membership of the Security Council, so today is the United Kingdom’s chance to show leadership and to take action—to stand up for Ekhlas and to respond to her plea for help for all those who have suffered. Are we going to do the right thing in 2016, just as we did in 1942, or are we just going to stand back, wring our hands and watch as Daesh reaps its

73 The recent brutal crimes were committed against vulnerable populations in northern Rakhine State by the Burmese government’s armed forces. See Burma: Aid Blocked to Rakhine State, Humanitarian Groups, Journalists, and Rights Monitors Need Access, available at https://www.hrw.org/news/2016/10/21/burmaaid-blocked-rakhine-state, visited on 4 February 2017.

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In addition, the Human Rights Council believes that ISIS members are systematically committing acts of the international crime of genocide.75 As discussed in the relevant sections of this book, the acts are a particular type of violation, which requires intent. It is therefore significant to know whether or not a series of criminal acts committed by the members of ISIS/Daesh count as genocide or quasi-genocide. With the term “quasi-genocide,” I am referring to acts that may not constitute genocide against Muslims by Muslims or against Christians by 74

Daesh: Genocide of Minorities (20 April 2016), available at https://hansard. parliament.uk/commons/2016-04-20/debates/16042036000001/DaeshGenocideOf Minorities (visited on 7 February 2017). 75 “ISIS has committed the crime of genocide as well as multiple crimes against humanity and war crimes against the Yazidis, thousands of whom are held captive in the Syrian Arab Republic where they are subjected to almost unimaginable horrors. The present report, which focuses on violations committed in Syria, is based on 45 interviews with survivors, religious leaders, smugglers, activists, lawyers, medical personnel, and journalists. Considerable documentary material was used to corroborate information collected by the Independent International Commission of Inquiry on the Syrian Arab Republic. ISIS has sought to destroy the Yazidis through killings; sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm; the infliction of conditions of life that bring about a slow death; the imposition of measures to prevent Yazidis children from being born, including forced conversion of adults, the separation of Yazidis men and women, and mental trauma; and the transfer of Yazidis children from their own families and placing them with ISIS fighters, thereby cutting them off from beliefs and practices of their own religious community, and erasing their identity as Yazidis. The public statements and conduct of ISIS and its fighters clearly demonstrate that ISIS intended to destroy the Yazidis of Sinjar, composing the majority of the world’s Yazidis population, in whole or in part. In the present report, the Commission has made wide-ranging recommendations to the United Nations, the Governments of Syria and Iraq, and the wider international community concerning the protection of and care for the Yazidis community of Sinjar. While noting States’ obligations under the Genocide Convention, the Commission repeated its call for the Security Council to refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction.” Human Rights Council, Thirty-second session, Agenda item 4, Human rights situations that require the Council’s attention, “They came to destroy”: ISIS Crimes Against the Yazidis, A/HRC/32/CRP.2, Advance Version (Restricted 15 June 2016 ). Available at http:// www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_e n.pdf, visited on 4 February 2014.

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Muslims. The criminal conduct has to have been proven in an Islamic international criminal court and evaluated by many conventional, customary, and case laws of international criminal tribunals, such as the International Criminal Tribunal for Rwanda (ICTR) or the International Criminal Tribunal for Yugoslavia (ICTY).76 Evidence may well prove, however, that the relevant group has seriously committed the crime of genocide.77 As noted elsewhere, the main characteristic of Islamic international criminal law, an Islamic international criminal court, and Islamic national criminal law is recognition of any criminal intent as a crime against the entire human civilisation or the essence of man. It is based upon this recognition that the crime of genocide is rooted in the main substance of Islamic law, and therefore it may be incorrect to assert that the group has not committed the crime of genocide or quasi-genocide. The latter applies to the crime of genocide but means a soft genocide and not a hard genocide. This significant differentiation in Islamic law highlights its particular task when compared to the system of international criminal law. It shows its efficiency concerning the identification of the crime of genocide regarding ISIS’ criminal conduct. The judgments of the ICJ also imply the fact that genocide denotes the gravity of certain brutal conduct, whether committed in conspiracy or by attempt, complicity, and direct public incitement to commit genocide. All these malicious acts depend on the intent with which they were carried out, with the purpose of achieving a certain result. Likewise, Security Council Resolution 2253 of December 2015, which was unanimously adopted by the Council under the provisions of Chapter VII of the UN Charter, implies the criminality of the group. The resolution refers to the terrorist conduct of the Daesh. The case could be prosecuted 76

Id. Fiona Bruce from Conservative Commons, Congleton (2010) expresses that “Genocide is a word of such gravity that it should never be used readily. It is rightly known as the “crime above all crimes”. For that reason, it is incumbent on us to prevent the term from being devalued or overused. However, such caution must not stop us naming a genocide when one is taking place. The supporters of the motion are here to insist that there is overwhelming evidence that the atrocities of Daesh in Syria and Iraq should be recognised for the genocide they are and considered as such by the UN Security Council and the International Criminal Court. It will support similar resolutions of other leading international and legislative bodies. There are only two possibilities for Members here. If the House is not satisfied that genocidal atrocities are being perpetrated, we must not pass the motion, on which I am minded to test the will of the House, but if colleagues believe that the depravities of Daesh are being undertaken with genocidal intent, we have already waited far too long to recognise it.”77 77

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by an Islamic international criminal court based on the fact that the crimes were committed against a number of groups, such as Yezidis, Christians, Shia Muslims, Kurds, and Sunni Muslims. The time is obviously right for the establishment of an international Islamic court for the prosecution of such atrocities committed against humanity. 2.7.1. A List of Genocide Crimes Committed by ISIS The Quran says ‘O Messenger call people to the way of life God has laid down for you. Pursue what is exactly right in every matter as you are commanded by God. Do not follow their desires and caprices who follow other ways …I believe in whatever Book God has sent down; and I am commanded to bring about equity among you without discrimination of race or rank by birth or by wealth or by power. God is our Lord and your Lord. To us are accounted our deeds, and to you, your deeds: let there be no contention between us and you: God will bring us all together and settle any difference between us and you.’78 The above theory simply means Islamic law does not support ISIS’ criminal conduct and condemns it altogether. ‘And to God belongs whatever is in the heavens and whatever is in the earth - that He may recompense those who do evil with the penalty of what they have done and recompense those who do good with the best reward.’79 The crimes committed by ISIS cover a considerable number of areas that cannot be ignored by any means. These include the system of international criminal law, Islamic international criminal law, and Islamic international criminal justice. Here, I am referring mostly to the core crime or crimes that is older than civilisation itself, i.e., the crime of genocide. Some of the reasons that ISIS is committing systematic and widespread genocide against certain groups, such as Yezidis, are found in the list in below. This list is not exhaustive, however, and in-depth research has to be carried out to prove criminality at national, regional, and international levels. According to the essence of this volume, the following crimes are systematically committed with full intention of killing: 78 79

targeting of terror attacks against Muslims barbarity against Sunni Muslims brutality as systematic routine propensity to evil as an unavoidable characteristic of the criminal organisation

Q, 42:15. Q, 53:31.

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targeting Islamic or Christian minorities for brutal attacks well thought-out brutality structured beheading planned rape ordered torture structured destruction isolating certain age groups from certain other age groups in order to carry out unlawful criminal conduct separating by force certain young children from their families, e.g., boys over the age of 12 years imposing and destroying by force the identity of the group separating, transferring, and forcing persons to leave their home, going from one country to another psychologically influencing the family members of the group by killing their children, mothers, fathers, and relatives killing women of old age forcing women and girls to participate in a suicide bombing beheading men, women, and children torturing men, women, and children cutting the dead bodies into pieces humiliating the dead raping women and girls forcing girls to marry ISIS members selecting girls and women from their houses beating them for any purpose, including sexual services brutal, cruel, violent, and savage rape forcing women and girls to engage in anal sex when possible, which is against the rules declared by heads offices of the ISIS announcing fatwa on sexual violence creating a rape handbook raping very young girls seriously injuring girls or women based on repeated rape death of girls or women because of bleeding forcing women into sexual slavery killing children of women who attempt to escape killing the captured in lines killing the captured in shootings killing the captured by means of water torture killing men and women using cars killing the captured using military tanks severely abusing the captured

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barbarous knife killing unlawful use of weapons unlawful bombing creating extreme fear dismembering children with chainsaws raping mothers after killing their children severe penalties for escaping brutal conduct increasing suicide rates among captives because of extremely brutal actions against them selling women in markets, e.g., in Souk Sabaya, in Raqqah, Aleppo, Homs, Hasakah and Dayr Az- Zawr giving women and girls as gifts selling the same woman or the same girl over 100 times forcing women and girls to take off their head covering forcing women and girls to marry several men at different times forcing women to show other parts of their bodies forcing women to walk as though on a catwalk beating women or girls with wooden sticks if they refuse to obey orders announcing women and girls as their property raping women and girls with their bodies tied up raping family members in front of other family members threatening women and girls with severe injury if they do not obey threatening women or girls with gang rape implementing gang rapes of women and girls who try to escape selling thousands of women into enslavement executing women or girls who refuse to participate in sexual intercourse separating girls over eight years of age from their mothers holding thousands of women and girls in locations that have no capacity for large groups forcing women to drink dirty water and eat spoiled food causing sickness of women and girls with contaminated food and water providing no medical care taking gold and valuable belongings taking their electronic devices separating children from their mothers forcing men to become ISIS members forcing children to become ISIS soldiers killing those who refuse to accept ISIS conditions

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forcing captives, including men and boys, to take part in different forms of physical labour forcing the members of the group to pray executing men and children who refuse to pray slave auctions online pricing of women and girls putting out personal information about the goods (women/girls) for sale not giving priority to the sick in hospitals taking the body organs of captives transplanting organs without consent committing similar brutal acts as those in the above sub-sections against groups other than Yezidis destruction of public buildings destruction of private houses destruction of hospitals devastation of farms devastation of all forms of material occupation by force of the movable properties of groups occupation by force of public buildings destruction of schools brutal implementation of all of the sections above in Syria and Iraq

2.7.2. Childrencide 2.7.2.1. Legislative Principles of Humanitarian In 1758, Vattel already described the necessity for belligerents to respect the rules of war governing the rights of children, women, and the elderly. He noted the following: Women, children, feeble old men, and the sick are to be counted among the enemy, and a belligerent has rights over them, in as much as they belong to the Nation with which he is at war, and because, as between Nations, rights and claims affect the body of society, and with it all its members. But, these are enemies who offer no resistance, and consequently the belligerent has not right to maltreat or otherwise offer violence to them, much less to put them to death. There is to-day no Nation in any degree civilized which does not observe this rule of justice and humanity. If occasionally an enraged and uncertain soldiers goes so far as to outrage female virtue, or to massacre women, children, and old men, the officers regret such excesses and endeavour to check them, and a wise and human general even punishes the offenders when he can. But, if women wish to be spared they must

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Islamic philosophy, Islamic criminal justice, Islamic international criminal law, and an Islamic international criminal court are all in favour of the rights of the child. The notion of Islamic international criminal justice strongly condemns any act committed against the rights of the child in peace- or wartime.81 In particular, the corpus of international humanitarian law of armed conflict in both legal systems of international criminal law protects the rights of the child, including children who do not take part in the hostilities or children who are forced, by one means or another, to be active in an armed conflict.82 Examples are the Sudan war, ISIS’ brutal conduct, and the use of children in the war between Iran and Iraq from 1980 to 1988. The four 1948 Geneva Conventions and their 1977 Protocols all aim at the protection of the rights of the child in an armed conflict.83 This is regardless of the nature of the armed conflict, whether national or 80

Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereign, para.145, pp.282-83. 81 Consult Shaheen Sardar Ali, ‘Evolving Conceptions of Children's Rights: Some Reflections on 'Muslim States' Engagement with the United Nations Convention on Rights of the Child', in Yassari, Nadjma; Moller, Lena-Maria; Gallala-Arndt, Imen; (ed.), Parental Care and Best Interest of the Child in Muslim Countries (The Hague, T M Asser, 2016); Shaheen Sardar Ali, Contextualising Family-Law Reform and Plural Legalities in Postcolonial Pakistan. In: Yassari, Nadjma; (ed.), Changing God's Law : the Dynamics of Middle Eastern Family law (Farnham, Ashgate Publishers, 2016), pp. 34-67. 82 For instance see Farhad Malekian, Confessing the International Rights of Children: The Basic documents with Analysis (Farhad Malekian, Kerstin Nordlöf, Cambridge Scholars Publishing, 2012). The first Caliph in Islam expresses that ‘Stop, O people, that I may give you ten rules to keep by heart! Do not commit treachery, nor depart from the right path. You must not mutilate, neither kill a child or aged man or woman. Do not destroy a palm-tree, nor burn it with fire and do not cut any fruitful tree. You must not slay any of the flock or the herds or the camels, save for your subsistence. You are likely to pass by people who have devoted their lives to monastic services; leave them to that to which they have devoted their lives. You are likely, likewise, to find people who will present to you meals of many kinds. You may eat; but do not forget to mention the name of Allah.’ M. Khadduri, The Islamic Law of Nations: Shaybanis Sïyar (John Hopkins Press, 1966), p.102. 83 Protocols I and II are international law-making treaties supplementing the Geneva Conventions of 1949. Their values are based on detailed humanitarian rules governing the protection of civilians and the wounded.

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international. More significantly, the basic principles, provisions, or norms of these international agreements guarantee the fundamental rights of the child, and therefore there is no distinction between children of one group or another. The relevant instruments have particularly emphasised the duties of all conflicting parties to observe a distinction between combatants and non-combatants.84 In addition, children are fully protected by the provisions of Article 3 in the Geneva Conventions. One of the main protections of the rights of children in times of armed conflict is formulated in the provisions of Article 4 of the Additional Protocol II to the Geneva Convention.85 The relevant article concerning fundamental human rights guarantees provides that 3. Children shall be provided with the care and aid they require, and in particular: (a) they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care; (b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated; (c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities; (d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of subparagraph (c) and are captured; (e) measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.

Although the provisions of Additional Protocol I to the Geneva Conventions deal exclusively with the protection of victims, their intention

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Articles. 48 and 51. See also John Kelsay, ‘Islam and the Distinction between Combatants and Non – Combatants’ in Cross, Crescent, and Sword: The Justification and Limitation of War in Western and Islamic Tradition, edited by James Turner Johnson and John Kelsay (Westport CT: Greenwood Press, 1990). 85 International Committee of the Red Cross, “Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II)”, 1977, 1125 UNTS 609.

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is certainly to protect children as well.86 Like the provisions of Article 4 of Protocol II, it definitely prohibits the application of the death penalty to children. ‘The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children.’87 The barbarous acts of ISIS, for instance, can be properly dealt with under the provisions of Protocol I. Similarly, the provisions of Article 77 of Protocol I guarantee special protection to children. Accordingly, the provisions of Article 77 have been cruelly violated by the terrorist activities of the members of ISIS. Furthermore, Islamic international criminal law and particularly its international humanitarian law of armed conflict have drawn up a comprehensive list of combatants and noncombatants, indicating that non-combatants such as women, the elderly, or minors should be fully respected. 2.7.2.2. Basic Principles of Islamic Justice According to the second source of Islamic law, there are three significant principles that have to be respected by combatants. They are the principles ‘Do not kill any old person, any child or any woman.’88 Likewise the principle The same holds true for the principles ‘Do not kill the people who are sitting in places of worship,’ and ‘Do not kill the monks in monasteries.’ The main Islamic source also indicates the principle ‘Do not take the life which God has given full value.’89 These principles are additionally complemented by the chief principle that ‘unjust murder, torture, destruction, should be punished by law.’90 Not only are unlawful killings prohibited, even lawful killing is rejected under the principle of ‘Do not kill yourself.’91 Value is also given to the principle that killing in ‘retaliation is discouraged.’92 It is therefore not without reason that one of the core principles of Islamic law lays down the following: ‘Whosoever has spared the life of a soul, it is as though he has

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International Committee of the Red Cross, “Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)”, 1977, 1125 UNTS 3. Article 77 (1). 87 Article 6 of Protocol I. 88 (Abu Dawud, 2614), 47. 89 Q, 6:151. 90 Q, 2.179. 91 Q, 4:29. 92 Q, 17:33.

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spared the life of all people. Whosoever has killed a soul, it is as though he has murdered the entire human race.’93 An illustrative example is when the Islamic army laid siege to Jerusalem (16 AH / 638 CE), Umar, the Islamic leader of the army, issued a declaration that stated: I grant them security for their lives, their possessions, and their children; their churches, their crosses, and all that appertains to them, in their integrity, and their landsʊto all their religion. Their churches shall not be impoverished, nor destroyed, nor injured; neither their endowments nor their dignity; and nothing of their property, neither shall the inhabitants of Jerusalem be exposed to violence for following their religion; nor shall one of them be injured; nor shall one of the Jews be impoverished in Aelia…. Moreover the Greeks and robbers shall depart there from, with security for their life and property …94

It may therefore be presumed that the theory of Article 77 entitled Protection of Children is without a doubt in harmony with the core provisions of Islamic international criminal justice and the humanitarian law of armed conflict. The main purpose is the protection of the lives of children. The article correctly asserts that children ‘shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.’95 The article goes further and points out that if children are ‘arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units.’96 Article 77 of Protocol I, like 93

Q, 5:32. May 638 Caliph Umar (Omar), Mount of Olives, Christians, Jizyah: Expulsion of Christians. Cited in Online Judaic Studies. Available in http://cojs.org/may-638caliph-umar-omar/ (Visited on 26 March 2017). See also Laurence E. Browne, The Eclipse of Christianity in Asia: From the Time of Muhammad till the Fourteenth Century (Cambridge: At the University Press, 1933), p.39; Jacob De Haas, History Of Palestine - The Last Two Thousand Years (USA: Macmillan, 1934), p.4; M. Cherif Bassiouni, The SharƯah and Islamic Criminal Justice in the Time of War and Peace (Cambridge: Cambridge University Press, 2014), p.160; George Williams, The Holy City: Or, Historical, Topographical Notices of Jerusalem; with Some Accounts of Antiquities and its Present Condition (London: J. W. Parker, 1845), p.200; Ovey N. Mohammad, Muslim-Christian Relations: Past, Present, Future (UK: Wipf and Stock Publishers, 1999), p.33. 95 Article 77 (1). 96 Article 77 (4). 94

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Article 4 of Protocol II also goes further and indicates that the ‘death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed.’97 Regrettably, children are often used in armed conflicts. Their participation may be categorized under different types of action such as aiding combatants, bringing them weapons and munitions, or any other needs in armed conflict. Although the provisions of Additional Protocol I oblige conflicting parties to take all feasible measures to prevent children under 15 years of age from taking direct part in armed hostilities, this rule has often been disregarded in the practice of states. It has also occurred by ISIS killing large numbers of children. In addition, Protocol I prohibits the recruitment of children into armed forces and encourages the conflicting parties to give priority to recruiting the oldest among those children or youths from 15 to 18. It says that ‘the Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.’98 Protocol I further prohibits both the recruitment and the participation of children under 15 years of age – directly or indirectly – in hostilities.99 One of the articles of the 1990 Cairo Declaration on Human Rights in Islam also provides that in ‘the event of the use of force and in case of armed conflict, it is not permissible to kill non-belligerents such as old men, women and children. The wounded and the sick shall have the right to medical treatment; and prisoners of war shall have the right to be fed, sheltered and clothed. It is prohibited to mutilate dead bodies. It is a duty to exchange prisoners of war and to arrange visits or reunions of the families separated by the circumstances of war.’100 The same article in the above furthers the principle of Islamic humanitarian law of armed conflict by stating that it ‘is prohibited to fell trees, to damage crops or livestock, and to destroy the enemy’s civilian buildings and installations by shelling, blasting or any other means.’101 97

Article 77 (5). Article 77 (2). 99 Article 4 (3) (C). 100 Article 3 (a). 101 Article 3 (b). 98

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2.7.2.3. Systematic Violations of Safeguards Regardless of the fact that the provisions of the four Geneva Conventions and their Protocols explicitly and implicitly direct the conflicting parties not to recruit children, children become combatants because of their participation in armed conflict and, in the event of their capture, are treated as prisoners of war according to the provisions of the Geneva Convention III. Both Protocols to the Geneva Conventions provide that child combatants under 15 are entitled to privileged treatment. It says that, in exceptional cases, despite the provisions of paragraph 2, if children who have not reached the age of fifteen years take a direct part in hostilities and fall into the power of an adverse party, they shall continue to benefit from the special protection accorded by this article, whether or not they are prisoners of war. This is also what is known as the international humanitarian law of armed conflict.102 Again, like the protection of children provided in Article 77, similar safeguards have been formulated in the provisions of Article 78 of Protocol I.103 The content of the article relates to the evacuation of children with particular care and under certain necessary conditions. All these provisions also are seriously violated by each member of the ISIS criminal organisation, who is financing and acting under certain order of identified governments or companies. However, as we have documented elsewhere, reference to a superior order does not preclude the criminal responsibility of the subordinate. The bulk of international criminal law provisions imply the high value of the principle of criminal responsibility of individuals without due regard to their position or presented arguments. Article 78 clarifies as follows: 1. No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require. Where the parents or legal guardians can be found, their written consent to such evacuation is required. If these persons cannot be found, the written consent to such evacuation of the persons who by law or custom are primarily responsible for the care of the children is required. Any such evacuation shall be supervised by the 102

Article 77 (3, para. 3 API and Art. 4, para. 3d APII). However, one cannot deny the fact that ratification of Protocol I, has been seriously debated by great powers. See David A. Bagley ‘Ratification of Protocol I to the Geneva Conventions of 1949 by the United States: Discussion and Suggestions for the American, 11 (3) Lawyer-Citizen’ Loyola of Los Angeles International and Comparative Law Journal (1983), pp. 439-485.

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The acts of evacuating children, killing children, beheading children, and raping children by the members of ISIS constitute grave crimes against the rights of children and are therefore violations of all international criminal law systems. 2.7.2.4. Specific Principles of Justice The significant provisions of the 1989 Convention on the Rights of the Child relating to the protection of children during armed activities need to be considered here as well. Although some Islamic states have not become signatories to the powerful provisions of the Convention, there is no doubt that the relevant provisions of the Convention hardly contravene the provisions of Islamic international criminal law or Islamic international

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criminal justice.104 They concern the fundamental rights of children in wartime and as such constitute an integral part of jus cogens norms. Actually, Article 38 of the Optional Protocol to the Convention on the Rights of the Child extends the boundaries of Article 77 of the Protocol I to non-international armed conflict. This is in order to ensure that the rules of international humanitarian law are fully respected and applied to children in armed conflicts.105 It gives a conventional order to the states parties to take all feasible measures deemed necessary in order to ensure that the rights of children under 15 years of age are respected.106 In addition, the Quran clarifies that ‘there is no blame on the disabled, the sick, and those lacking the means, to stay behind so long as they are sincere to Allah and His messenger. There is no way (blame) against those righteous people. Allah is Forgiving, Merciful.’107 The intention of the Protocol is to prevent children from participating in armed hostilities. In other words, the Convention rejects the use of any child under 15 years of age in armed conflicts, but, if it is absolutely necessary, encourages that priority be given to recruitment of children between the ages of 15 and 18. The Convention therefore has two contrary legal languages concerning permission and non-permission. The negative aspect of the article is that it gives permission to the states parties to use children for armed recruitment. The article clearly stipulates that ‘states parties shall refrain from recruiting any person who

104

See the relevant appendix on human rights principles in Islamic theory. Shaheen Sardar Ali, A comparative perspective of the convention on the rights of the child and the principles of Islamic Law : law reform and children's rights in Muslim jurisdictions. In: UNICEF,; (ed.), Protecting the world's children : impact of the Convention on the Rights of the Child in diverse legal systems (Cambridge: Cambridge University Press, 2007); see also Shaheen Sardar Ali and, Baela Jamil, The United Nations Convention on the Rights of the Child, Islamic Law and Pakistan Legislation : A Comparative Study (Peshawar: Educational Computing Services & Publishers, 1995). 105 Article 38 (1). The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted and opened for signature, ratification and accession by General Assembly resolution (A/RES/54/263 of 25 May 2000) entered into force 12 February 2002. 106 Article 38 (2). The content of sub-section 2 is strengthened by the provisions of sub-section 4 of the same article by the term the parties to ensure ‘care of children who are affected by an armed conflict..’ For the rights of children at peace times see Farhad Malekian, Kerstin Nordlöf, The Sovereignty of Children in Law (Cambridge: Cambridge Scholars Publishing, 2012). 107 Q, 9:91.

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has not attained the age of fifteen years into their armed forces.’108 This means direct permission to use children in armed activities, albeit when they ‘have attained the age of fifteen years.’109 This provision is also enhanced by the phrase concerning children who ‘have not attained the age of eighteen years’110 and the phrase ‘priority to those who are oldest.’111 Definitely, the relevant provisions of the Convention are contrary to the provisions of human rights law concerning the protection of children. This also includes the provisions of the 1948 Declaration of Human Rights. Again, the Optional Protocol to the Convention on the Rights of the Child also provides that states parties ‘shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.’112 In another article, states parties ensure that ‘persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.’113 The intention of these provisions separately and collectively is to cover the gap that has been created by the provisions of the four Geneva Conventions and their Protocols. It is for these reasons that the provisions of Articles 3 and 4 of the Optional Protocol strongly prevent states from using children in armed conflicts by any means. Articles 3 and 4 partly provide that states parties ‘shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection.’114 The provisions of the Optional Protocol to the Convention on the Rights of the Child should be compared with the provisions of the Covenant on the Rights of the Child in Islam, constituting the first binding human rights document adopted by the Organisation of the Islamic 108

Article 38 (3). Id. The entire sub-section reads that ‘States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.’ Article 38 (3) of the Convention on the Rights of the Child. 110 Id. 111 Id. 112 Article 1 of the Optional Protocol to the Convention on the Rights of the Child. 113 Article 2 of the Optional Protocol. 114 Article 3 (1) of Optional Protocol. 109

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Conference in 2005.115 Regrettably, the provisions of the Covenant are very weak and not at all powerful.116 The Covenant only provides that states parties should ‘protect children by not involving them in armed conflicts or war.’117 However, this weakness of the Covenant is comparable to the weaknesses of the Convention on the Rights of the Child regarding ambiguous age requirements. Yet, the Optional Protocol goes even further and states that states parties that permit voluntary recruitment into their national armed forces of persons under the age of 18 years must be sure that the recruitment is genuinely voluntary and that it is carried out with the informed consent of the person’s parents or legal guardians. In addition, children under 18 years of age must be informed of the duties involved in armed conflicts, and the age of the volunteer must be verified as authentic. The Optional Protocol finally underlines that ‘armed groups distinct from the national armed forces should not, under any circumstances, recruit (whether on a compulsory or voluntary basis) or use in hostilities persons under the age of 18 years.’118 Consequently, states parties must take legal measures to prohibit and criminalize such practices.119 A provocative and complex series of events are clustered around the brutal killing, raping, torturing, beheading, and humiliating of mostly Muslim children under the Daesh (ISIS) armed forces. Their acts have seriously violated the provisions of the humanitarian law of armed conflict, which includes the system of international criminal law and principles of Islamic international criminal law. These events, together and separately, imply the fact that Islamic provisions are also being misused by the big political powers in order to defend their oil pipelines.120 115

This was during the meetings of the Foreign Ministers of the Islamic nations. Nasrin Mosaffa, ‘Does the Covenant on the Rights of the Child in Islam Provide Adequate Protection for Children Affected by Armed Conflicts?’ 8 (1) Muslim World Journal of Human Rights (2011), pp.0-19. Available at https://www.degruyter.com/downloadpdf/j/mwjhr.2011.8.issue-1/1554-4419.1220/ 1554-4419.1220.pdf (Visited on 14 April 2017). 117 Article 17 (5). 118 Article 4 (1). 119 Article 4 (2). 120 Vattel’s statement of 1758 may also be relevant today in terms of both the big powers and the ISIS. ‘Nations which are always ready to take up arms, when they hope to gain something thereby, are unjust plunderers; but those who appear to relish the horrors of war, who wage it on all sides without reasons or pretexts, and even without any other motive than their own inclinations, are monsters, and unworthy the name of men. They should be regarded as enemies to the human 116

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ISIS is obviously the new method of warfare being used in political power politics and the creation of the events of 11 September 2001.121 However, this reasoning does not, to any level or degree, release the members of the relevant group from facing an appropriate criminal jurisdiction for their serious violations of international criminal law and Islamic international criminal justice.

3. Al-Bashir Case Another significant case is the Al-Bashir case brought before the ICC. It was based on the fact that, since Omar al Bashir is the President of Sudan, the Sudanese criminal legal authorities had not brought him to court for the crimes committed in Darfur.122 On 4 March 2004, the Pre-Trial Chamber of the ICC issued an arrest warrant against him.123 The intention was to bring him under the jurisdiction of the Court for serious crimes against humanity. Darfur crimes are so serious and fundamental that they have to be treated by international criminal courts and, if possible, by an Islamic international criminal court. This is also based on the fact that Sudan has Islamic principles and its legislation contains mostly Islamic regulations.

race, just as civil society persons who follow murder and arson as a profession commit a crime not only against individuals who are victims of their lawlessness, but against the state of which they are the declared enemies. Other nations are justified in uniting together as a body, with the object of punishing, and even of exterminating such savage nations.’ Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereign, p.xxvi. 121 However, see also Javaid Rehman, ‘International Law, US Foreign Policy and Post-9/11 Islamic Fundamentalism: The Legal Status of the "War-on-Terror"' 77(2) Nordic Journal of International Law (2008) pp. 87-103; Javaid Rehman, Islamic State Practices, International Law and the Threat from Terrorism: A Critique of the ‘Clash of Civilizations' in the New World Order (Oxford: Hart Publishing, 2005). 122 Consult also Mohamed Abdelsalam Babiker, Application of International Humanitarian and Human Rights Law to the Armed Conflicts of the Sudan: Complementary or Mutually Exclusive Regimes? (Antwerp and Oxford: Intersentia, 2007); Mohamed Abdelsalam Babiker, ‘The Prosecution of International Crimes under Sudan's Criminal and Military Laws: Developments, Gaps and Limitations’, in Lutz Oette (ed.) Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan, (London: Ashgate, 2011), pp.161-182. 123 Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber 1, 4 March 2009.

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The decision of the Court regarding the prosecution of Sudan’s president is definitely understandable in view of the indictment and arrest warrant issued by the International Criminal Tribunal for the former Yugoslavia (ICTY) against the then President of the Federal Republic of Yugoslavia (FRY; later Serbia and Montenegro, now Serbia). It can also be seen in the light of the indictment and arrest warrant issued by the Special Court for Sierra Leone (SCSL) against Charles Taylor, the President of Liberia at the time.124 One of the serious problems of the trial of Charles Taylor was that it was rightly condemned by one of its reserve judges, who declared that the court’s decision had already been made prior to the actual judgment and that the Court was therefore corrupt in its decision.125 The Bashir case has opened up serious discussions concerning his arrest; the question is whether the warrant issued by the ICC followed correct legal policy. The case has been variously discussed, and the opinion is that the arrest warrant of the ICC violated the rules on the personal immunity of a serving head of state not party to the Statute. The request for an arrest warrant put forth for President Bashir ’was a bold political move by the Prosecutor,’126 and is considered as ‘nothing less than a demand for regime change.’127 The situation gets even more critical considering that he is travelling freely and taking part in political discussions without any particular bond.128 If the case were to be given to an Islamic international criminal court, however, the situation would be different based on the following facts:

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C.P.R. Romano and A. Nollkaemper, ‘The Arrest Warrant against the Liberian President Charles Taylor’, American Society of International Law Insight (2003), available at https://www.asil.org/insights/volume/8/issue/16/arrest-warrant-againstliberian-president-charles-taylor, last visited on 18 December 2016. 125 Farhad Malekian, Judgments of Love in Criminal Justice (Springer, Germany, 2017), pp.247-8. 126 Sarah Williams and Lena Sherif, ’The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court’ 14 (1) Journal of Conflict & Security Law (2009), pp.71–92, at 90. https://edisciplinas.usp.br/pluginfile.php/121766/mod_resource/content/1/Williams %20and%20Sherif%202009.pdf (visited on 24 July 2017). 127 C. Gosnell, ‘The Request for an Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan?’, 6 JICJ (2008), at 841. 128 Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, 7 (2) Journal of International Criminal Justice (2009).

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The pure Islamic rules do not distinguish between an individual and an individual’s position, as also indicated by the Nuremberg Tribunal or the Statute of the ICC. There is no such question of immunity in Islamic law. The Prophet of Islam has made it clear that no one escapes criminal responsibility, which also includes his own family members. The law should not protect against crimes committed against Muslims or non-Muslims. This is the basic philosophy of Islamic theory. In other words, immunity should not be given to criminals because of their high position or authority. Likewise, for grave violations of international criminal law, the question of personal immunity is irrelevant.129 This is also the position of the ICC. The serious problem of the ICC is its connection to the Security Council, which makes the position of the ICC very controversial. The proposed Islamic international criminal court would be free from this monopolisation and act in accordance with the international human rights order.

However, for some contrary opinion, see Id.

CHAPTER NINETEEN THE VISION OF JUSTICE WITH LOVE IN ISLAMIC CRIMINAL REHABILITATION

1. Legal Characteristics of Love “To overcome evil with good is good, to resist evil by evil is evil.”1 ‘Believers are each other’s brothers. Restore peace among your brothers. Have fear of God so that perhaps you will receive mercy.’2 The pure philosophy of Islamic law prohibits crimes, violations, atrocities, and destruction. The true virtue of Islamic law is that it is against any type of punishment that may harm a human being, her/his physical body, soul, dignity, humanity, priorities, and social integrity. It is for this reason that Islamic law stresses the term forgiveness in most important matters. Islamic law encourages the victim to realise the nature of her/his power to forgive the offender but at the same time guides the victim with the vision that nothing gives man more integrity and knowledge of primacy than if he replaces her/his hate, wounds, and sadness with forgiveness of the offender.3 According to one opinion evaluating the institution of justice in Christianity and Islam: Whereas Christianity is primarily the religion of love, Islam is above all the religion of justice. This does not, of course, mean that Christians are necessarily better at loving than Muslims, or that Muslim society lends itself more successfully to the realisation of justice… Nevertheless… the two watchwords, love and justice, can usefully act as signposts to a wide range of differences between the two religions in terms both of their acknowledged practices and dogmas and of the unconscious prejudices of their adherents.4 1

The second source of Islamic law. Q, 49:10. 3 On the visions and positive effects of love see Tariq Ramadan, The Quest for Meaning, Developing a Philosophy of Pluralism (London: Penguin, 2010). 4 M. Ruthven, Islam in the Word (London: Penguin, 1984), pp.227-8. 2

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Based on this premise, Islamic law and particularly the Islamic international humanitarian law of armed conflict encourage the conflicting parties not to violate certain rules of war and to respect not only the laws of nature but also the provisions of international treaties relating to armed hostility. Islamic law therefore strongly tends to replace ignorance with wisdom. Due to its theory of learning and awareness, the first principle for human beings is to be wise, even in times of retaliation or of the right to apply punishment. Accordingly, an action that leads to justice, understanding, and enlightenment is wise. Islamic theory sees in human beings the great capacity to present reason í agel. They may, because of reason, acquire control over their passions í nafs. This means proper reason and control over passion prevent disorder, rebellion, or insurgence and thus avoid temptation í fitnah. It is therefore neither Christianity nor Islam that encourages justice and love. Rather, it is the nature of our being that understands and develops the forms of love and justice. With all these characteristics, Islamic law does not mean to absolve offenders of serious crimes against God, against human beings, and against nature. But it strives for a high level of understanding of the nature of man, of respect for natural law, of the philosophy of justice, of the philosophy of forgiveness, and of the philosophy of achieving happiness by forgiving the offender’s crime. All these features bring enlightenment and enable man to be patient and not lose his tolerance in the face of various superficial consequences of his environment. The Prophet of Islam recognises this method throughout his entire Quranic education. He intends to make human beings aware of the propensity to evil in her/his nature and to avoid this revolting behaviour by all means. An Islamic international criminal court would therefore have a significant duty and function: not to violate its duty and its legal responsibility in punishing criminals. The method of punishment, however, is to teach love to the offender so that s/he can learn the difference between awareness and ignorance and to cure a heart full of evil substance. The Quran teaches us: “Lo! God changes not the condition of a nation until they first change that which is in their hearts.” It further teaches: And the heaven and Him Who built it, And the earth and Him Who spread it, And a soul and Him Who perfected it

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And inspired it (with conscience of) what is wrong for it and (what is) right for it. He is indeed successful who caused it to grow, And he is indeed a failure who stunted it.5

Therefore, the distribution of love has to be the first task of an Islamic international criminal court and the philosophy of law as a whole.6 ‘We have to begin, humbly, by admitting that we have nothing more than point of view, in the literal sense, and that they shape our ideas, our perceptions, and our imagination.’7 This means the court cannot implement the unlawful and inhumane traditional methods of punishment within the structure of the Quran, which should be considered abolished, because they were formulated at a time when the science of criminal law was still underdeveloped. Because of the circumstances of the time, those punishments had been written with the intention of gradually minimising the ignorance of man. Although Islamic criminal law recognises certain punishments as crimes against the dignity of man, it still encourages the national or international criminal legal authorities to deal with crimes wisely and by effective methods of prevention, rehabilitation, and reinforcement of the rights of victims and society using the best possible tactics available. This means that, unfortunately, we cannot deal with all international crimes, and many of these crimes go without prosecution and punishment. This is particularly obvious in the case of those big political parties with strong military power to defend themselves against their own dangerous criminal behaviour and to escape prosecution and punishment with ease. The fact is that there is a deep gap between the morality of the law, the morality of politics, and the morality of practice. The following acts are illustrative examples: -

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Killing, rape, torture, beheading and the like constitute serious crimes and are prohibited. All these actions are grave crimes, and punishable. Destroying or the taking of property of others is a serious crime, as such constitutes a violation of the Islamic humanitarian law of

Q, 91:5-10. On love humanity, respect and justice consult Tariq Ramadan, The Quest for Meaning, Developing a Philosophy of Pluralism (London: Penguin, 2010). 7 Id. at x. For further analysis see also Tariq Ramadan, What I Believe (Oxford: Oxford University Press, 2009). 6

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armed conflict, and is therefore subject to punishment with due regard to the amount of damage caused. The criminal conduct of legal authorities against the dignity of man should not be ignored under any circumstances. In other words, we should not choose between criminal behaviour, giving priority to one and ignoring others. As Robert Cryer remarks, “selective enforceability is unacceptable.”8 This is particularly significant for any national legal system. Although the system of international criminal law has accepted the concept of selectivity in certain situations, it has also been sharply criticised, based on the fact that there is an unenlightened wrong between the state of the victim and possibly the right of the given society.9 Although Islamic international criminal law strictly prohibits economic, military, and political corruption, such conduct is widely practiced by most Islamic leaders and can particularly be seen in the practice of ISIS. All these acts constitute crimes and are therefore punishable by nature. With the application of Islamic criminal law to the members of the group, one should be careful not to lose sight of the serious nature of their criminal conduct when considering the questions of forgiveness, love, and justice.

2. Distributing Love in Justice One of the most well-known functions of Islamic theory, in contrast to how it is understood by many Islamic leaders, in particular by the criminal Islamic group ISIS, is the distribution of love in justice. This means the entire theory of the Islamic State lacks any foundation and is false.10 A prominent Islamic philosopher indicates that “this simple truth is the essence of my message to Muslims throughout the world: know who you are, who you want to be, and start talking and working with whom you are not. Find common values and build with fellow citizens a society based on diversity and equality.”11 The followers of Islamic theory waged numerous historically necessary and inevitable wars, as did the followers of Christianity, even though both 8 Robert Cryer, Prosecuting International Crimes, Selectivity and the International Criminal Law Regime (Cambridge University Press, Cambridge, 2005), p.192. 9 Cryer, p.193. 10 Consult Haider Ala Hamoudi, ‘The Death of Islamic Law’, 38 Georgia Journal of International Law & Comparative Law (2010), pp.293-337. 11 Tariq Ramadan. See also Tariq Ramadan, Radical Reform, Islamic Ethics and Liberation (Oxford: Oxford University Press, November 2008).

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religions sought love for humanity, love for justice, and love for the maintenance of peaceful international relations. However, these intentions were completely ignored, and the greed for wealth, position, and power became the primary reasons for the distribution of Islamic or Christian theories.12 Despite this incorrect interpretation of both religious theories, these religions have been attempting to distribute love and proper justice among human beings. One may refer to three examples dealing separately with each theory and referring to the distribution of justice with love and respect for the principles of fairness. The first example is the description of justice within the norms of Christianity, as explained and guided by Jesus. The second is the distribution of justice, accompanied with love by Mohammad, as well as the valuable function of strengthening the unity between individuals, groups, nations, and, ultimately, the application of the principle of the universal validity of human beings’ integrity.13 The third example deals with the judgment of King Solomon of Israel in the Hebrew Bible. The narrative of the Good Samaritan provides an excellent interpretation of justice with love in all possible situations. Many lawyers refer to this parable in order to express its very significant value and role in the distribution of justice, among them Martin Luther King, Hans Kelsen, and Immanuel Kant. Although Kant is not against the distribution of love, he believes that love cannot be ordered and should be understood by man himself.14 The sermon says that a lawyer asked Jesus: What I shall do to inherit eternal life? He said to him, what is written in the law? How do you read it? He answered, you shall love the Lord your God with all your heart, with all your soul, with all your strength, with your entire mind, and your 12

N.J. Coulson, Islamic Surveys: A History of Islamic Law (Edinburgh University Press, 1964); N.J. Coulson, Succession in the Muslim Family (Cambridge: Cambridge University Press (1971); Youssef Courbage, and Philippe Fargues, Christians and Jews under Islam (New York: St. Martin’s Press, 1997); Paras Diwan, Muslim Law in Modern India (Galabad, 1977). 13 W. Montgomery Watt, Free Will and Predestination of Early Islam (London, 1948); W. Montgomery Watt, Islam and the Integration of Society (London, 1961);W. Montgomery Watt, Islamic Philosophy and Theology (Edinburgh, 1962); W. Montgomery Watt, Muhammad at Medina (Oxford, 1956); W. Montgomery Watt, Muhammad, Prophet and Statesman (Oxford, 1961); W. Montgomery Watt, The Formative Period of Islamic Thought (Edinburgh, 1973). 14 Immanuel Kant, Moral Law: Groundwork of the Metaphysics of Morals (Translated by H. J. Paton, New York, Routledge, 1948), p.71.

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Chapter Nineteen neighbour as yourself. He said to him, you have answered correctly. Do this and you will live. However, he, desiring to justify himself, asked Jesus, Who is my neighbour? And Jesus answering said, A certain man went down from Jerusalem to Jericho, and fell among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him half dead. And by chance there came down a certain priest that way: and when he saw him, he passed by on the other side. Likewise, a Levite, when he was at the place, came and looked on him, and passed by on the other side. But a certain Samaritan, as he journeyed, came where he was: and when he saw him, he had compassion on him, and went to him, and bound up his wounds, pouring in oil and wine, and set him on his own beast, and brought him to an inn, and took care of him. And on the morrow when he departed, he took out two pence, and gave them to the host, and said unto him, Take care of him; and whatsoever thou spends more, when I come again, I will repay thee. Which now of these three, think you was neighbour unto him that fell among the thieves? The lawyer said, He that showed mercy on him. Then said Jesus unto him, Go, and do thou likewise.

Joseph Raz also promotes judgment with love. In his opinion, the concept of love is a question of attitude and it therefore creates a moral obligation. He concludes that people “believe that there cannot be a duty to love someone. The common reason for this supposed impossibility is that love is an emotion and the emotions cannot be commanded. This is a misguided view of both love and the emotions. Love is an attitude, not an emotion.”15 This question of love and justice and their inseparability is one of the significant subjects of Islamic law. Thus, there should be a balance between the principles of justice, the rights of the victims, and the principle of proportionality. Similarly, the American philosopher Rawls argues different types of love and concludes that the love of human beings for justice is beyond the sense of love within justice. He says: We must . . . distinguish between the love of mankind and the sense of justice. The difference is not that they are guided by different principles, since both include a desire to give justice. Rather, the former is manifested by the greater intensity and pervasiveness of this desire, and in the readiness to fulfil all the natural duties in addition to that of justice, and even to go beyond their requirements. The love of mankind is more comprehensive than the sense of justice and prompts to acts of supererogation, whereas the latter does not. . . Although justice as fairness begins by taking the persons in the original position as individuals, or more 15

Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994), p.11.

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accurately as continuing strands, this is no obstacle to explicating the higher order moral sentiments that serve to bind a community of persons together.16

According to the second example concerning the Islamic theory of distribution of justice with love, it guides us on how to build the unity of love between individuals in order to avoid controversy. In about 605 (A.D.), a flood seriously damaged Mecca and the Ka’bah building.17 The Quraysh decided to rebuild it again. When the walls reached a certain height, a dispute arose between clans as to which one should be given the honour of putting the Black Stone (Hajar Aswad) in its place again. This became a serious problem between different groups, and the dispute threatened to initiate a permanent conflict and misunderstanding of the unity of man. Finally, they agreed that the first person who entered the precincts of the Ka’bah the next morning should arbitrate this controversial issue. The person was the Prophet when he was just 35 years old. The Quraysh were pleased with him, based on his truthfulness among Arab populations. Mohammad opened his own shale robe on the ground and laid the Black Stone on it. Then he turned to the people who had gathered and had this serious conflict about the replacement of the stone and asked the negotiators of each side to hold the corners of the robe and to raise it up to the given height. When they raised the robe, he lifted the Stone and put it in its required position in the wall of Ka’bah. This was the judgment that settled one of the most serious disputes in the Arab world. The third example concerns the narrative about the judgment of King Solomon of Israel in the Hebrew Bible. King Solomon’s judgment implies: ... that the concept of love is one of the most significant norms of legal discipline in order to find the truth. It also concerns the true love for our children when it comes to a fight between persons. In this episode, two women lived with two baby sons in the same house. One baby died and both came to Solomon claiming that the living child was hers. Solomon ordered a soldier to cut the remaining child into two equal parts. In response to this brutal verdict, the compassion for her son burned within the true mother’s heart, she cried out, ‘Please, my lord, give her the living boy; certainly do not kill him!’ However, the other woman said, ‘He shall 16

Johan Rawls, A theory of justice (1971), pp.192-2. With the rise of Islamic theory and the persecution of Muslims by Arabs, a number of early Muslims had to take refuge with the Christian king of Abyssinia. Fred M. Donner, Muhammad and the Believers (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2010), p.42. 17

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Chapter Nineteen be neither mine nor yours; divide him.’ The King rendered his judgment as follows: ‘Give the first woman the living boy; do not kill him. She is his mother.’ Here, the lack of witnesses in a court following the true norm of love did not create an intractable judicial deadlock.18

3. Weight of Love in Criminal Justice Augustinus, in his theological theory, underscored the human capacities for perseverance, belief, loyalty, and love and defined human nature as the imago dei, which means one who has the capacity for loving rightly and “the only way of hearing God’s voice.”19 Here, with the love norms, I have absolutely convinced myself that I mean the final stage of tolerance against brutality; against unlawful rules; against injustice decisions; against barbarous segregations; against unequal divisions of social, economic and other services; against civil, criminal and juridical humiliation; and also against the basic integrity of man constituting an integral part of human union. The apartheid system and its abolition are just one example of how the final stage of violence may provoke the power of love for justice, not only in the United Nations General Assembly but also within the civil and cultural systems of most nations in the world. Thus, when the population of the world supported large demonstrations against the apartheid system in their own respective states, they not only proved the existence of the norm of love for justice but also via this power exhibited their own civil rights to express their critical opinion. This means that there is a green norm or a line shared between civil codes in one country with those of another, not to mention the civil code under European Union law, which should be almost the same for the whole of Europe. 20

The entire philosophy of Islamic international criminal law and an Islamic international criminal court is and should be to implement a legal

18 Malekian, Judgement of Love in Criminal Justice (Germany: Springer, 2017), pp.14.15. 19 David A. J. Richards, Why Love Leads to Justice: Love Across the Boundaries (New York: Cambridge University Press, 2016), p. 110. See also Jean Bethke Elshtain ‘Concrete Levels of Being and Their Political Implications’ in Don Browning (eds.), Universalism vs. Relativism: Making Moral Judgments in a Changing, Pluralistic, and Threatening World (Rowman and Littlefield Publishers, United Kingdom, 2006), at 154. See also Farhad Malekian, Judgments of Love in Criminal Justice (Germany: Springer, 2017), p.1. 20 Malekian, Id. p.100.

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procedure with love for humankind.21 This implies the fact that Islamic criminal law should not permit discrimination between the rights of victims, witnesses, the accused, and offenders.22 The theory here is to balance the scales of justice, and the weights of justice should not be unequal.23 The intention is to create a proper balance between the means and the end. The philosophy of Islamic criminal law is not solely about the application or implementation of punishment against offenders, but the aim is to achieve the value of rules, evaluate their substance, teach the rule of law, and underline the true dignity of man and the heart of justice with full love.24 It was not only at the discretion of judges but also at the discretion of victims to develop love by becoming one of the driving forces in the development of Islamic criminal justice. “The rationale for developing power to judges was that pious and knowledgeable individuals were deemed to be better guarantors of just outcomes than rigid application of codes or technical rules of procedure and evidence.”25 The intention here was to call upon a governance structure for human social value and 21

Farhad Malekian, ‘The Canon of Love against the Use of Force in Islamic and Public International Law: Part II: The Anatomy of Love Against Violations,’ 15 International Criminal Law Review, 2015), pp. 861-895; Farhad Malekian, ‘The Canon of Love against the Use of Force in Islamic and Public International Law: Part I: The Chamber of Love within Legal Discipline,’ 15 International Criminal Law Review, 2015), pp. 591-628. 22 Id. Part I,p.600; Part II, p.877. 23 Id. Part II, p.880. 24 It is correctly asserted that ‘if there is to be a chance for a future development in Islam. Education must be widely extended. The proportion of trained minds must be greatly increased and the barrier between them and the commonalty removed. The economy of teaching has failed; it has destroyed the doctrine, which it sought to protect. Again, the slavery of the disciple to the master must cease. It must always be possible for the student, in defiance to taglid, to go back to first principles or to the primary facts and to disregard what the great Imams and Mujtahids have taught… The student empirical from the control of the schools must turn from the study of himself to an examination of the great world. And the examination must not be cosmological but biological; it must not lose itself in the infinities but find itself in concrete realities. It must experiment the test rather than build lofty hypotheses.’ Duncan B. Macdonald, Development of Muslim Theology, Jurisprudence and Constitutional Theory (Lahore: The premier Book House, 1972), Pp.286-7. 25 M. Cherif Bassiouni, M. Cherif Bassiouni, Sources of Islamic Law and the Protection of Human Rights in the Islamic Criminal Justice System in Bassiouni (ed.) The Islamic Criminal Justice System (1982), p.120.

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integrity. It also emerged from the main source of Islamic law that “God loves not mischief.”26 And the fact that “God loves those who do good.”27 This was also based on the fact that “if you shall judge on people, judge justly.”28 This system of personal justice of the judge was modified by the adoption of a more modern system of criminal justice in Islamic regions. In truth, however, the formulation and legislation of criminal law should not, as a general principle of criminal justice in Islamic law, affect the proper application of rules, the proper interpretation of sanctions, and the role of love in criminal justice. This not only includes love for the authentic evaluation of the case and proper assessment of the rights of the victims but also encourages forgiveness and reduces impunity. However, the reality is that, although Islamic criminal law became the law, the judge became dependent on the decisions of political power, the control of legality changed, the objective judge became subjective, and love for the purity of judgment became love for political interests. Or it caused the Islamic fragment ummah.29 This means that political influence increased after Islamic criminal law became the law, and this became evident as early as after the death of the Prophet. The Islamic community or ummah divided very rapidly. As a result of all these influences, the concept of love for justice has been increasingly harmed, not only by offenders or terrorists but also by judges. The practice of Islamic criminal law of many Islamic nations implies this fact. To note a few, they are the Islamic Republic of Iran, the Islamic Republic of Afghanistan, and the Republic of Turkey. One may also add the criminal conduct of ISIS (created and supported by other states) because of the separation of Islamic theory from its main order of love for justice. In other words, the enlightenment, which was supposed to be understood by the international community of Muslims or ummah according to the Prophet of Islam or according to Quranology, is still misunderstood even at the beginning of the 21st century. Consequently, the principles of Amr bil Ma’ruf and Nahy an al Munka or the principles of doing good and avoiding wrongful conduct have been seriously mistreated by most supporters of Islamic theory and Islamic criminal justice. An Islamic code, however, clearly recommends “establish worship and enjoin 26

Q, 2:205. Q, 2:195. 28 Q, 4:58. 29 M. Cherif Bassiouni, The Shari’ah and Islamic Criminal Justice in the Time of War and Peace (Cambridge University Press, Cambridge, 2014), pp.28-29. 27

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kindness and forbid iniquity, and persevere whatever may befall thee. Lo! that is of the steadfast heart of things.”30 Therefore, the weight of love in criminal justice is very significant in Islamic theory, and Islamic criminal law consequently condemns all killings; but this has been misunderstood for almost 1400 years.

4 . The Main Codes on Love “He who loves my Sunnah, has loved me and he who loves me will be with me in Paradise.”31 Islamic criminal law, including an Islamic international criminal court, encourages taking all decisions in accordance with the given evidence and prioritizing the principle of justice with love in all decisions, whether civil or criminal. This relates not only to the proceedings and procedures of the prosecution but also to the implementation of punishment. As a general rule of justice, no criminal sanction should harm the pure legal discipline of Islamic law (regarding love for justice), which has regrettably been ignored for most of its history.32 The articles from the main source of Islamic law, i.e., the Quran, encouraging the principle of love are the following:

4.1. The Principle of Necessarium for Family Love The principle of necessarium refers to the critical, valuable, and vital substance that a believer cannot reasonably ignore. In Islamic theory, love is indispensable for the family unit. Some excepts with reference to love terms are as follows: 14:37 "O our Lord! I have made some of my offspring to dwell in a valley without cultivation, by Thy Sacred House; in order, O our Lord, that they may establish regular Prayer: so fill the hearts of some among men with love towards them, and feed them with fruits: so that they may give thanks. 7:31 O Children of Adam! wear your beautiful apparel at every time and place of prayer: eat and drink: But waste not by excess, for God loves not the wasters. 30

Q, 31:17. The second source of the Islamic law. 32 Coulson, A History of Islamic Law. (Edinburgh: Edinburgh University Press (1964). 31

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7:189 It is He Who created you from a single person, and made his mate of like nature, in order that he might dwell with her (in love). When they are united, she bears a light burden and carries it about (unnoticed). When she grows heavy, they both pray to God their Lord, (saying): "If you give us a healthy child, we vow we shall ever be grateful." 3:14 Fair in the eyes of men is the love of things they covet: Women and sons; Heaped-up hoards of gold and silver; horses branded (for blood and excellence); and (wealth of) cattle and well-tilled land. Such are the possessions of this world's life; but in nearness to God is the best of the goals (To return to). 2:222 They ask thee concerning women's courses. Say: They are a hurt and a pollution: So keep away from women in their courses (period), and do not approach them until they are clean. But when they have purified themselves, ye may approach them in any manner, time, or place ordained for you by God. For God loves those who turn to Him constantly and He loves those who keep themselves pure and clean. 21:90 So We listened to him: and We granted him Yahya: We cured his wife's (Barrenness) for him. These (three) were ever quick in emulation in good works; they used to call on Us with love and reverence, and humble themselves before Us. 30:21 And among His Signs is this, that He created for you mates from among yourselves, that you may find comfort with them, and He has put love and mercy between your hearts; surely there are signs in this for those who think about it. 12:30 Ladies said in the City: "The wife of the (great) 'Aziz is seeking to seduce her slave from his (true) self: Truly hath he inspired her with violent love: we see she is evidently going astray." 9:23 O ye who believe! take not for protectors your fathers and your brothers if they love infidelity above Faith: if any of you do so, they do wrong. 12:8 They said: "Truly Joseph and his brother are loved more by our father than we: But we are a goodly body! Really, our father is obviously wandering (in his mind)! 20:39 'Throw (the child) into the chest, and throw (the chest) into the river: the river will cast him up on the bank, and he will be taken up by one who is an enemy to Me and an enemy to him. And I bestowed upon you love from Me that you would be brought up under My eye. 4:36 Serve God, and join not any partners with Him; and do good- to parents, kinsfolk, orphans, those in need, neighbours who are near, neighbours who are strangers, the companion by your side, the wayfarer

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(ye meet), and what your right hands possess: For God loves not the arrogant, the vainglorious.

4.2. The Principle of Cultivating Love Islamic theory encourages the cultivation of love in all given circumstances. Some codes with reference to the norm of love are: 2:195 And spend of your substance in the cause of God, and make not your own hands contribute to (your) destruction; but do good; for God loves those who do good. 2:205 When he turns his back, His aim everywhere is to spread mischief through the earth and destroy crops and cattle. However, God does not love mischief. 9:108 Never stand thou forth therein. There is a mosque whose foundation was laid from the first day on piety; it is more worthy of the standing forth (for prayer) therein. In it are men who love to be purified; and God loves those who make themselves pure. 8:58 If you fairest treachery from any group, throw back (their covenant) to them, (so as to be) on equal terms: for God loves not the treacherous. 31:18 Do not speak to people with your face turned away, nor walk proudly on earth; for Allah does not love any arrogant boaster.

4.3. The Principle of Granting Love for Amity Islamic theory prohibits violation and promotes love and friendship between individuals. It says: 3:148 And God gave them a reward in this world, and the excellent reward of the Hereafter. For God loves those who do good. 5:13 But because of their breach of their covenant, We cursed them, and made their hearts grow hard; they change the words from their (right) places and forget a good part of the message that was sent them, nor wilt thou cease to find them- barring a few - ever bent on (new) deceits: but forgive them, and overlook (their misdeeds): for God loves those who are kind. 38:32 And he said, "Truly do I love the love of good, with a view to the glory of my Lord,"- until (the sun) was hidden in the veil (of night). 42:23 This it is which Allah announces unto His bondmen who believe and do good works. Say (O Muhammad, unto humankind): I ask of you no

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fee therefore, save loving kindness among kinsfolk. And whoso scores a good deed we add unto its good for him. Lo! Allah is forgiving, ever responsive to gratitude. 57:23 In order that ye may not despair over matters that pass you by, nor exult over favours bestowed upon you. For God does not love any vainglorious boaster. 60:7 It may be that God will grant love (and friendship) between you and those whom you (now) hold as enemies. For God has power (over all things); And God is Oft Forgiving, Most Merciful. 60:18 God does not forbid you to be kind and equitable to those who had neither fought against your faith nor driven you out of your homes. In fact, Allah loves the equitable. 76:8 and who give food - however great be their own want of it - unto the needy, and the orphan, and the captive, for the love the Lord.

4.4. The principle of Inappropriate Love In Islamic theory, love of wealth is the root of all evil. It says the following: 75:20 Nay, most of you love this fleeting life, 76:27 As to these, they love the fleeting life, and put away behind them a Day (that will be) hard. 14:3 Those who love the life of this world more than the Hereafter, who hinder (men) from the Path of God and seek therein something crooked: they are astray by a long distance. 89:20 And you love wealth with inordinate love! 100:8 And surely violent is he in his love of wealth. 5:64 The Jews say: "God's hand is tied up." Be their hands tied up and be they accursed for the (blasphemy) they utter. Nay, both His hands are widely outstretched: He gives and spends (of His bounty) as He pleases. But the revelation that cometh to thee from God increases in most of them their obstinate rebellion and blasphemy. Amongst them we have placed enmity and hatred till the Day of Judgment. Every time they kindle the fire of war, God does extinguish it; but they (ever) strive to do mischief on earth and God does not love the spreaders of corruption. 5:82 Strongest among men in enmity to the believers wilt thou find the Jews and Pagans; and nearest among them in love to the believers wilt thou find those who say, "We are Christians": because amongst these are men devoted to learning and men who have renounced the world, and they are not arrogant.

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28:76 Qarun was doubtless, of the people of Moses; but he acted insolently towards them: such were the treasures We had bestowed on him that their very keys would have been a burden to a body of strong men, behold, his people said to him: "Exult not, for God does not love those who exult (in riches). 28:77 Rather seek, by means of what Allah has given you, to attain the abode of the hereafter, while not neglecting your share in this world. Be good to others as Allah has been good to you, and do not seek mischief in the land, for Allah does not love the mischief makers. .

4.5. The Principle of Love for People of Truth Certain codes of Islamic philosophy also encourage people of truth to follow the principle of love. They provide as follows: 57:19 And those who believe in God and His messengers- they are the Sincere lovers of Truth, and the witnesses (who testify), in the eyes of their Lord: They shall have their Reward and their Light. But those who reject God and deny Our Signs,- they are the Companions of iniquity result. 30:45 However, He might reward, out of His bounty, those who have attained to faith and done righteous deeds. Verily, He does not love those who refuse to acknowledge the truth. 2:177 It is not righteousness that ye turn your faces Towards east or West; but it is righteousness- to believe in God and the Last Day, and the Angels, and the Book, and the Messengers; to spend of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfil the contracts which ye have made; and to be firm and patient, in pain (or suffering) and adversity, and throughout all periods of panic. Such are the people of truth, the Godfearing. 16:23 Undoubtedly God doth know what they conceal, and what they reveal: verily He does not love the arrogant. 3:119 Ah! ye are those who love them, but they love you not,- though ye believe in the whole of the Book. When they meet you, they say, "We believe": But when they are alone, they bite off the very tips of their fingers at you in their rage. Say: "Perish in your rage; God knows well all the secrets of the heart." 3:159 Only through the Divine Mercy have you (Muhammad) been able to deal with your followers so gently. If you had been stern and hardhearted, they would all have deserted you a long time ago. Forgive them

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and ask God to forgive (their faults) and consult with them in certain matters. However, when you reach a decision, trust God. God loves those who trust Him. 4:69 All who obey God and the messenger are in the company of those on whom is the Grace of God, - of the prophets (who teach), the sincere (lovers of Truth), the witnesses (who testify), and the Righteous (who do good): Ah! what a beautiful fellowship! 60:1 O you who believer! Take not my enemies and yours as friends (or protectors),- offering them (your) love, even though they have rejected the Truth that has come to you, and have (on the contrary) driven out the Prophet and yourselves (from your homes), (simply) because you believe in God your Lord! If you have come out to strive in My Way and to seek My Good Pleasure, (take them not as friends), holding secret converse of love (and friendship) with them: for I know full well all that ye conceal and all that ye reveal. And any of you that does this has strayed from the Straight Path.

4.6. The Principle of Love against Injustice Inappropriate conduct, illegal actions, and immoral decisions are all condemned in Islamic theory. The principle of love against injustice underlines that: 2:165 Yet there are men who take (for worship) others besides God, as equal (with God): They love them as they should love God. However, those of Faith are overflowing in their love for God. If only the unrighteous could see, behold, they would see the penalty: that to God belongs all power, and God will strongly enforce the penalty. 3:188 Think not that those who exult in what they have brought about, and love to be praised for what they have not done,- think escape the penalty. For them is a penalty Grievous indeed. 3:140 If a wound hath touched you, be sure a similar wound hath touched the others. Such days (of varying fortunes), We give to men and men by turns: that God may know those that believe, and that He may take to Himself from your ranks Martyr-witnesses (to Truth). Beyond any reasonable doubt, God does not love those that do wrong. 4:107 Contend not on behalf of such as betray their own souls; for God loves not one given to perfidy and crime. 4:148 God loves not that evil should be noised abroad in public speech, except where injustice hath been done; for God is He who hears and knows all things.

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5:18 (Both) the Jews and the Christians say: "We are sons of God, and his beloved." Say: "Why then does He punish you for your sins? Nay, ye are but men,- of the men he has created: He forgives whom He pleases, and He punishes whom He pleases: and to God belongs the dominion of the heavens and the earth, and all that is between: and unto Him is the final goal (of all)". 61:13 And another (favour will He bestow,) which ye do love,- help from God and a speedy victory. So give the Glad Tidings to the Believers. 24:19 (57) Those who love (to see) scandal published broadcast among the Believers, will have a grievous Penalty in this life and in the Hereafter: God knows, and ye know not. 29:25 (61) And he said: "For you, you have taken (for worship) idols besides God, out of mutual love and regard between yourselves in this life; but on the Day of Judgment you shall disown each other and curse each other: and your abode will be the Fire, and you shall have none to help." 5:87 O ye who believe! make not unlawful the good things which God has made lawful for you, but commit no excess. God does not love those given to excess. 16:107 This is because they love the life of this world better than the Hereafter: and God will not guide those who reject Faith.

4.7. The Principle of Love against Aggression Islamic theory emphases individual and collective self-defence when prevention of the aggression is not possible by any other means. However, the concept of love and forgiveness are the guiding principles: 2:190 Fight in the cause of God those who fight you, but do not transgress limits; for God loves not transgressors. 2:216 Fighting is prescribed for you, and ye dislike it. But it is possible that ye dislike a thing which is good for you, and that ye love a thing which is bad for you. But God knows, and ye know not. 3:146 How many of the prophets fought (in God's way), and with them (fought) Large bands of godly men? but they never lost heart if they met with disaster in God's way, nor did they weaken (in will) nor give in. And God loves those who are firm and steadfast. 49:9 If two parties among the Believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond bounds against the other, then fight ye (all) against the one that transgresses until it complies with the command of God; but if it complies, then make peace between them with justice, and be fair: for God loves those who are fair and just.

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61:4 Verily, God loves [only] those who fight in His cause in [solid] ranks, as though they were a building firm and compact. 5:54 (30) O ye who believe! if any from among you turn back from his Faith, soon will God produce a people whom He will love as they will love Him,- lowly with the believers, mighty against the rejecters, fighting in the way of God, and never afraid of the reproaches of such as find fault. That is the grace of God, which He will bestow on whom He pleases. And God encompasses all, and He knows all things.

4.8. The Principle of Reconciliation with Love The metaphysics of morality in Islamic theory was not to create evil between its followers or non-followers but to understand the principle of reconciliation with love. Therefore, it says that: 56:37 Beloved (by nature), equal in age. 42:40 The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from God: for (God) does not loves those who do wrong. 3:76 Nay- Those that keep their plighted faith and act aright,-verily God loves those who act aright. 3:92 You cannot attain righteousness until you give to charity from the possessions you love. Whatever you give to charity, God is fully aware of. 2:276 God will deprive usury of all blessing, but will give increase for deeds of charity: For God does not love creatures ungrateful and wicked. 31:15 If they argue with you to commit shirk, of which you have no knowledge, then do not obey them; however you should still treat them kindly in this world, but follow the way of that individual who has turned to Me in love. After all, to Me is your return; then I will inform you about the reality of all that you have done." 19:96 On those who believe and work deeds of righteousness, will God Most Gracious bestow love.

4.9. The Principle of Uniting with Love The theory of Islamic law has been, from the beginning, to unite Arabs, nations, and states. Thus, the elements of righteousness, faith to justice and true heart with true love are its messages: 3:103 And hold fast, all together, by the rope which God (stretches out for you), and be not divided among yourselves; and remember with

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gratitude God's favour on you; for ye were enemies and He joined your hearts in love, so that by His Grace, ye became brethren; and ye were on the brink of the pit of Fire, and He saved you from it. Thus doth God make His Signs clear to you: That ye may be guided. 3:134 Those who spend (freely), whether in prosperity, or in adversity; who restrain anger, and pardon (all) men;- for God loves those who do good. 3:32 Say: "Obey God and His Messenger": But if they turn back, God does not love those who reject Faith. 3:57 As to those who believe and work righteousness, God will pay them in full their reward; but God does not love those who do wrong. 22:38 Verily God will defend (from ill) those who believe: verily, God loves not any that is a traitor to faith, or show ingratitude. 28:56 O Prophet, you cannot give guidance to whom you love, it is Allah Who gives guidance to whom He pleases, and He is quite aware of those who are guided.

4.10 The Principle of Justice with Love The true Islamic theory encourages love with justice and prohibits injustice. It says as follows: 7:55 Call on your Lord with humility and in private: for God does not loves those who trespass beyond bounds. 5:42 (They are fond of) listening to falsehood, of devouring anything forbidden. If they do come to thee, either judge between them, or decline to interfere. If thou decline, they cannot hurt thee in the least. If thou judge, judge in equity between them. God loves those who judge in equity. 9:7 How can there be a league, before God and His Messenger, with the Pagans, except those with whom ye made a treaty near the sacred Mosque? As long as these stand true to you, stand ye true to them: for God loves the righteous. 6:141 It is He Who produces gardens, with trellises and without, and dates, and tilts with produce of all kinds, and olives and pomegranates, similar (in kind) and different (in variety): eat of their fruit in their season, but render the dues that are proper on the day that the harvest is gathered. But waste not by excess: for God loves not the wasters. 5:93 On those who believe and do deeds of righteousness there is no blame for what they ate (in the past), when they guard themselves from evil, and believe, and do deeds of righteousness,- (or) again, guard

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themselves from evil and believe,- (or) again, guard themselves from evil and do good. For God loves those who do good. 9:4 (But the treaties are) not dissolved with those Pagans with whom ye have entered into alliance and who have not subsequently failed you in aught, nor aided any one against you. So fulfil your engagements with them to the end of their term: for God loves the righteous.

4.11. The Principle of Love Beyond Forgiveness Islamic theory emphasises the principle of forgiveness, even though we doubt its principles of justice in certain circumstances. 6:76 When the night covered him over, He saw a star: He said: "This is my Lord." But when it set, He said: "I love not those that set." 7:79 So Salih left them, saying: "O my people! I did indeed convey to you the message for which I was sent by my Lord: I gave you good counsel, but ye love not good counsellors!" 3:31 If ye do love God, Follow me: God will love you and forgive you your sins: For God is Oft-Forgiving, Most Merciful.

CHAPTER TWENTY CONCLUDING WITH THE OPUS OF INJUSTICE

It would be unjustifiable to criticise an argument unless that argument is first stated both adequately and comparatively. For obvious reasons, it is less simple to answer a poignant argument than a rational one. We know that miscarriages of justice occur frequently in the application of criminal rules, and such errors are caused by factors often present in our judgments of truth. “None of you truly believes until he wishes for his brother what he wishes for himself.”1 Shariah theory has never intended to bring injustice into the world nor has it been to separate man from man, to divide wealth and social taxation unequally, or to give power to authorities under the name of Islam to kill others. We should remember that the first source of Islamic law commands Muslims to judge with justice, not with religion. By no definition can all principles, regulations, rules, provisions or laws that lack facets of compassion, forgiveness, judiciousness, gentleness, kindness, and concern be considered to be part of Islamic law. In one word, Shariah means equality; in another, it means a measure of justice; and, thirdly, it means equality of justice with love. However, we know that it has never been respected and its violations have been frequent. Therefore, there seems to be a misunderstanding about the substance of Islamic philosophy as in Immanuel Kant’s theory by Hitler and Marx’ views by Stalin. Stalin envisioned himself as the next Lenin, just as many Islamic leaders envisioned themselves as the next Imam.2 Conversely, Abraham Lincoln would never have considered assassinating Martin Luther King, Malcolm X, and Patrice Emery Lumumba.3 The creation of an Islamic international criminal court is definitely imperative, and the legal and political authorities of the world should 1

The second source of the Islamic law. Imam or Ayatollah means ‘sign of God’. These titles are given to high ranking authorities in Islamic philosophy, a practice that is actually wrongful according to pure Islamic theory. 3 The US-sponsored plot to kill Patrice Lumumba constituting the most inhuman assassination of the 20th century. 2

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realise this fact. Most Islamic authorities have practiced Shariah very viciously. This practice has divided not only the basic theory of Islam but also the basic theory of universal humanity. Despite the fact that pure Islamic law is ignored by many political authorities in Islamic states, the purpose and intention of Islamic law is to bring human beings together for the furtherance of love, the unity of mankind, and the maintenance of justice with ethical and philosophical principles of criminal law. This means that an Islamic lawyer or judge is empowered to interpret the law to further the principles of humanity. This means that so long as the principles of criminal law of neighbouring countries or others do not contradict the principles of human rights law or Islamic law, they are considered an integral part of Shariah and are consequently permitted to be implemented as part of Islamic law. The internationalization of human rights law in Islamic law has been one of the fundamental developments in the transformation of positive and natural rights of man into a global perspective. Any realistic international lawyer cannot deny the presence of human rights law in the inner structure of both legal systems.4

A tale from the Berbers of the High Mountains describes for us the philosophy behind the perpetual separation of justice and injustice in the actions of human beings and in the world of Shariah – a theory that aims to strengthen the notion of enlightenment and diminish ignorance in man’s justice. Once upon a time, Justice was a neighbour to Injustice. One day Injustice asked Justice to join him on a pilgrimage to a temple, which was rather far from their homes. You should prepare your provisions well. This is because the voyage is a long one. Said Injustice. The voyage of the voyagers began the next day. They sailed during the day and each ate his own meal from his own belongings and provisions. Injustice did not eat more than a few dates and a mouthful of water. Justice could observe this. Justice asked Injustice the reason why he was not eating his food. Injustice replied, giving the same answer each time. 4

Farhad Malekian, Farhad Malekian ‘Comparative Substantive International Criminal Justice’, in Ronald Slye (ed.),The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (2017), pp.10-44, at 17.

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I am not so hungry. During the voyage, it seemed that he was fasting but not making it public. In contrast, when they were voyaging back to home, Justice discovered that he was short of meal provisions. However, on the first evening, Injustice lifted a handful of meat from his provisions and ate it covetously with bread, butter, and honey. Injustice offered nothing to Justice. Justice reproached him for his lack of moral behaviour, but Injustice laughed at his companion’s naïve spiritual nature. The next day, Justice expected some gesture on the part of his neighbour. Obviously, Justice was wrong and fully unaware of the ill nature of Injustice. Finally, Justice told Injustice, I am weak. Injustice told him, if you wish to eat from my food, you must pay me. Justice replied, but I have nothing to pay you. However, I will pay you when we return home. Injustice answered, since you want to eat now, you should also pay now. Justice asked what he wanted. You must give me one of your eyes. Justice’s heart sank when he realised the game and his own naïveté. Justice was hesitant about fulfilling the unfair provisions of Injustice. At the end of the day, Justice complied with Injustice’s condition. Justice thought it better to live with one eye than to die. The oral pact was completed instantly. The next day Justice tried to fight against his hunger and thirst, but could not resist long and conceded his other eye to Injustice for a small amount of food. Then Justice became blind and went into the desert.5 Yes, the International Criminal Court, the ad hoc international criminal tribunals, and even the system of an Islamic international criminal court cannot be just and authentic as long as injustice is in a struggle with justice. The reality is that justice can never be achieved when injustice is devoid of justice. This can be seen in the basic structure of the United Nations Security Council, where the definition of justice itself is 5

Lawrence Rosen, Justice in Islamic Culture and Law in R.S. Khare, Perspective on Islamic Law, Justice, and Society (Oxford: Rowman & Littlefield Publishers, 1999), pp. 55-61, at 45-46.

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monopolised by the permanent members. This can also be seen in the inner structure of the Islamic theory of justice where justice is the private sovereignty of those who have the power over the interpretation of Islamic rules, who construe them as they wish, and who apply them with full variations from case to case because of their religious and political power. This means the full humiliation, monopolisation, and destruction of the integrity of Islamic justice at the hands and with the minds of Islamic injustice. The power of injustice and its full capacity to control the meaning and practical application of justice can also be observed in the practice of many authorities from national legislations that claim to distribute and guarantee the application of international human rights law, while their real attitude is quite different. It is therefore not without reason that the world is now facing the most horrible examples of an unjust application of Islamic rules by the most serious criminals, namely ISIS, or by certain legal and political authorities of particular Islamic states.6 If Islamic legal rules had been applied correctly throughout the long history of civilisation, if Islamic judicial rules had not been abused by Islamic political authorities, if Islamic criminal justice did not have just a one-eyed justice, if Islamic rulers were wise enough – as they claim to be with their crocodile tears í, and if Islamic law were implemented on the principle of humanity, we would not have ISIS today. Certainly, ISIS is the product of the intelligence agencies of big political players but the blame should also be placed on influential religious Islamic rulers whose numerous collaborations in money laundering and in soiled political laundering have assisted in the collapse of the golden age of Islamic law. Political laundering implies the process of criminal exchanges between different groups in order to misdirect the original policies and, consequently, to control a nation or nations without being identified in normal international political relations. The events of 11 September 2001 are an obvious example. Nations may be left grappling with the political madness of the supreme authorities in the world. 6

Briefly, ‘Justice, equity, liberty and due balance are the soul of all rules of conduct which are designed to remove injustice arising out of the eternal problem of ‘conflicting interests’ in the socio-economic affairs. For the purpose of ensuring just ordering of the society SharƯaht permits employment of the necessary means and where this purpose could be achieved only by driving people of the so-called individual right (principally right of ownership of wealth) then the same must be adopted. ... SharƯaht demands that particular interest must yield to collective interest (to ensure) a just distribution of wealth or resources.’ Mohd Tagi Amini, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009), p.9.

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The intention of Islamic unity of humankind, the purpose of Kant’s philosophy on reducing the propensity to evil in human nature, and the aim of Marx to establish permanent communality have never been achieved and will never truly progress. Many authoritative Islamic leaders today have a nature worse than wolves. They have killed justice with their greed for money. A true Muslim, a real member of the Islamic State (ISIS), and a good leader would not violate Islamic rules and principles. They also would not violate any Western rules. Islamic theory should be the art of conversation, negotiation, forgiveness, and brotherhood rather than to kill or to practise politics. Jean-Jacques Rousseau, one of the greatest philosophers of all time, correctly describes the Western and non-Western greed and savagery of civilisation: Hence although men had become less forbearing, and although natural pity had already undergone some alteration, this period of the development of human faculties, maintaining a middle position between the indolence of our primitive state and the petulant activity of our egocentrism, must have been the happiest and most durable epoch. The more one reflects on it, the more one finds that this state was the least subject to upheavals and the best for man, and that he must have left it only by virtue of some fatal chance happening that, for the common good, ought never to have happened. The example of savages, almost all of whom have been found in this state, seems to confirm that the human race had been made to remain in it always; that this state is the veritable youth of the world; and that all the subsequent progress has been in appearance so many steps toward the perfection of the individual, and in fact toward the decay of the species.7

In theory, Islamic law is supposed to be a faithful ideology and brotherhood, not politics or cruel and inhumane punishments. Both politics and punishments inevitably tend to produce cruelty against the believers. This has to be understood by present and future generations supporting the hypothesis of Shariah. In proposing to expunge from the Statute of the Quran certain cruel punishments, I am not unaware of the opposition to my statement by some Muslims. However, the intention to modify cruel rules is not to deny Islamic theory but quite to the contrary. In particular, our criminal code has been humanised over time, and severe punishments have slowly disappeared from its codification. This progress, however, has been a slow 7 Jean-Jacques Rousseau, Discourse on the Origin of Inequality, part two: The Basic Political Writings, Hackett (1754), p.65.

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and agonizing improvement. Examples are the abolition of capital punishment, the extraction of confession by torture, and banishment to death by starvation. Darwin was right. Human beings evolved from animal nature, with the difference that, in the implementation of punishment, the human being is the most dangerous animal that has ever proven to have evolved. Laws to punish the violators of Islamic criminal law are neither good for the victims nor for the convicted. This diminishes the value of Islamic law. Islamic basic theory does not support revenge but love. That is why it encourages forgiveness. Albert Einstein teaches us to ‘Never regard study as a duty, but as the enviable opportunity to learn to know the liberating influence of beauty in the realm of the spirit for your own personal joy and to the profit of the community to which your later work belongs.’ Zoroaster makes us aware of the fact that ‘Doing good to others is not a duty, it is a joy, for it increases our own health and happiness.’ Buddha enlightens us by asserting that ‘To keep the body in good health is a duty...otherwise we shall not be able to keep our mind strong and clear.’ And Mother Teresa reinforces all this by pointing out that ‘We cannot all do great things, but we can do small things with great love’. Regrettably, political authorities are well aware of the fact that faith is ‘the opium of the masses,’ and, as a result, they use it as a weapon to commit atrocities against human beings. Yes, it is our own choice to listen to the miraculous musical compositions of Ludwig van Beethoven (1770–1827), such as Heilger Dankgesang of the Opus 132, or to continue our religious conversation without any practical end.

BASIC DOCUMENTS IN ISLAMIC INTERNATIONAL CRIMINAL COURT

Terms and their Definitions Allah Al-nasab Agel ArkƗn al-IslƗm ArkƗn al-dƯn Bulugh Diyha Fard al-ayn Fatwa Fiqh Fuqaha Hadd Hadith Hanafi Hanbali Hudud Hadd Ijma’ Ijtihad Imam Ja’fari Khalifa Kulliyyat Mafasid Maliki Nafs Qisas Qiyas Quran (Q) Salat

God Offspring Capacity for reason Core principles of Islamic religion Core principle of Islamic religion Age of criminal responsibility Financial Compensation Compulsory duty (of a Muslim) Opinion stated by an Islamic jurist/doctrine/Islamic scholar Interpretation of Islamic jurisprudence Islamic jurists (singular faqih) Claim against God / fixed Punishment Sayings of the Prophet Muhammad Sunni school of jurisprudence Sunni school of jurisprudence Punishments Punishment Collective reasoning Scholarly discretion/doctrine Priest Shi‘a school of jurisprudence Islamic ruler The core principle of Islamic religion Harm (for the individual and society) Sunni school of jurisprudence passions Punitive retribution Individual reasoning The main source of Islam Prayer

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Shafi‘I Shahada Shariah Shi‘a Sunnah Sunni Surah Tazir Ummah Uqubat ‘Urf Zakat Zina

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Sunni school of jurisprudence There is solely one God and Muhammad is the messenger of Allah Islamic law One of the two branches of Islam The manners and recommendations of prophet One of the two branches of Islam A chapter of Quran One of the categories of crimes people of Islam/prophet Punishment Customs/traditions Tax/donations Adultery

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Some of the Letters addressed by Prophet to the Kings The Prophet send his envoys and invited different powers to enter into Islam. The invitation started in Muharram 628 and continued thereafter. All these envoys had letters to the rulers of the relevant land and invited to accept Islam. These envoys went to Heraclius, the Roman Emperor, the Kings of Iran, Egypt (the King of Egypt was then a vassal of the Kaiser) and Abyssinia. They went to other kings and rulers too.1

Letter to the Kaiser The text of the letter addressed to the Kaiser was taken by Dihya Kalbira and declares that: From Muhammad (saw), the Servant of God and His Messenger. To the Chief of Rome, Heraclius. Whoever treads the path of divine guidance, on him be peace. After this, O King, I invite you to Islam. Become a Muslim. God will protect you from all afflictions, and reward you twice over. But if you deny and refuse to accept this Message, then the sin not only of your own denial, but of the denial of your subjects, will be on your head. “Say, ‘O People of the Book! come to a word equal between us and you that we worship none but Allah, and that we associate no partner with Him, and that some of us take not others for lords beside Allah.’ But if they turn away, then say, ‘Bear witness that we have submitted to God’ ” (Zurqani ).

Letter to the King of Iran This letter was delivered by Abdullah bin Hudhafara. It reads that: In the name of Allah, the Gracious, the Merciful. This letter is from Muhammad (saw), the Messenger of God, to Chosroes, the Chief of Iran. Whoever submits to a perfect guidance, and believes in Allah, and bears witness that Allah is One, and has no equal or partner, and that Muhammad (saw) is His Servant and Messenger, on him be peace. O King, under the command of God, I invite you to Islam. For I have been sent by God as His Messengers to all mankind, so that I may warn all living men and complete my Message for all unbelievers. Accept Islam and protect yourself from all afflictions. If you reject this invitation, then 1 https://themuslimtimes.info/2013/02/04/prophet-mohammad-saws-letters-to-variouskings/

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the sin of the denial of all your people will rest on your head. (Zurqani and Khamis).

The Letter to the Negus, the King of Abyssinia The letter to Negus, King of Abyssinia, was handled by ‘Amr bin Umayyah al-Damri. It declares that: In the name of Allah, the Gracious, the Merciful, Muhammad (saw), the Messenger of God, writes to the Negus, King of Abyssinia. O King, peace of God be upon you. I praise before you the One and Only God. None else is worthy of worship. He is the King of kings, the source of all excellences, free from all defects, He provides peace to all His servants and protects His creatures. I bear witness that Jesus, son of Mary (as) was a Messenger of God, who came in fulfilment of promises made to Mary by God. Mary had consecrated her life to God. I invite you to join with me in attaching ourselves to the One and Only God and in obeying Him. I invite you also to follow me and believe in the God Who hath sent me. I am His Messenger. I invite you and your armies to join the Faith of the Almighty God. I discharge my duty hereby. I have delivered to you the Message of God, and made clear to you the meaning of this Message. I have done so in all sincerity and I trust you will value the sincerity which has prompted this message. He who obeys the guidance of God becomes heir to the blessings of God (Zurqani).

The Letter to the Ruler of Egypt The letter to Muqauqis was delivered by Hatib ibn Abi Balta‘ara. The text of the letter was similar to the letter to Roman Emperor. It informs as follows: In the name of Allah, the Gracious, the Merciful. This letter is from Muhammad (saw), the Messenger of Allah, to Muqauqis, the Chief of the Copts. Peace be upon him who follows the path of rectitude. I invite you to accept the Message of Islam. Believe and you will be saved and your reward will be twofold. If you disbelieved, the sin of the denial of the Copts will also be on your head. Say, “O People of the Book! come to a word equal between us and you that we worship none but Allah, and that we associate no partner with Him, and that some of us take not others for lords beside Allah. But if they turn away, then say, ‘Bear witness that we have submitted to God.'” (Halbiyya, Vol. 3, p. 275).

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The Letter to the Chief of Bahrain The letter to Mundhir Taimi, the Chief of Bahrain, was passed by ‘Ala’ ibn Hadramira. The text of this letter is not accessible, but is seems from the second letter of the prophet that it was successful. The second letter says: I am glad at your acceptance of Islam. Your duty is to obey the delegates and messengers whom I should send to you. Whoever obeys them, obeys me. The messenger who took my letter to you praised you to me, and assured me of the sincerity of your belief. I have prayed to God for your people. Try, therefore, to teach them the ways and practices of Islam. Protect their property. Do not let anyone have more than four wives. The sins of the past are forgiven. As long as you are good and virtuous you will continue to rule over your people. As for Jews and Magians, they have only to pay a tax. Do not, therefore, make any other demands on them. As for the general population, those who do not have land enough to maintain them should have four dirhams each, and some cloth to wear. (Zurqani and Khamis).

UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS1 Contents Foreword Preamble I Right to Life II Right to Freedom III Right to Equality and Prohibition Against Impermissible Discrimination IV Right to Justice V Right to Fair Trial VI Right to Protection Against Abuse of Power VII Right to Protection Against Torture VIII Right to Protection of Honour and Reputation IX Right to Asylum X Rights of Minorities XI Right and Obligation to Participate in the Conduct and Management of Public Affairs XII Right to Freedom of Belief, Thought and Speech XIII Right to Freedom of Religion XIV Right to Free Association XV The Economic Order and the Rights Evolving There from XVI Right to Protection of Property XVII Status and Dignity of Workers XVIII Right to Social Security XIX Right to Found a Family and Related Matters XX Rights of Married Women XXI Right to Education XXII Right of Privacy XXIII Right to Freedom of Movement and Residence Explanatory Notes Glossary of Arabic Terms References

1

Adopted by the Islamic Council of Europe on 19 September 1981/21 Dhul Qaidah 1401.

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This is a declaration for mankind, a guidance and instruction to those who fear God. (Al Qur'an, Al-Imran 3:138)

Foreword Islam gave to mankind an ideal code of human rights fourteen centuries ago. These rights aim at conferring honour and dignity on mankind and eliminating exploitation, oppression and injustice. Human rights in Islam are firmly rooted in the belief that God, and God alone, is the Law Giver and the Source of all human rights. Due to their Divine origin, no ruler, government, assembly or authority can curtail or violate in any way the human rights conferred by God, nor can they be surrendered. Human rights in Islam are an integral part of the overall Islamic order and it is obligatory on all Muslim governments and organs of society to implement them in letter and in spirit within the framework of that order. It is unfortunate that human rights are being trampled upon with impunity in many countries of the world, including some Muslim countries. Such violations are a matter of serious concern and are arousing the conscience of more and more people throughout the world. I sincerely hope that this Declaration of Human Rights will give a powerful impetus to the Muslim peoples to stand firm and defend resolutely and courageously the rights conferred on them by God. This Declaration of Human Rights is the second fundamental document proclaimed by the Islamic Council to mark the beginning of the 15th Century of the Islamic era, the first being the Universal Islamic Declaration announced at the International Conference on The Prophet Muhammad (peace and blessings be upon him) and his Message, held in London from 12 to 15 April 1980. The Universal Islamic Declaration of Human Rights is based on the Qur'an and the Sunnah and has been compiled by eminent Muslim scholars, jurists and representatives of Islamic movements and thought. May God reward them all for their efforts and guide us along the right path. Paris 21 Dhul Qaidah 1401 Salem Azzam19th September 1981 Secretary General O men! Behold, We have created you all out of a male and a female, and have made you into nations and tribes, so that you might come to know one another. Verily, the noblest of you in the sight of God is the one who is most deeply conscious of Him. Behold, God is all-knowing, all aware. (Al Qur'an, Al-Hujurat 49:13)

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Preamble WHEREAS the age-old human aspiration for a just world order wherein people could live, develop and prosper in an environment free from fear, oppression, exploitation and deprivation, remains largely unfulfilled; WHEREAS the Divine Mercy unto mankind reflected in its having been endowed with super-abundant economic sustenance is being wasted, or unfairly or unjustly withheld from the inhabitants of the earth; WHEREAS Allah (God) has given mankind through His revelations in the Holy Qur'an and the Sunnah of His Blessed Prophet Muhammad an abiding legal and moral framework within which to establish and regulate human institutions and relationships; WHEREAS the human rights decreed by the Divine Law aim at conferring dignity and honour on mankind and are designed to eliminate oppression and injustice; WHEREAS by virtue of their Divine source and sanction these rights can neither be curtailed, abrogated or disregarded by authorities, assemblies or other institutions, nor can they be surrendered or alienated; Therefore we, as Muslims, who believe a) in God, the Beneficent and Merciful, the Creator, the Sustainer, the Sovereign, the sole Guide of mankind and the Source of all Law; b) in the Vicegerency (Khilafah) of man who has been created to fulfil the Will of God on earth; c) in the wisdom of Divine guidance brought by the Prophets, whose mission found its culmination in the final Divine message that was conveyed by the Prophet Muhammad (Peace be upon him) to all mankind; d) that rationality by itself without the light of revelation from God can neither be a sure guide in the affairs of mankind nor provide spiritual nourishment to the human soul, and, knowing that the teachings of Islam represent the quintessence of Divine guidance in its final and perfect form, feel duty-bound to remind man of the high status and dignity bestowed on him by God; e) in inviting all mankind to the message of Islam; f) that by the terms of our primeval covenant with God our duties and obligations have priority over our rights, and that each one of us is under a bounden duty to spread the teachings of Islam by word, deed, and indeed in all gentle ways, and to make them effective not only in our individual lives but also in the society around us; g) in our obligation to establish an Islamic order: i) wherein all human beings shall be equal and none shall enjoy a privilege or suffer a disadvantage or discrimination by reason of race, colour, sex, origin or language; ii) wherein all human beings are born free; iii) wherein slavery and forced labour are abhorred; iv) wherein conditions shall be established such that the institution of family shall be preserved, protected and honoured as the basis of all social life; v) wherein the rulers and the ruled alike are subject to, and equal before, the Law;

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vi) wherein obedience shall be rendered only to those commands that are in consonance with the Law; vii) wherein all worldly power shall be considered as a sacred trust, to be exercised within the limits prescribed by the Law and in a manner approved by it, and with due regard for the priorities fixed by it; viii) wherein all economic resources shall be treated as Divine blessings bestowed upon mankind, to be enjoyed by all in accordance with the rules and the values set out in the Quran and the Sunnah; ix) wherein all public affairs shall be determined and conducted, and the authority to administer them shall be exercised after mutual consultation (Shura) between the believers qualified to contribute to a decision which would accord well with the Law and the public good; x) wherein everyone shall undertake obligations proportionate to his capacity and shall be held responsible pro rata for his deeds; xi) wherein everyone shall, in case of an infringement of his rights, be assured of appropriate remedial measures in accordance with the Law; xii) wherein no one shall be deprived of the rights assured to him by the Law except by its authority and to the extent permitted by it; xiii) wherein every individual shall have the right to bring legal action against anyone who commits a crime against society as a whole or against any of its members; xiv) wherein every effort shall be made to (a) secure unto mankind deliverance from every type of exploitation, injustice and oppression, (b) ensure to everyone security, dignity and liberty in terms set out and by methods approved and within the limits set by the Law; Do hereby, as servants of Allah and as members of the Universal Brotherhood of Islam, at the beginning of the Fifteenth Century of the Islamic Era, affirm our commitment to uphold the following inviolable and inalienable human rights that we consider are enjoined by Islam. I. Right to Life a) Human life is sacred and inviolable and every effort shall be made to protect it. In particular no one shall be exposed to injury or death, except under the authority of the Law. b) Just as in life, so also after death, the sanctity of a person's body shall be inviolable. It is the obligation of believers to see that a deceased person's body is handled with due solemnity. II. Right to Freedom a) Man is born free. No inroads shall be made on his right to liberty except under the authority and in due process of the Law. b) Every individual and every people has the inalienable right to freedom in all its forms¾ physical, cultural, economic and political — and shall be entitled to

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struggle by all available means against any infringement or abrogation of this right; and every oppressed individual or people has a legitimate claim to the support of other individuals and/or peoples in such a struggle. III. Right to Equality and Prohibition Against Impermissible Discrimination a) All persons are equal before the Law and are entitled to equal opportunities and protection of the Law. b) All persons shall be entitled to equal wage for equal work. c ) No person shall be denied the opportunity to work or be discriminated against in any manner or exposed to greater physical risk by reason of religious belief, colour, race, origin, sex or language. IV. Right to Justice a) Every person has the right to be treated in accordance with the Law, and only in accordance with the Law. b) Every person has not only the right but also the obligation to protest against injustice; to recourse to remedies provided by the Law in respect of any unwarranted personal injury or loss; to self-defence against any charges that are preferred against him and to obtain fair adjudication before an independent judicial tribunal in any dispute with public authorities or any other person. c) It is the right and duty of every person to defend the rights of any other person and the community in general (Hisbah). d) No person shall be discriminated against while seeking to defend private and public rights. e) It is the right and duty of every Muslim to refuse to obey any command which is contrary to the Law, no matter by whom it may be issued.

V. Right to Fair Trial a) No person shall be adjudged guilty of an offence and made liable to punishment except after proof of his guilt before an independent judicial tribunal. b) No person shall be adjudged guilty except after a fair trial and after reasonable opportunity for defence has been provided to him. c) Punishment shall be awarded in accordance with the Law, in proportion to the seriousness of the offence and with due consideration of the circumstances under which it was committed. d) No act shall be considered a crime unless it is stipulated as such in the clear wording of the Law. e) Every individual is responsible for his actions. Responsibility for a crime cannot be vicariously extended to other members of his family or group, who are not otherwise directly or indirectly involved in the commission of the crime in question.

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VI. Right to Protection Against Abuse of Power Every person has the right to protection against harassment by official agencies. He is not liable to account for himself except for making a defence to the charges made against him or where he is found in a situation wherein a question regarding suspicion of his involvement in a crime could be reasonably raised VII. Right to Protection Against Torture No person shall be subjected to torture in mind or body, or degraded, or threatened with injury either to himself or to anyone related to or held dear by him, or forcibly made to confess to the commission of a crime, or forced to consent to an act which is injurious to his interests. VIII. Right to Protection of Honour and Reputation Every person has the right to protect his honour and reputation against calumnies, groundless charges or deliberate attempts at defamation and blackmail. IX. Right to Asylum a) Every persecuted or oppressed person has the right to seek refuge and asylum. This right is guaranteed to every human being irrespective of race, religion, colour and sex. b) Al Masjid Al Haram (the sacred house of Allah) in Mecca is a sanctuary for all Muslims. X. Rights of Minorities a) The Qur'anic principle "There is no compulsion in religion" shall govern the religious rights of non-Muslim minorities. b) In a Muslim country religious minorities shall have the choice to be governed in respect of their civil and personal matters by Islamic Law, or by their own laws. XI. Right and Obligation to Participate in the Conduct and Management of Public Affairs a) Subject to the Law, every individual in the community (Ummah) is entitled to assume public office. b) Process of free consultation (Shura) is the basis of the administrative relationship between the government and the people. People also have the right to choose and remove their rulers in accordance with this principle.

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a) Every person has the right to express his thoughts and beliefs so long as he remains within the limits prescribed by the Law. No one, however, is entitled to disseminate falsehood or to circulate reports which may outrage public decency, or to indulge in slander, innuendo or to cast defamatory aspersions on other persons. b) Pursuit of knowledge and search after truth is not only a right but a duty of every Muslim. c) It is the right and duty of every Muslim to protest and strive (within the limits set out by the Law) against oppression even if it involves challenging the highest authority in the state. d) There shall be no bar on the dissemination of information provided it does not endanger the security of the society or the state and is confined within the limits imposed by the Law. e) No one shall hold in contempt or ridicule the religious beliefs of others or incite public hostility against them; respect for the religious feelings of others is obligatory on all Muslims. XIII. Right to Freedom of Religion Every person has the right to freedom of conscience and worship in accordance with his religious beliefs. XIV. Right to Free Association a) Every person is entitled to participate individually and collectively in the religious, social, cultural and political life of his community and to establish institutions and agencies meant to enjoin what is right (ma'roof) and to prevent what is wrong (munkar). b) Every person is entitled to strive for the establishment of institutions where under an enjoyment of these rights would be made possible. Collectively, the community is obliged to establish conditions so as to allow its members full development of their personalities. XV. The Economic Order and the Rights Evolving Therefrom a) In their economic pursuits, all persons are entitled to the full benefits of nature and all its resources. These are blessings bestowed by God for the benefit of mankind as a whole. b) All human beings are entitled to earn their living according to the Law. c) Every person is entitled to own property individually or in association with others. State ownership of certain economic resources in the public interest is legitimate. d) The poor have the right to a prescribed share in the wealth of the rich, as fixed by Zakah, levied and collected in accordance with the Law.

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e) All means of production shall be utilised in the interest of the community (Ummah) as a whole, and may not be neglected or misused. f) In order to promote the development of a balanced economy and to protect society from exploitation, Islamic Law forbids monopolies, unreasonable restrictive trade practices, usury, the use of coercion in the making of contracts and the publication of misleading advertisements. g) All economic activities are permitted provided they are not detrimental to the interests of the community(Ummah) and do not violate Islamic laws and values. XVI. Right to Protection of Property No property may be expropriated except in the public interest and on payment of fair and adequate compensation. XVII. Status and Dignity of Workers Islam honours work and the worker and enjoins Muslims not only to treat the worker justly but also generously. He is not only to be paid his earned wages promptly, but is also entitled to adequate rest and leisure. XVIII. Right to Social Security Every person has the right to food, shelter, clothing, education and medical care consistent with the resources of the community. This obligation of the community extends in particular to all individuals who cannot take care of themselves due to some temporary or permanent disability. XIX. Right to Found a Family and Related Matters a) Every person is entitled to marry, to found a family and to bring up children in conformity with his religion, traditions and culture. Every spouse is entitled to such rights and privileges and carries such obligations as are stipulated by the Law. b) Each of the partners in a marriage is entitled to respect and consideration from the other. c) Every husband is obligated to maintain his wife and children according to his means. d) Every child has the right to be maintained and properly brought up by its parents, it being forbidden that children are made to work at an early age or that any burden is put on them which would arrest or harm their natural development. e) If parents are for some reason unable to discharge their obligations towards a child it becomes the responsibility of the community to fulfil these obligations at public expense. f) Every person is entitled to material support, as well as care and protection, from his family during his childhood, old age or incapacity. Parents are entitled to material support as well as care and protection from their children.

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g) Motherhood is entitled to special respect, care and assistance on the part of the family and the public organs of the community (Ummah). h) Within the family, men and women are to share in their obligations and responsibilities according to their sex, their natural endowments, talents and inclinations, bearing in mind their common responsibilities toward their progeny and their relatives. i) No person may be married against his or her will, or lose or suffer diminution of legal personality on account of marriage. XX. Rights of Married Women Every married woman is entitled to: a) live in the house in which her husband lives; b) receive the means necessary for maintaining a standard of living which is not inferior to that of her spouse, and, in the event of divorce, receive during the statutory period of waiting (iddah) means of maintenance commensurate with her husband's resources, for herself as well as for the children she nurses or keeps, irrespective of her own financial status, earnings, or property that she may hold in her own rights; c) seek and obtain dissolution of marriage (Khul'a) in accordance with the terms of the Law. This right is in addition to her right to seek divorce through the courts. d) inherit from her husband, her parents, her children and other relatives according to the Law; e) strict confidentiality from her spouse, or ex-spouse if divorced, with regard to any information that he may have obtained about her, the disclosure of which could prove detrimental to her interests. A similar responsibility rests upon her in respect of her spouse or ex-spouse. XXI. Right to Education a) Every person is entitled to receive education in accordance with his natural capabilities. b) Every person is entitled to a free choice of profession and career and to the opportunity for the full development of his natural endowments. XXII. Right of Privacy Every person is entitled to the protection of his privacy. XXIII Right to Freedom of Movement and Residence a) In view of the fact that the World of Islam is veritably Ummah Islamia, every Muslim shall have the right to freely move in and out of any Muslim country. b) No one shall be forced to leave the country of his residence, or be arbitrarily deported there from without recourse to due process of Law.

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Explanatory Notes 1 In the above formulation of Human Rights, unless the context provides otherwise: a) the term 'person' refers to both the male and female sexes. b) the term 'Law' denotes the Shari'ah, i.e. the totality of ordinances derived from the Qur'an and the Sunnah and any other laws that are deduced from these two sources by methods considered valid in Islamic jurisprudence. 2 Each one of the Human Rights enunciated in this declaration carries a corresponding duty. 3 In the exercise and enjoyment of the rights referred to above every person shall be subject only to such limitations as are enjoined by the Law for the purpose of securing the due recognition of, and respect for, the rights and the freedom of others and of meeting the just requirements of morality, public order and the general welfare of the Community (Ummah). The Arabic text of this Declaration is the original. Glossary of Arabic Terms SUNNAH - The example or way of life of the Prophet (peace be upon him), embracing what he said, did or agreed to. KHALIFAH - The vicegerency of man on earth or succession to the Prophet, transliterated into English as the Caliphate. HISBAH - Public vigilance, an institution of the Islamic State enjoined to observe and facilitate the fulfilment of right norms of public behaviour. The "Hisbah" consists in public vigilance as well as an opportunity to private individuals to seek redress through it. MA'ROOF - Good act. MUNKAR - Reprehensible deed. ZAKAH - The 'purifying' tax on wealth, one of the five pillars of Islam obligatory on Muslims. 'IDDAH - The waiting period of a widowed or divorced woman during which she is not to re-marry. KHUL'A - Divorce a woman obtains at her own request. UMMAH ISLAMIA - World Muslim community. SHARI'AH - Islamic law. References Note: The Roman numerals refer to the topics in the text. The Arabic numerals refer to the Chapter and the Verse of the Qur'an, i.e. 5:32 means Chapter 5, Verse 32. I. 1 Qur'an Al-Maidah 5:32 2 Hadith narrated by Muslim, Abu Daud,Tirmidhi, Nasai

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3 Hadith narrated by Bukhari II. 4 Hadith narrated by Bukhari, Muslim 5 Sayings of Caliph Umar 6 Qur'an As-Shura 42:41 7 Qur'an Al-Hajj 22:41 III. 8 From the Prophet's address 9 Hadith narrated by Bukhari, Muslim, Abu Daud, Tirmidhi, Nasai 10 From the address of Caliph Abu Bakr 11 From the Prophet's farewell address 12 Qur'an Al-Ahqaf 46:19 13 Hadith narrated by Ahmad 14 Qur'an Al-Mulk 67:15 15 Qur'an Al-Zalzalah 99:7-8 IV. 16 Qur'an An-Nisa 4:59 17 Qur 'an Al-Maidah 5:49 18 Qur'an An-Nisa 4:148 19 Hadith narrated by Bukhari, Muslim, Tirmidhi 20 Hadith narrated by Bukhari, Muslim 2l Hadith narrated by Muslim, Abu Daud, Tirmdhi, Nasai 22 Hadith narrated by Bukhari, Muslim, Abu Daud, Tirmidhi, Nasai 23 Hadith narrated by Abu Daud, Tirmidhi 24 Hadith narrated by Bukhari, Muslim, Abu Daud, Tirmidhi, Nasai 25 Hadith narrated by Bukhari V. 26 Hadith narrated by Bukhari, Muslim 27 Qur'an Al-Isra 17:15 28 Qur'an Al-Ahzab 33:5 29 Qur'an Al-Hujurat 49:6 30 QuranAn-Najm 53:28 31 QuranAl Baqarah 2:229 32 Hadith narrated by Al Baihaki, Hakim 33 QuranAl-Isra 17:15 34 QuranAt-Tur 52:21 35 Qur'an Yusuf 12:79 VI. 36 Qur'an Al Ahzab 33:58 VII. 37 Hadith narrated by Bukhari, Muslim, Abu Daud, Tirmidhi, Nasai 38 Hadith narrated by Ibn Majah VIII. 39 From the Prophet's farewell address 40 Qur'an Al-Hujurat 49:12 41 Qur'an Al-Hujurat 49:11 IX. 42 Qur'an At-Tawba 9:6 43 Qur'an Al-Imran 3:97 44 Qur'an Al-Baqarah 2:125 45 Qur'an Al-Hajj 22:25 X. 46 QuranAl Baqarah 2:256 47 Qur'an Al-Maidah 5:42 48 Qur'an Al-Maidah 5:43

Corpus Juris of Islamic International Criminal Justice 49 Qur'an Al-Maidah 5:47 XI. 50 Qur'an As-Shura 42:38 51 Hadith narated by Ahmad 52 From the address of Caliph Abu Bakr XII. 53 Qur'an Al-Ahzab 33:60-61 54 Qur'an Saba 34:46 55 Hadith narrated by Tirmidhi, Nasai 56 Qur'an An-Nisa 4:83 57 Qur'an Al-Anam 6:108 XIII. 58 Qur'an Al Kafirun 109:6 XIV. 59 Qur'an Yusuf 12:108 60 Qur'an Al-Imran 3:104 61 Qur'an Al-Maidah 5:2 62 Hadith narrated by Abu Daud, Tirmidhi,Nasai, Ibn Majah XV. 63 Qur'an Al-Maidah 5:120 64 Qur'an Al-Jathiyah 45:13 65 Qur'an Ash-Shuara 26:183 66 Qur'an Al-Isra 17:20 67 Qur'an Hud 11:6 68 Qur'an Al-Mulk 67:15 69 Qur'an An-Najm 53:48 70 Qur'an Al-Hashr 59:9 71 Qur'an Al-Maarij 70:24-25 72 Sayings of Caliph Abu Bakr 73 Hadith narrated by Bukhari, Muslim 74 Hadith narrated by Muslim 75 Hadith narrated by Muslim, Abu Daud,Tirmidhi, Nasai 76 Hadith narrated by Bukhari, Muslim, Abu Daud, Tirmidhi, Nasai 77 Qur'an Al-Mutaffifin 83:1-3 78 Hadith narrated by Muslim 79 Qur'an Al-Baqarah 2:275 80 Hadith narrated by Bukhari, Muslim,Abu Daud, Tirmidhi, Nasai XVI. 81 Qur'an Al Baqarah 2:188 82 Hadith narrated by Bukhari 83 Hadith narrated by Muslim 84 Hadith narrated by Muslim, Tirmidhi XVII. 85 Qur'an At-Tawbah 9:105 86 Hadith narrated by Abu Yala¾ Majma Al Zawaid 87 Hadith narrated by Ibn Majah 88 Qur'an Al-Ahqaf 46:19 89 Qur'an At-Tawbah 9:105 90 Hadith narrated by Tabarani¾ Majma Al Zawaid 91 Hadith narrated by Bukhari XVIII. 92 Qur'an Al-Ahzab 33:6 XIX. 93 Qur'an An-Nisa 4:1 94 Qur'an Al-Baqarah 2:228

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95 Hadith narrated by Bukhari, Muslim,Abu Daud, Tirmidhi, Nasai 96 Qur'an Ar-Rum 30:21 97 Qur'an At-Talaq 65:7 98 Qur'an Al-Isra 17:24 99 Hadith narrated by Bukhari, Muslim,Abu Daud, Tirmidhi 100 Hadith narrated by Abu Daud 101 Hadith narrated by Bukhari, Muslim 102 Hadith narrated by Abu Daud, Tirmidhi 103 Hadith narrated by Ahmad, Abu Daud XX. 104 Qur'an At-Talaq 65:6 105 Qur'an An-Nisa 4:34 106 Qur'an At-Talaq 65:6 107 Qur'an AtTalaq 65:6 108 Qur'an Al-Baqarah 2:229 109 Qur'an An-Nisa 4:12 110 Qur'an Al-Baqarah 2:237 XXI. 111 Qur'an Al-Isra 17:23-24 112 Hadith narrated by Ibn Majah 113 Qur'an Al-Imran 3:187 114 From the Prophet's farewell address 115 Hadith narrated by Bukhari, Muslim 116 Hadith narrated by Bukhari, Muslim,Abu Daud, Tirmidhi XXII. 117 Hadith narrated by Muslim 118 Qur'an Al-Hujurat 49:12 119 Hadith narrated by Abu Daud, Tirmidhi XXIII. 120 Qur'an Al-Mulk 67:15 121 Qur'an Al-Anam 6:11 122 Qur'an An-Nisa 4:97 123 Qur'an Al-Baqarah 2:217 124 Qur'an Al-Hashr 59:9

THE CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM1

The Member States of the Organization of the Islamic Conference, Reaffirming the civilizing and historical role of the Islamic Ummah which God made the best nation that has given mankind a universal and well-balanced civilization in which harmony is established between this life and the hereafter and knowledge is combined with faith; and the role that this Ummah should play to guide a humanity confused by competing trends and ideologies and to provide solutions to the chronic problems of this materialistic civilization. Wishing to contribute to the efforts of mankind to assert human rights, to protect man from exploitation and persecution, and to affirm his freedom and right to a dignified life in accordance with the Islamic Shariah Convinced that mankind which has reached an advanced stage in materialistic science is still, and shall remain, in dire need of faith to support its civilization and of a self-motivating force to guard its rights; Believing that fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion and that no one as a matter of principle has the right to suspend them in whole or in part or violate or ignore them in as much as they are binding divine commandments, which are contained in the Revealed Books of God and were sent through the last of His Prophets to complete the preceding divine messages thereby making their observance an act of worship and their neglect or violation an abominable sin, and accordingly every person is individually responsible — and the Ummah collectively responsible — for their safeguard. Proceeding from the above-mentioned principles, Declare the following:

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Adopted and Issued at the Nineteenth Islamic Conference of Foreign Ministers in Cairo on 5 August 1990.

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Article 1 (a) All human beings form one family whose members are united by submission to God and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the grounds of race, colour, language, sex, religious belief, political affiliation, social status or other considerations. True faith is the guarantee for enhancing such dignity along the path to human perfection. (b) All human beings are God’s subjects, and the most loved by him are those who are most useful to the rest of His subjects, and no one has superiority over another except on the basis of piety and good deeds. Article 2 (a) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to protect this right from any violation, and it is prohibited to take away life except for a Shariahprescribed reason. (b) It is forbidden to resort to such means as may result in the genocidal annihilation of mankind. (c) The preservation of human life throughout the term of time willed by God is a duty prescribed by Shariah. (d) Safety from bodily harm is a guaranteed right. It is the duty of the state to safeguard it, and it is prohibited to breach it without a Shariah-prescribed reason. Article 3 (a) In the event of the use of force and in case of armed conflict, it is not permissible to kill non-belligerents such as old men, women and children. The wounded and the sick shall have the right to medical treatment; and prisoners of war shall have the right to be fed, sheltered and clothed. It is prohibited to mutilate dead bodies. It is a duty to exchange prisoners of war and to arrange visits or reunions of the families separated by the circumstances of war. (b) It is prohibited to fell trees, to damage crops or livestock, and to destroy the enemy’s civilian buildings and installations by shelling, blasting or any other means. Article 4 Every human being is entitled to inviolability and the protection of his good name and honour during his life and after his death. The state and society shall protect his remains and burial place. Article 5 (a) The family is the foundation of society, and marriage is the basis of its formation. Men and women have the right to marriage, and no restrictions stemming from race, colour or nationality shall prevent them from enjoying this right.

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(b) Society and the State shall remove all obstacles to marriage and shall facilitate marital procedure. They shall ensure family protection and welfare. Article 6 (a) Woman is equal to man in human dignity, and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence, and the right to retain her name and lineage. (b) The husband is responsible for the support and welfare of the family. Article 7 (a) As of the moment of birth, every child has rights due from the parents, society and the state to be accorded proper nursing, education and material, hygienic and moral care. Both the foetus and the mother must be protected and accorded special care. (b) Parents and those in such like capacity have the right to choose the type of education they desire for their children, provided they take into consideration the interest and future of the children in accordance with ethical values and the principles of the Shariah. (c) Both parents are entitled to certain rights from their children, and relatives are entitled to rights from their kin, in accordance with the tenets of the Shariah. Article 8 Every human being has the right to enjoy his legal capacity in terms of both obligation and commitment. Should this capacity be lost or impaired, he shall be represented by his guardian. Article 9 (a) The quest for knowledge is an obligation, and the provision of education is a duty for society and the State. The State shall ensure the availability of ways and means to acquire education and shall guarantee educational diversity in the interest of society so as to enable man to be acquainted with the religion of Islam and the facts of the Universe for the benefit of mankind. (b) Every human being has the right to receive both religious and worldly education from the various institutions of education and guidance, including the family, the school, the university, the media, etc., and in such an integrated and balanced manner as to develop his personality, strengthen his faith in God and promote his respect for and defence of both rights and obligations. Article 10 Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.

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Article 11 (a) Human beings are born free, and no one has the right to enslave, humiliate, oppress or exploit them, and there can be no subjugation but to God the MostHigh. (b) Colonialism of all types being one of the most evil forms of enslavement is totally prohibited. Peoples suffering from colonialism have the full right to freedom and self-determination. It is the duty of all States and peoples to support the struggle of colonized peoples for the liquidation of all forms of colonialism and occupation, and all States and peoples have the right to preserve their independent identity and exercise control over their wealth and natural resources. Article 12 Every man shall have the right, within the framework of Shariah, to free movement and to select his place of residence whether inside or outside his country and, if persecuted, is entitled to seek asylum in another country. The country of refuge shall ensure his protection until he reaches safety, unless asylum is motivated by an act which Shariah regards as a crime. Article 13 Work is a right guaranteed by the State and Society for each person able to work. Everyone shall be free to choose the work that suits him best and which serves his interests and those of society. The employee shall have the right to safety and security as well as to all other social guarantees. He may neither be assigned work beyond his capacity nor be subjected to compulsion or exploited or harmed in any way. He shall be entitled — without any discrimination between males and females — to fair wages for his work without delay, as well as to the holidays, allowances and promotions which he deserves. For his part, he shall be required to be dedicated and meticulous in his work. Should workers and employers disagree on any matter, the State shall intervene to settle the dispute and have the grievances redressed, the rights confirmed and justice enforced without bias. Article 14 Everyone shall have the right to legitimate gains without monopolization, deceit or harm to oneself or to others. Usury (riba) is absolutely prohibited. Article 15 (a) Everyone shall have the right to own property acquired in a legitimate way, and shall be entitled to the rights of ownership, without prejudice to oneself, others or to society in general. Expropriation is not permissible except for the requirements of public interest and upon payment of immediate and fair compensation (b) Confiscation and seizure of property is prohibited except for a necessity dictated by law.

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Article 16 Everyone shall have the right to enjoy the fruits of his scientific, literary, artistic or technical production and the right to protect the moral and material interests stemming there from, provided that such production is not contrary to the principles of Shariah. Article 17 (a) Everyone shall have the right to live in a clean environment, away from vice and moral corruption, an environment that would foster his self-development; and it is incumbent upon the State and society in general to afford that right. (b) Everyone shall have the right to medical and social care, and to all public amenities provided by society and the State within the limits of their available resources. (c) The State shall ensure the right of the individual to a decent living which will enable him to meet all his requirements and those of his dependents, including food, clothing, housing, education, medical care and all other basic needs. Article 18 (a) Everyone shall have the right to live in security for himself, his religion, his dependents, his honour and his property. (b) Everyone shall have the right to privacy in the conduct of his private affairs, in his home, among his family, with regard to his property and his relationships. It is not permitted to spy on him, to place him under surveillance or to besmirch his good name. The State shall protect him from arbitrary interference. (c) A private residence is inviolable in all cases. It will not be entered without permission from its inhabitants or in any unlawful manner, nor shall it be demolished or confiscated and its dwellers evicted. Article 19 (a) All individuals are equal before the law, without distinction between the ruler and the ruled. (b) The right to resort to justice is guaranteed to everyone. (c) Liability is in essence personal. (d) There shall be no crime or punishment except as provided for in the Shariah. (e) A defendant is innocent until his guilt is proven in a fair trial in which he shall be given all the guarantees of defence. Article 20 It is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him. It is not permitted to subject him to physical or psychological torture or to any form of humiliation, cruelty or indignity. Nor is it permitted to subject an individual to medical or scientific experimentation without his consent or at the risk of his health or of his life. Nor is it permitted to promulgate emergency laws that would provide executive authority for such actions.

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Article 21 Taking hostages under any form or for any purpose is expressly forbidden. Article 22 (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shariah. (b) Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shariah. (c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt or harm society or weaken its faith. (d) It is not permitted to arouse nationalistic or doctrinal hatred or to do anything that may be an incitement to any form of racial discrimination. Article 23 (a) Authority is a trust; and abuse or malicious exploitation thereof is absolutely prohibited, so that fundamental human rights may be guaranteed. (b) Everyone shall have the right to participate, directly or indirectly in the administration of his country's public affairs. He shall also have the right to assume public office in accordance with the provisions of Shari'ah. Article 24 All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah. Article 25 The Islamic Shari'ah is the only source of reference for the explanation or clarification to any of the articles of this Declaration.

Cairo, 14 Muharram 1411H 5 August 1990

ARAB CHARTER ON HUMAN RIGHTS1

Based on the faith of the Arab nation in the dignity of the human person whom God has exalted ever since the beginning of creation and in the fact that the Arab homeland is the cradle of religions and civilizations whose lofty human values affirm the human right to a decent life based on freedom, justice and equality, In furtherance of the eternal principles of fraternity, equality and tolerance among human beings consecrated by the noble Islamic religion and the other divinely-revealed religions, Being proud of the humanitarian values and principles that the Arab nation has established throughout its long history, which have played a major role in spreading knowledge between East and West, so making the region a point of reference for the whole world and a destination for seekers of knowledge and wisdom, Believing in the unity of the Arab nation, which struggles for its freedom and defends the right of nations to self-determination, to the preservation of their wealth and to development; believing in the sovereignty of the law and its contribution to the protection of universal and interrelated human rights and convinced that the human person's enjoyment of freedom, justice and equality of opportunity is a fundamental measure of the value of any society, Rejecting all forms of racism and Zionism, which constitute a violation of human rights and a threat to international peace and security, recognizing the close link that exists between human rights and international peace and security, reaffirming the principles of the Charter of the United Nations, the Universal Declaration of Human Rights and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and having regard to the Cairo Declaration on Human Rights in Islam, The States parties to the Charter have agreed as follows:

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League of Arab States, Arab Charter on Human Rights, May 22, 2004, came into force March 15, 2008.

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Article 1 The present Charter seeks, within the context of the national identity of the Arab States and their sense of belonging to a common civilization, to achieve the following aims: 1. To place human rights at the centre of the key national concerns of Arab States, making them lofty and fundamental ideals that shape the will of the individual in Arab States and enable him to improve his life in accordance with noble human values. 2. To teach the human person in the Arab States pride in his identity, loyalty to his country, attachment to his land, history and common interests and to in still in him a culture of human brotherhood, tolerance and openness towards others, in accordance with universal principles and values and with those proclaimed in international human rights instruments. 3. To prepare the new generations in Arab States for a free and responsible life in a civil society that is characterized by solidarity, founded on a balance between awareness of rights and respect for obligations, and governed by the values of equality, tolerance and moderation. 4. To entrench the principle that all human rights are universal, indivisible, interdependent and interrelated. Article 2 1. All peoples have the right of self-determination and to control over their natural wealth and resources, and the right to freely choose their political system and to freely pursue their economic, social and cultural development. 2. All peoples have the right to national sovereignty and territorial integrity. 3. All forms of racism, Zionism and foreign occupation and domination constitute an impediment to human dignity and a major barrier to the exercise of the fundamental rights of peoples; all such practices must be condemned and efforts must be deployed for their elimination. 4. All peoples have the right to resist foreign occupation. Article 3 1. Each State party to the present Charter undertakes to ensure to all individuals subject to its jurisdiction the right to enjoy the rights and freedoms set forth herein, without distinction on grounds of race, colour, sex, language, religious belief, opinion, thought, national or social origin, wealth, birth or physical or mental disability. 2. The States parties to the present Charter shall take the requisite measures to guarantee effective equality in the enjoyment of all the rights and freedoms enshrined in the present Charter in order to ensure protection against all forms of discrimination based on any of the grounds mentioned in the preceding paragraph. 3. Men and women are equal in respect of human dignity, rights and obligations within the framework of the positive discrimination established in favour of women by the Islamic Shariah, other divine laws and by applicable laws and legal instruments. Accordingly, each State party pledges to take all the

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requisite measures to guarantee equal opportunities and effective equality between men and women in the enjoyment of all the rights set out in this Charter. Article 4 1. In exceptional situations of emergency which threaten the life of the nation and the existence of which is officially proclaimed, the States parties to the present Charter may take measures derogating from their obligations under the present Charter, to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin. 2. In exceptional situations of emergency, no derogation shall be made from the following articles: article 5, article 8, article 9, article 10, article 13, article 14, paragraph 6, article 15, article 18, article 19, article 20, article 22, article 27, article 28, article 29 and article 30. In addition, the judicial guarantees required for the protection of the aforementioned rights may not be suspended. 3. Any State party to the present Charter availing itself of the right of derogation shall immediately inform the other States parties, through the intermediary of the Secretary-General of the League of Arab States, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. Article 5 1. Every human being has the inherent right to life. 2. This right shall be protected by law. No one shall be arbitrarily deprived of his life. Article 6 Sentence of death may be imposed only for the most serious crimes in accordance with the laws in force at the time of commission of the crime and pursuant to a final judgment rendered by a competent court. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Article 7 1. Sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime. 2. The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery; in all cases, the best interests of the infant shall be the primary consideration. Article 8 1. No one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment.

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2. Each State party shall protect every individual subject to its jurisdiction from such practices and shall take effective measures to prevent them. The commission of, or participation in, such acts shall be regarded as crimes that are punishable by law and not subject to any statute of limitations. Each State party shall guarantee in its legal system redress for any victim of torture and the right to rehabilitation and compensation. Article 9 No one shall be subjected to medical or scientific experimentation or to the use of his organs without his free consent and full awareness of the consequences and provided that ethical, humanitarian and professional rules are followed and medical procedures are observed to ensure his personal safety pursuant to the relevant domestic laws in force in each State party. Trafficking in human organs is prohibited in all circumstances. Article 10 1. All forms of slavery and trafficking in human beings are prohibited and are punishable by law. No one shall be held in slavery and servitude under any circumstances. 2. Forced labour, trafficking in human beings for the purposes of prostitution or sexual exploitation, the exploitation of the prostitution of others or any other form of exploitation or the exploitation of children in armed conflict are prohibited. Article 11 All persons are equal before the law and have the right to enjoy its protection without discrimination. Article 12 All persons are equal before the courts and tribunals. The States parties shall guarantee the independence of the judiciary and protect magistrates against any interference, pressure or threats. They shall also guarantee every person subject to their jurisdiction the right to seek a legal remedy before courts of all levels. Article 13 1. Everyone has the right to a fair trial that affords adequate guarantees before a competent, independent and impartial court that has been constituted by law to hear any criminal charge against him or to decide on his rights or his obligations. Each State party shall guarantee to those without the requisite financial resources legal aid to enable them to defend their rights. 2. Trials shall be public, except in exceptional cases that may be warranted by the interests of justice in a society that respects human freedoms and rights. Article 14 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest, search or detention without a legal warrant.

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2. No one shall be deprived of-his liberty except on such grounds and in such circumstances as are determined by law and in accordance with such procedure as is established thereby. 3. Anyone who is arrested shall be informed, at the time of arrest, in a language that he understands, of the reasons for his arrest and shall be promptly informed of any charges against him. He shall be entitled to contact his family members. 4. Anyone who is deprived of his liberty by arrest or detention shall have the right to request a medical examination and must be informed of that right. 5. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. His release may be subject to guarantees to appear for trial. Pre-trial detention shall in no case be the general rule. 6. Anyone who is deprived of his liberty by arrest or detention shall be entitled to petition a competent court in order that it may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. 7. Anyone who has been the victim of arbitrary or unlawful arrest or detention shall be entitled to compensation. Article 15 No crime and no penalty can be established without a prior provision of the law. In all circumstances, the law most favourable to the defendant shall be applied. Article 16 Everyone charged with a criminal offence shall be presumed innocent until proved guilty by a final judgment rendered according to law and, in the course of the investigation and trial, he shall enjoy the following minimum guarantees: 1. The right to be informed promptly, in detail and in a language which he understands, of the charges against him. 2. The right to have adequate time and facilities for the preparation of his defence and to be allowed to communicate with his family. 3. The right to be tried in his presence before an ordinary court and to defend himself in person or through a lawyer of his own choosing with whom he can communicate freely and confidentially. 4. The right to the free assistance of a lawyer who will defend him if he cannot defend himself or if the interests of justice so require, and the right to the free assistance of an interpreter if he cannot understand or does not speak the language used in court. 5. The right to examine or have his lawyer examine the prosecution witnesses and to on defence according to the conditions applied to the prosecution witnesses. 6. The right not to be compelled to testify against himself or to confess guilt. 7. The right, if convicted of the crime, to file an appeal in accordance with the law before a higher tribunal.

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8. The right to respect for his security of person and his privacy in all circumstances. Article 17 Each State party shall ensure in particular to any child at risk or any delinquent charged with an offence the right to a special legal system for minors in all stages of investigation, trial and enforcement of sentence, as well as to special treatment that takes account of his age, protects his dignity, facilitates his rehabilitation and reintegration and enables him to play a constructive role in society. Article 18 No one who is shown by a court to be unable to pay a debt arising from a contractual obligation shall be imprisoned. Article 19 1. No one may be tried twice for the same offence. Anyone against whom such proceedings are brought shall have the right to challenge their legality and to demand his release. 2. Anyone whose innocence is established by a final judgment shall be entitled to compensation for the damage suffered. Article 20 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. Persons in pre-trial detention shall be separated from convicted persons and shall be treated in a manner consistent with their status as un-convicted persons. 3. The aim of the penitentiary system shall be to reform prisoners and effect their social rehabilitation. Article 21 I. No one shall be subjected to arbitrary or unlawful interference with regard to his privacy, family, home or correspondence, nor to unlawful attacks on his honour or his reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 22 Everyone shall have the right to recognition as a person before the law. Article 23 Each State party to the present Charter undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.

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Article 24 Every citizen has the right: 1. To freely pursue a political activity. 2. To take part in the conduct of public affairs, directly or through freely chosen representatives. 3. To stand for election or choose his representatives in free and impartial elections, in conditions of equality among all citizens that guarantee the free expression of his will. 4. To the opportunity to gain access, on an equal footing with others, to public office in his country in accordance with the principle of equality of opportunity. 5. To freely form and join associations with others. 6. To freedom of association and peaceful assembly. 7. No restrictions may be placed on the exercise of these rights other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public health or morals or the protection of the rights and freedoms of others. Article 25 Persons belonging to minorities shall not be denied the right to enjoy their own culture, to use their own language and to practice their own religion. The exercise of these rights shall be governed by law. Article 26 1. Everyone lawfully within the territory of a State party shall, within that territory, have the right to freedom of movement and to freely choose his residence in any part of that territory in conformity with the laws in force. 2. No State party may expel a person who does not hold its nationality but is lawfully in its territory, other than in pursuance of a decision reached in accordance with law and after that person has been allowed to submit a petition to the competent authority, unless compelling reasons of national security preclude it. Collective expulsion is prohibited under all circumstances. Article 27 1. No one may be arbitrarily or unlawfully prevented from leaving any country, including his own, nor prohibited from residing, or compelled to reside, in any part of that country. 2. No one may be exiled from his country or prohibited from returning thereto. Article 28 Everyone has the right to seek political asylum in another country in order to escape persecution. This right may not be invoked by persons facing prosecution for an offence under ordinary law. Political refugees may not be extradited. Article 29 1. Everyone has the right to nationality. No one shall be arbitrarily or unlawfully deprived of his nationality.

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2. States parties shall take such measures as they deem appropriate, in accordance with their domestic laws on nationality, to allow a child to acquire the mother's nationality, having due regard, in all cases, to the best interests of the child. 3. Non one shall be denied the right to acquire another nationality, having due regard for the domestic legal procedures in his country. Article 30 1. Everyone has the right to freedom of thought, conscience and religion and no restrictions may be imposed on the exercise of such freedoms except as provided for by law. 2. The freedom to manifest one's religion or beliefs or to perform religious observances, either alone or in community with others, shall be subject only to such limitations as are prescribed by law and are necessary in a tolerant society that respects human rights and freedoms for the protection of public safety, public order, public health or morals or the fundamental rights and freedoms of others. 3. Parents or guardians have the freedom to provide for the religious and moral education of their children. Article 31 Everyone has a guaranteed right to own private property, and shall not under any circumstances be arbitrarily or unlawfully divested of all or any part of his property. Article 32 1. The present Charter guarantees the right to information and to freedom of opinion and expression, as well as the right to seek, receive and impart information and ideas through any medium, regardless of geographical boundaries. 2. Such rights and freedoms shall be exercised in conformity with the fundamental values of society and shall be subject only to such limitations as are required to ensure respect for the rights or reputation of others or the protection of national security, public order and public health or morals. Article 33 1. The family is the natural and fundamental group unit of society; it is based on marriage between a man and a woman. Men and women of marrying age have the right to marry and to found a family according to the rules and conditions of marriage. No marriage can take place without the full and free consent of both parties. The laws in force regulate the rights and duties of the man and woman as to marriage, during marriage and at its dissolution. 2. The State and society shall ensure the protection of the family, the strengthening of family ties, the protection of its members and the prohibition of all forms of violence or abuse in the relations among its members, and particularly against women and children. They shall also ensure the necessary protection and care for mothers, children, older persons and persons with special needs and shall

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provide adolescents and young persons with the best opportunities for physical and mental development. 3. The States parties shall take all necessary legislative, administrative and judicial measures to guarantee the protection, survival, development and wellbeing of the child in an atmosphere of freedom and dignity and shall ensure, in all cases, that the child's best interests are the basic criterion for all measures taken in his regard, whether the child is at risk of delinquency or is a juvenile offender. 4. The States parties shall take all the necessary measures to guarantee, particularly to young persons, the right to pursue a sporting activity. Article 34 1. The right to work is a natural right of every citizen. The State shall endeavour to provide, to the extent possible, a job for the largest number of those willing to work, while ensuring production, the freedom to choose one's work and equality of opportunity without discrimination of any kind on grounds of race, colour, sex, religion, language, political opinion, membership in a union, national origin, social origin, disability or any other situation. 2. Every worker has the right to the enjoyment of just and favourable conditions of work which ensure appropriate remuneration to meet his essential needs and those of his family and regulate working hours, rest and holidays with pay, as well as the rules for the preservation of occupational health and safety and the protection of women, children and disabled persons in the place of work. 3. The States parties recognize the right of the child to be protected from economic exploitation and from being forced to perform any work that is likely to be hazardous or to interfere with the child's education or to be harmful to the child's health or physical, mental, spiritual, moral or social development. To this end, and having regard to the relevant provisions of other international instruments, States parties shall in particular: (a) Define a minimum age for admission to employment; (b) Establish appropriate regulation of working hours and conditions; (c) Establish appropriate penalties or other sanctions to ensure the effective endorsement of these provisions. 4. There shall be no discrimination between men and women in their enjoyment of the right to effectively benefit from training, employment and job protection and the right to receive equal remuneration for equal work. 5. Each State party shall ensure to workers who migrate to its territory the requisite protection in accordance with the laws in force. Article 35 1. Every individual has the right to freely form trade unions or to join trade unions and to freely pursue trade union activity for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights and freedoms except such as are prescribed by the laws in force and that are necessary for the maintenance of national security, public safety or order or for the protection of public health or morals or the rights and freedoms of others.

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3. Every State party to the present Charter guarantees the right to strike within the limits laid down by the laws in force. Article 36 The States parties shall ensure the right of every citizen to social security, including social insurance. Article 37 The right to development is a fundamental human right and all States are required to establish the development policies and to take the measures needed to guarantee this right. They have a duty to give effect to the values of solidarity and cooperation among them and at the international level with a view to eradicating poverty and achieving economic, social, cultural and political development. By virtue of this right, every citizen has the right to participate in the realization of development and to enjoy the benefits and fruits thereof. Article 38 Every person has the right to an adequate standard of living for himself and his family, which ensures their well-being and a decent life, including food, clothing, housing, services and the right to a healthy environment. The States parties shall take the necessary measures commensurate with their resources to guarantee these rights. Article 39 1. The States parties recognize the right of every member of society to the enjoyment of the highest attainable standard of physical and mental health and the right of the citizen to free basic health-care services and to have access to medical facilities without discrimination of any kind. 2. The measures taken by States parties shall include the following: (a) Development of basic health-care services and the guaranteeing of free and easy access to the centres that provide these services, regardless of geographical location or economic status. (b) efforts to control disease by means of prevention and cure in order to reduce the morality rate. (c) promotion of health awareness and health education. (d) suppression of traditional practices which are harmful to the health of the individual. (e) provision of the basic nutrition and safe drinking water for all. (f) Combating environmental pollution and providing proper sanitation systems; (g) Combating drugs, psychotropic substances, smoking and substances that are damaging to health.

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Article 40 1. The States parties undertake to ensure to persons with mental or physical disabilities a decent life that guarantees their dignity, and to enhance their selfreliance and facilitate their active participation in society. 2. The States parties shall provide social services free of charge for all persons with disabilities, shall provide the material support needed by those persons, their families or the families caring for them, and shall also do whatever is needed to avoid placing those persons in institutions. They shall in all cases take account of the best interests of the disabled person. 3. The States parties shall take all necessary measures to curtail the incidence of disabilities by all possible means, including preventive health programmes, awareness raising and education. 4. The States parties shall provide full educational services suited to persons with disabilities, taking into account the importance of integrating these persons in the educational system and the importance of vocational training and apprenticeship and the creation of suitable job opportunities in the public or private sectors. 5. The States parties shall provide all health services appropriate for persons with disabilities, including the rehabilitation of these persons with a view to integrating them into society. 6. The States parties shall enable persons with disabilities to make use of all public and private services. Article 41 1. The eradication of illiteracy is a binding obligation upon the State and everyone has the right to education. 2. The States parties shall guarantee their citizens free education at least throughout the primary and basic levels. All forms and levels of primary education shall be compulsory and accessible to all without discrimination of any kind. 3. The States parties shall take appropriate measures in all domains to ensure partnership between men and women with a view to achieving national development goals. 4. The States parties shall guarantee to provide education directed to the full development of the human person and to strengthening respect for human rights and fundamental freedoms. 5. The States parties shall endeavour to incorporate the principles of human rights and fundamental freedoms into formal and informal education curricula and educational and training programmes. 6. The States parties shall guarantee the establishment of the mechanisms necessary to provide ongoing education for every citizen and shall develop national plans for adult education. Article 42 1. Every person has the right to take part in cultural life and to enjoy the benefits of scientific progress and its application.

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2. The States parties undertake to respect the freedom of scientific research and creative activity and to ensure the protection of moral and material interests resulting from scientific, literary and artistic production. 3. The state parties shall work together and enhance cooperation among them at all levels, with the full participation of intellectuals and inventors and their organizations, in order to develop and implement recreational, cultural, artistic and scientific programs. Article 43 Nothing in this Charter may be construed or interpreted as impairing the rights and freedoms protected by the domestic laws of the States parties or those set force in the international and regional human rights instruments which the states parties have adopted or ratified, including the rights of women, the rights of the child and the rights of persons belonging to minorities. Article 44 The states parties undertake to adopt, in conformity with their constitutional procedures and with the provisions of the present Charter, whatever legislative or non-legislative measures that may be necessary to give effect to the rights set forth herein. Article 45 1. Pursuant to this Charter, an "Arab Human Rights Committee", hereinafter referred to as "the Committee" shall be established. This Committee shall consist of seven members who shall be elected by secret ballot by the states parties to this Charter. 2. The Committee shall consist of nationals of the states parties to the present Charter, who must be highly experienced and competent in the Committee's field of work. The members of the Committee shall serve in their personal capacity and shall be fully independent and impartial. 3. The Committee shall include among its members not more than one national of a State party; such member may be re-elected only once. Due regard shall be given to the rotation principle. 4. The members of the Committee shall be elected for a four-year term, although the mandate of three of the members elected during the first election shall be for two years and shall be renewed by lot. 5. Six months prior to the date of the election, the Secretary-General of the League of Arab States shall invite the States parties to submit their nominations within the following three months. He shall transmit the list of candidates to the States parties two months prior to the date the election. The candidates who obtain the largest number of votes cast shall be elected to membership of the Committee. If, because two or more candidates have an equal number of votes, the number of candidates with the largest number of votes exceeds the number required, a second ballot will be held between the persons with equal numbers of votes. If the votes are again equal, the member or members shall be selected by lottery. The first

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election for membership of the Committee shall be held at least six months after the Charter enters into force. 6. The Secretary-General shall invite the States parties to a meeting at the headquarters the League of Arab States in order to elect the member of the Committee. The presence of the majority of the States parties shall constitute a quorum. If there is no quorum, the secretary-General shall call another meeting at which at least two thirds of the States parties must be present. If there is still no quorum, the Secretary-General shall call a third meeting, which will be held regardless of the number of States parties present. 7. The Secretary-General shall convene the first meeting of the Committee, during the course of which the Committee shall elect its Chairman from among its members, for a two-year n which may be renewed only once and for an identical period. The Committee shall establish its own rules of procedure and methods of work and shall determine how often it shall et. The Committee shall hold its meetings at the headquarters of the League of Arab States. ~ay also meet in any other State party to the present Charter at that party's invitation. Article 46 1. The Secretary-General shall declare a seat vacant after being notified by the Chairman of a member's: (a) Death; (b) Resignation; or (c) If, in the unanimous, opinion of the other members, a member of the Committee has ceased to perform his functions without offering an acceptable justification or for any reason other than a temporary absence. 2. If a member's seat is declared vacant pursuant to the provisions of paragraph 1 and the term of office of the member to be replaced does not expire within six months from the date on which the vacancy was declared, the Secretary-General of the League of Arab States shall refer the matter to the States parties to the present Charter, which may, within two months, submit nominations, pursuant to article 45, in order to fill the vacant seat. 3. The Secretary-General of the League of Arab States shall draw up an alphabetical list of all the duly nominated candidates, which he shall transmit to the States parties to the present Charter. The elections to fill the vacant seat shall be held in accordance with the relevant provisions. 4. Any member of the Committee elected to fill a seat declared vacant in accordance with the provisions of paragraph 1 shall remain a member of the Committee until the expiry of the remainder of the term of the member whose seat was declared vacant pursuant to the provisions of that paragraph. 5. The Secretary-General of the League of Arab States shall make provision within the budget of the League of Arab States for all the necessary financial and human resources and facilities that the Committee needs to discharge its functions effectively. The Committee's experts shall be afforded the same treatment with respect to remuneration and reimbursement of expenses as experts of the secretariat of the League of Arab States.

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Article 47 The States parties undertake to ensure that members of the Committee shall enjoy the immunities necessary for their protection against any form of harassment or moral or material pressure or prosecution on account of the positions they take or statements they make while carrying out their functions as members of the Committee. Article 48 1. The States parties undertake to submit reports to the Secretary-General of the League of Arab States on the measures they have taken to give effect to the rights and freedoms recognized in this Charter and on the progress made towards the enjoyment thereof. The Secretary-General shall transmit these reports to the Committee for its consideration. 2. Each State party shall submit an initial report to the Committee within one year from the date on which the Charter enters into force and a periodic report every three years thereafter. The Committee may request the States parties to supply it with additional information relating to the implementation of the Charter. 3. The Committee shall consider the reports submitted by the States parties under paragraph 2 of this article in the presence of the representative of the State party whose report is being considered. 4. The Committee shall discuss the report, comment thereon and make the necessary recommendations in accordance with the aims of the Charter. 5. The Committee shall submit an annual report containing its comments and recommendations to the Council of the League, through the intermediary of the Secretary-General. 6. The Committee's reports, concluding observations and recommendations shall be public documents which the Committee shall disseminate widely. Article 49 1. The Secretary-General of the League of Arab States shall submit the present Charter, once it has been approved by the Council of the League, to the States members for signature, ratification or accession. 2. The present Charter shall enter into effect two months from the date on which the seventh instrument of ratification is deposited with the secretariat of the League of Arab States. 3. After its entry into force, the present Charter shall become effective for each State two months after the State in question has deposited its instrument of ratification or accession with the secretariat. 4. The Secretary-General shall notify the States members of the deposit of each instrument of ratification or accession. Article 50 Any State party may submit written proposals, though the Secretary-General, for the amendment of the present Charter. After these amendments have been circulated among the States members, the Secretary-General shall invite the States

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parties to consider the proposed amendments before submitting them to the Council of the League for adoption. Article 51 The amendments shall take effect, with regard to the States parties that have approved them, once they have been approved by two thirds of the States parties. Article 52 Any State party may propose additional optional protocols to the present Charter and they shall be adopted in accordance with the procedures used for the adoption of amendments to the Charter. Article 53 1. Any State party, when signing this Charter, depositing the instruments of ratification or acceding hereto, may make a reservation to any article of the Charter, provided that such reservation does not conflict with the aims and fundamental purposes of the Charter. 2. Any State party that has made a reservation pursuant to paragraph 1 of this article may withdraw it at any time by addressing a notification to the SecretaryGeneral of the League of Arab States.

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT1

Preamble The States Parties to this Statute, Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and well-being of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State, Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal 1

Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002

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Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole, Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions, Resolved to guarantee lasting respect for and the enforcement of international justice, Have agreed as follows: PART 1. ESTABLISHMENT OF THE COURT Article 1 The Court An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. Article 2 Relationship of the Court with the United Nations The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf. Article 3 Seat of the Court 1. The seat of the Court shall be established at The Hague in the Netherlands (“the host State”). 2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.

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1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State. PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW Article 5 Crimes within the jurisdiction of the Court 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. Article 6 Genocide For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

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Article 7 Crimes against humanity 1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This

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definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above. Article 8 War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, “war crimes” means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

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(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons;

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(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

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(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

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Rome Statute of the International Criminal Court Article 9 Elements of Crimes

1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute. Article 10 Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. Article 11 Jurisdiction ratione temporis 1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3. Article 12 Preconditions to the exercise of jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The

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accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. Article 13 Exercise of jurisdiction The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. Article 14 Referral of a situation by a State Party 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation. Article 15 Prosecutor 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

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4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence. Article 16 Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. Article 17 Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

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(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. Article 18 Preliminary rulings regarding admissibility 1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States. 2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation. 3. The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation. 4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. 5. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay. 6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is

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a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available. 7. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances. Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case 1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17. 2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court. 4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c). 5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82. 7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17. 8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court: (a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;

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(b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and (c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58. 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. 11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place. Article 20 Ne bis in idem 1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. Article 21 Applicable law 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

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(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW Article 22 Nullum crimen sine lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. Article 23 Nulla poena sine lege A person convicted by the Court may be punished only in accordance with this Statute. Article 24 Non-retroactivity ratione personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.

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Article 25 Individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law. Article 26 Exclusion of jurisdiction over persons under eighteen The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.

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Rome Statute of the International Criminal Court Article 27 Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. Article 28 Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

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Article 29 Non-applicability of statute of limitations The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly. Article 31 Grounds for excluding criminal responsibility 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another

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person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence. Article 32 Mistake of fact or mistake of law 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33. Article 33 Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT Article 34 Organs of the Court The Court shall be composed of the following organs: (a) The Presidency; (b) An Appeals Division, a Trial Division and a Pre-Trial Division;

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(c) The Office of the Prosecutor; (d) The Registry. Article 35 Service of judges 1. All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office. 2. The judges composing the Presidency shall serve on a full-time basis as soon as they are elected. 3. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such arrangement shall be without prejudice to the provisions of article 40. 4. The financial arrangements for judges not required to serve on a full-time basis shall be made in accordance with article 49. Article 36 Qualifications, nomination and election of judges 1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court. 2. (a) The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1, indicating the reasons why this is considered necessary and appropriate. The Registrar shall promptly circulate any such proposal to all States Parties. (b) Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened in accordance with article 112. The proposal shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties. (c) (i) Once a proposal for an increase in the number of judges has been adopted under subparagraph (b), the election of the additional judges shall take place at the next session of the Assembly of States Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2; (ii) Once a proposal for an increase in the number of judges has been adopted and brought into effect under subparagraphs (b) and (c) (i), it shall be open to the Presidency at any time thereafter, if the workload of the Court justifies it, to propose a reduction in the number of judges, provided that the number of judges shall not be reduced below that specified in paragraph 1. The proposal shall be dealt with in accordance with the procedure laid down in subparagraphs (a) and (b). In the event that the proposal is adopted, the number of judges shall be progressively decreased as the terms of office of serving judges expire, until the necessary number has been reached.

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3. (a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. (b) Every candidate for election to the Court shall: (i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or (ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court; (c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. (a) Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either: (i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or (ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court. Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3. (b) Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party. (c) The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations. In that event, the Committee’s composition and mandate shall be established by the Assembly of States Parties. 5. For the purposes of the election, there shall be two lists of candidates: List A containing the names of candidates with the qualifications specified in paragraph 3 (b) (i); and List B containing the names of candidates with the qualifications specified in paragraph 3 (b) (ii). A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists. 6. (a) The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose under article 112. Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting. (b) In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be held in accordance with the procedures laid down in subparagraph (a) until the remaining places have been filled.

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7. No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights. 8. (a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges. (b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children. 9. (a) Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election. (b) At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years. (c) A judge who is selected to serve for a term of three years under subparagraph (b) shall be eligible for re-election for a full term. 10. Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39 shall continue in office to complete any trial or appeal the hearing of which has already commenced before that Chamber. Article 37 Judicial vacancies 1. In the event of a vacancy, an election shall be held in accordance with article 36 to fill the vacancy. 2. A judge elected to fill a vacancy shall serve for the remainder of the predecessor’s term and, if that period is three years or less, shall be eligible for reelection for a full term under article 36. Article 38 The Presidency 1. The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once. 2. The First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First VicePresident are unavailable or disqualified.

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3. The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for: (a) The proper administration of the Court, with the exception of the Office of the Prosecutor; and (b) The other functions conferred upon it in accordance with this Statute. 4. In discharging its responsibility under paragraph 3 (a), the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern. Article 39 Chambers 1. As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified in article 34, paragraph (b). The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience. 2. (a) The judicial functions of the Court shall be carried out in each division by Chambers. (b) (i) The Appeals Chamber shall be composed of all the judges of the Appeals Division; (ii) The functions of the Trial Chamber shall be carried out by three judges of the Trial Division; (iii) The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge of that division in accordance with this Statute and the Rules of Procedure and Evidence; (c) Nothing in this paragraph shall preclude the simultaneous constitution of more than one Trial Chamber or Pre-Trial Chamber when the efficient management of the Court’s workload so requires. 3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three years, and thereafter until the completion of any case the hearing of which has already commenced in the division concerned. (b) Judges assigned to the Appeals Division shall serve in that division for their entire term of office. 4. Judges assigned to the Appeals Division shall serve only in that division. Nothing in this article shall, however, preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court’s workload so requires, provided that under no circumstances shall a judge who has participated in the pretrial phase of a case be eligible to sit on the Trial Chamber hearing that case.

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Article 40 Independence of the judges 1. The judges shall be independent in the performance of their functions. 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence. 3. Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature. 4. Any question regarding the application of paragraphs 2 and 3 shall be decided by an absolute majority of the judges. Where any such question concerns an individual judge, that judge shall not take part in the decision. Article 41 Excusing and disqualification of judges 1. The Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence. 2. (a) A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence. (b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph. (c) Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take part in the decision. Article 42 The Office of the Prosecutor 1. The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source. 2. The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilities and other resources thereof. The Prosecutor shall be assisted by one or more Deputy Prosecutors, who shall be entitled to carry out any of the acts required of the Prosecutor under this Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities. They shall serve on a full-time basis.

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3. The Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases. They shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election. 5. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence. They shall not engage in any other occupation of a professional nature. 6. The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her request, from acting in a particular case. 7. Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground. They shall be disqualified from a case in accordance with this paragraph if, inter alia, they have previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. 8. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber. (a) The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor or a Deputy Prosecutor on the grounds set out in this article; (b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter; 9. The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children. Article 43 The Registry 1. The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42. 2. The Registry shall be headed by the Registrar, who shall be the principal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court. 3. The Registrar and the Deputy Registrar shall be persons of high moral character, be highly competent and have an excellent knowledge of and be fluent in at least one of the working languages of the Court.

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4. The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties. If the need arises and upon the recommendation of the Registrar, the judges shall elect, in the same manner, a Deputy Registrar. 5. The Registrar shall hold office for a term of five years, shall be eligible for re-election once and shall serve on a full-time basis. The Deputy Registrar shall hold office for a term of five years or such shorter term as may be decided upon by an absolute majority of the judges, and may be elected on the basis that the Deputy Registrar shall be called upon to serve as required. 6. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence. Article 44 Staff 1. The Prosecutor and the Registrar shall appoint such qualified staff as may be required to their respective offices. In the case of the Prosecutor, this shall include the appointment of investigators. 2. In the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in article 36, paragraph 8. 3. The Registrar, with the agreement of the Presidency and the Prosecutor, shall propose Staff Regulations which include the terms and conditions upon which the staff of the Court shall be appointed, remunerated and dismissed. The Staff Regulations shall be approved by the Assembly of States Parties. 4. The Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or nongovernmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties. Article 45 Solemn undertaking Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her respective functions impartially and conscientiously.

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Rome Statute of the International Criminal Court Article 46 Removal from office

1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person: (a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or (b) Is unable to exercise the functions required by this Statute. 2. A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot: (a) In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges; (b) In the case of the Prosecutor, by an absolute majority of the States Parties; (c) In the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation of the Prosecutor. 3. A decision as to the removal from office of the Registrar or Deputy Registrar shall be made by an absolute majority of the judges. 4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose conduct or ability to exercise the functions of the office as required by this Statute is challenged under this article shall have full opportunity to present and receive evidence and to make submissions in accordance with the Rules of Procedure and Evidence. The person in question shall not otherwise participate in the consideration of the matter. Article 47 Disciplinary measures A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature than that set out in article 46, paragraph 1, shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence. Article 48 Privileges and immunities 1. The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes. 2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity.

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3. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court. 4. Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court. 5. The privileges and immunities of: (a) A judge or the Prosecutor may be waived by an absolute majority of the judges; (b) The Registrar may be waived by the Presidency; (c) The Deputy Prosecutors and staff of the Office of the Prosecutor may be waived by the Prosecutor; (d) The Deputy Registrar and staff of the Registry may be waived by the Registrar. Article 49 Salaries, allowances and expenses The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall receive such salaries, allowances and expenses as may be decided upon by the Assembly of States Parties. These salaries and allowances shall not be reduced during their terms of office. Article 50 Official and working languages 1. The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the purposes of this paragraph. 2. The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages. 3. At the request of any party to a proceeding or a State allowed to intervene in a proceeding, the Court shall authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified.

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Rome Statute of the International Criminal Court Article 51 Rules of Procedure and Evidence

1. The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Rules of Procedure and Evidence may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; or (c) The Prosecutor. Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties. 4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted. 5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail. Article 52 Regulations of the Court 1. The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning. 2. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments thereto. 3. The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months there are no objections from a majority of States Parties, they shall remain in force. PART 5. INVESTIGATION AND PROSECUTION Article 53 Initiation of an investigation 1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

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(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber. 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: (a) There is not a sufficient legal or factual basis to seek a warrant or summons under article 58; (b) The case is inadmissible under article 17; or (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion. 3. (a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision. (b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber. 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information. Article 54 Duties and powers of the Prosecutor with respect to investigations 1. The Prosecutor shall: (a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally; (b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the

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nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and (c) Fully respect the rights of persons arising under this Statute. 2. The Prosecutor may conduct investigations on the territory of a State: (a) In accordance with the provisions of Part 9; or (b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d). 3. The Prosecutor may: (a) Collect and examine evidence; (b) Request the presence of and question persons being investigated, victims and witnesses; (c) Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate; (d) Enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person; (e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and (f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence. Article 55 Rights of persons during an investigation 1. In respect of an investigation under this Statute, a person: (a) Shall not be compelled to incriminate himself or herself or to confess guilt; (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; (c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and (d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute. 2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;

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(c) To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel. Article 56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity 1. (a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber. (b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence. (c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connection with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter. 2. The measures referred to in paragraph 1 (b) may include: (a) Making recommendations or orders regarding procedures to be followed; (b) Directing that a record be made of the proceedings; (c) Appointing an expert to assist; (d) Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence; (e) Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons; (f) Taking such other action as may be necessary to collect or preserve evidence. 3. (a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial Chamber considers that such measures are required to preserve evidence that it deems would be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the Prosecutor’s failure to request the measures. If upon consultation, the Pre-Trial Chamber concludes that the Prosecutor’s failure to request such measures is unjustified, the Pre-Trial Chamber may take such measures on its own initiative. (b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis.

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4. The admissibility of evidence preserved or collected for trial pursuant to this article, or the record thereof, shall be governed at trial by article 69, and given such weight as determined by the Trial Chamber. Article 57 Functions and powers of the Pre-Trial Chamber 1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions in accordance with the provisions of this article. 2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7, and 72 must be concurred in by a majority of its judges. (b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions provided for in this Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the Pre-Trial Chamber. 3. In addition to its other functions under this Statute, the Pre-Trial Chamber may: (a) At the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation; (b) Upon the request of a person who has been arrested or has appeared pursuant to a summons under article 58, issue such orders, including measures such as those described in article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence; (c) Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information; (d) Authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part 9 if, whenever possible having regard to the views of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9. (e) Where a warrant of arrest or a summons has been issued under article 58, and having due regard to the strength of the evidence and the rights of the parties concerned, as provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to article 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims.

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Article 58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear 1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial, (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. 2. The application of the Prosecutor shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; (c) A concise statement of the facts which are alleged to constitute those crimes; (d) A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and (e) The reason why the Prosecutor believes that the arrest of the person is necessary. 3. The warrant of arrest shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court for which the person’s arrest is sought; and (c) A concise statement of the facts which are alleged to constitute those crimes. 4. The warrant of arrest shall remain in effect until otherwise ordered by the Court. 5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9. 6. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes. 7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person’s appearance, it shall issue the

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summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear. The summons shall contain: (a) The name of the person and any other relevant identifying information; (b) The specified date on which the person is to appear; (c) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and (d) A concise statement of the facts which are alleged to constitute the crime. The summons shall be served on the person. Article 59 Arrest proceedings in the custodial State 1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. 2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (a) The warrant applies to that person; (b) The person has been arrested in accordance with the proper process; and (c) The person’s rights have been respected. 3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender. 4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b). 5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision. 6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release. 7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible. Article 60 Initial proceedings before the Court 1. Upon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is

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alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial. 2. A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions. 3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require. 4. The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions. 5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released. Article 61 Confirmation of the charges before trial 1. Subject to the provisions of paragraph 2, within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel. 2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has: (a) Waived his or her right to be present; or (b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of justice. 3. Within a reasonable time before the hearing, the person shall: (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing. The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing. 4. Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a

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withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal. 5. At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial. 6. At the hearing, the person may: (a) Object to the charges; (b) Challenge the evidence presented by the Prosecutor; and (c) Present evidence. 7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the PreTrial Chamber shall: (a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed; (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence; (c) Adjourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court. 8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence. 9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges. 10. Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor. 11. Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.

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PART 6. THE TRIAL Article 62 Place of trial Unless otherwise decided, the place of the trial shall be the seat of the Court. Article 63 Trial in the presence of the accused 1. The accused shall be present during the trial. 2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required. Article 64 Functions and powers of the Trial Chamber 1. The functions and powers of the Trial Chamber set out in this article shall be exercised in accordance with this Statute and the Rules of Procedure and Evidence. 2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall: (a) Confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings; (b) Determine the language or languages to be used at trial; and (c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial. 4. The Trial Chamber may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division. 5. Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joiner or severance in respect of charges against more than one accused. 6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary: (a) Exercise any functions of the Pre-Trial Chamber referred to in article 61, paragraph 11; (b) Require the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute;

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(c) Provide for the protection of confidential information; (d) Order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties; (e) Provide for the protection of the accused, witnesses and victims; and (f) Rule on any other relevant matters. 7. The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence. 8. (a) At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty. (b) At the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner. Subject to any directions of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute. 9. The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to: (a) Rule on the admissibility or relevance of evidence; and (b) Take all necessary steps to maintain order in the course of a hearing. 10. The Trial Chamber shall ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar. Article 65 Proceedings on an admission of guilt 1. Where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a), the Trial Chamber shall determine whether: (a) The accused understands the nature and consequences of the admission of guilt; (b) The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and (c) The admission of guilt is supported by the facts of the case that are contained in: (i) The charges brought by the Prosecutor and admitted by the accused; (ii) Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and (iii) Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused. 2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are

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required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. 3. Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt as not having been made, in which case it shall order that the trial be continued under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber. 4. Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may: (a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or (b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber. 5. Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court. Article 66 Presumption of innocence 1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. Article 67 Rights of the accused 1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks; (b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence; (c) To be tried without undue delay; (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the

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same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute; (f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks; (g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence; (h) To make an unsworn oral or written statement in his or her defence; and (i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide. Article 68 Protection of the victims and witnesses and their participation in the proceedings 1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. 3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

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4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6. 5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information. Article 69 Evidence 1. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. 2. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. 3. The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth. 4. The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. 5. The Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence. 6. The Court shall not require proof of facts of common knowledge but may take judicial notice of them. 7. Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings. 8. When deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State’s national law.

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1. The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: (a) Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth; (b) Presenting evidence that the party knows is false or forged; (c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (e) Retaliating against an official of the Court on account of duties performed by that or another official; (f) Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties. 2. The principles and procedures governing the Court’s exercise of jurisdiction over offences under this article shall be those provided for in the Rules of Procedure and Evidence. The conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State. 3. In the event of conviction, the Court may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both. 4. (a) Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals; (b) Upon request by the Court, whenever it deems it proper, the State Party shall submit the case to its competent authorities for the purpose of prosecution. Those authorities shall treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively. Article 71 Sanctions for misconduct before the Court 1. The Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence. 2. The procedures governing the imposition of the measures set forth in paragraph 1 shall be those provided for in the Rules of Procedure and Evidence.

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Article 72 Protection of national security information 1. This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue. 2. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests. 3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73. 4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article. 5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include: (a) Modification or clarification of the request; (b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State; (c) Obtaining the information or evidence from a different source or in a different form; or (d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence. 6. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State’s national security interests.

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7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions: (a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4: (i) The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State’s representations, which may include, as appropriate, hearings in camera and ex parte; (ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and (iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or (b) In all other circumstances: (i) Order disclosure; or (ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances. Article 73 Third-party information or documents If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator. Article 74 Requirements for the decision 1. All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations. The Presidency may, on a case-by-case basis, designate, as available, one or more alternate judges to be present at each stage of the trial and to replace a member of the Trial Chamber if that member is unable to continue attending.

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2. The Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial. 3. The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges. 4. The deliberations of the Trial Chamber shall remain secret. 5. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber’s findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber’s decision shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court. Article 75 Reparations to victims 1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. 2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. 3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. 4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1. 5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article. 6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law. Article 76 Sentencing 1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.

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2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence. 3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing. 4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused. PART 7. PENALTIES Article 77 Applicable penalties 1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties. Article 78 Determination of the sentence 1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person. 2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. 3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

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Article 79 Trust Fund 1. A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. 2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund. 3. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties. Article 80 Non-prejudice to national application of penalties and national laws Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part. PART 8. APPEAL AND REVISION Article 81 Appeal against decision of acquittal or conviction or against sentence 1. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows: (a) The Prosecutor may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, or (iii) Error of law; (b) The convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, (iii) Error of law, or (iv) Any other ground that affects the fairness or reliability of the proceedings or decision. 2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence; (b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83;

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(c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a). 3. (a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal; (b) When a convicted person’s time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below; (c) In case of an acquittal, the accused shall be released immediately, subject to the following: (i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal; (ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence. 4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings. Article 82 Appeal against other decisions 1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility; (b) A decision granting or denying release of the person being investigated or prosecuted; (c) A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3; (d) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. 2. A decision of the Pre-Trial Chamber under article 57, paragraph 3 (d), may be appealed against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis. 3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence. 4. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.

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Article 83 Proceedings on appeal 1. For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber. 2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may: (a) Reverse or amend the decision or sentence; or (b) Order a new trial before a different Trial Chamber. For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person’s behalf, it cannot be amended to his or her detriment. 3. If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime, it may vary the sentence in accordance with Part 7. 4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the majority and the minority, but a judge may deliver a separate or dissenting opinion on a question of law. 5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted. Article 84 Revision of conviction or sentence 1. The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused’s death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person’s behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the grounds that: (a) New evidence has been discovered that: (i) Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and (ii) Is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict; (b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified; (c) One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under article 46.

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2. The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate: (a) Reconvene the original Trial Chamber; (b) Constitute a new Trial Chamber; or (c) Retain jurisdiction over the matter, with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and Evidence, arriving at a determination on whether the judgement should be revised. Article 85 Compensation to an arrested or convicted person 1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him or her. 3. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason. PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE Article 86 General obligation to cooperate States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court. Article 87 Requests for cooperation: general provisions 1. (a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession.

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Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence. (b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization. 2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence. 3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request. 4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families. 5. (a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis. (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council. 6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate. 7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council. Article 88 Availability of procedures under national law States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.

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Rome Statute of the International Criminal Court Article 89 Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender. 2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility. 3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. (b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain: (i) A description of the person being transported; (ii) A brief statement of the facts of the case and their legal characterization; and (iii) The warrant for arrest and surrender; (c) A person being transported shall be detained in custody during the period of transit; (d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State; (e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time. 4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court. Article 90 Competing requests 1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for

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the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender, notify the Court and the requesting State of that fact. 2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if: (a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or (b) The Court makes the determination described in subparagraph (a) pursuant to the requested State’s notification under paragraph 1. 3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court’s determination shall be made on an expedited basis. 4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible. 5. Where a case under paragraph 4 has not been determined to be admissible by the Curt, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State. 6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to: (a) The respective dates of the requests; (b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and (c) The possibility of subsequent surrender between the Court and the requesting State. 7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person’s surrender: (a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court; (b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its

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decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question. 8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision. Article 91 Contents of request for arrest and surrender 1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be supported by: (a) Information describing the person sought, sufficient to identify the person, and information as to that person’s probable location; (b) A copy of the warrant of arrest; and (c) Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court. 3. In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by: (a) A copy of any warrant of arrest for that person; (b) A copy of the judgement of conviction; (c) Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and (d) If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served. 4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.

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Article 92 Provisional arrest 1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. 2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain: (a) Information describing the person sought, sufficient to identify the person, and information as to that person’s probable location; (b) A concise statement of the crimes for which the person’s arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime; (c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and (d) A statement that a request for surrender of the person sought will follow. 3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible. 4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date. Article 93 Other forms of cooperation 1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: (a) The identification and whereabouts of persons or the location of items; (b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; (c) The questioning of any person being investigated or prosecuted; (d) The service of documents, including judicial documents; (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; (f) The temporary transfer of persons as provided in paragraph 7; (g) The examination of places or sites, including the exhumation and examination of grave sites; (h) The execution of searches and seizures;

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(i) The provision of records and documents, including official records and documents; (j) The protection of victims and witnesses and the preservation of evidence; (k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and (l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court. 2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State. 3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary. 4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security. 5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them. 6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial. 7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled: (i) The person freely gives his or her informed consent to the transfer; and (ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree. (b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State. 8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request. (b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence. (c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or

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information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence. 9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request. (ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90. (b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization. 10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State. (b) (i) The assistance provided under subparagraph (a) shall include, inter alia: a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and b. The questioning of any person detained by order of the Court; (ii) In the case of assistance under subparagraph (b) (i)a: a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State; b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68. (c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute. Article 94 Postponement of execution of a request in respect of ongoing investigation or prosecution 1. If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions.

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2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to article 93, paragraph 1 (j). Article 95 Postponement of execution of a request in respect of an admissibility challenge Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19. Article 96 Contents of request for other forms of assistance under article 93 1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. The request shall, as applicable, contain or be supported by the following: (a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request; (b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided; (c) A concise statement of the essential facts underlying the request; (d) The reasons for and details of any procedure or requirement to be followed; (e) Such information as may be required under the law of the requested State in order to execute the request; and (f) Any other information relevant in order for the assistance sought to be provided. 3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law. 4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.

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Article 97 Consultations Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia: (a) Insufficient information to execute the request; (b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or (c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State. Article 98 Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. Article 99 Execution of requests under articles 93 and 96 1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process. 2. In the case of an urgent request, the documents or evidence produced in response shall, at the request of the Court, be sent urgently. 3. Replies from the requested State shall be transmitted in their original language and form. 4. Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person

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on a voluntary basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows: (a) When the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility pursuant to article 18 or 19, the Prosecutor may directly execute such request following all possible consultations with the requested State Party; (b) In other cases, the Prosecutor may execute such request following consultations with the requested State Party and subject to any reasonable conditions or concerns raised by that State Party. Where the requested State Party identifies problems with the execution of a request pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the matter. 5. Provisions allowing a person heard or examined by the Court under article 72 to invoke restrictions designed to prevent disclosure of confidential information connected with national security shall also apply to the execution of requests for assistance under this article. Article 100 Costs 1. The ordinary costs for execution of requests in the territory of the requested State shall be borne by that State, except for the following, which shall be borne by the Court: (a) Costs associated with the travel and security of witnesses and experts or the transfer under article 93 of persons in custody; (b) Costs of translation, interpretation and transcription; (c) Travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and staff of any organ of the Court; (d) Costs of any expert opinion or report requested by the Court; (e) Costs associated with the transport of a person being surrendered to the Court by a custodial State; and (f) Following consultations, any extraordinary costs that may result from the execution of a request. 2. The provisions of paragraph 1 shall, as appropriate, apply to requests from States Parties to the Court. In that case, the Court shall bear the ordinary costs of execution. Article 101 Rule of speciality 1. A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered.

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2. The Court may request a waiver of the requirements of paragraph 1 from the State which surrendered the person to the Court and, if necessary, the Court shall provide additional information in accordance with article 91. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so. Article 102 Use of terms For the purposes of this Statute: (a) “surrender” means the delivering up of a person by a State to the Court, pursuant to this Statute. (b) “extradition” means the delivering up of a person by one State to another as provided by treaty, convention or national legislation. PART 10. ENFORCEMENT Article 103 Role of States in enforcement of sentences of imprisonment 1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. (b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part. (c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court’s designation. 2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days’ notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110. (b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1. 3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following: (a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence; (b) The application of widely accepted international treaty standards governing the treatment of prisoners; (c) The views of the sentenced person; (d) The nationality of the sentenced person;

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(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement. 4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court. Article 104 Change in designation of State of enforcement 1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State. 2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement. Article 105 Enforcement of the sentence 1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it. 2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person. Article 106 Supervision of enforcement of sentences and conditions of imprisonment 1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners. 2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement. 3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

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Article 107 Transfer of the person upon completion of sentence 1. Following completion of the sentence, a person who is not a national of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory. 2. If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court. 3. Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence. Article 108 Limitation on the prosecution or punishment of other offences 1. A sentenced person in the custody of the State of enforcement shall not be subject to prosecution or punishment or to extradition to a third State for any conduct engaged in prior to that person’s delivery to the State of enforcement, unless such prosecution, punishment or extradition has been approved by the Court at the request of the State of enforcement. 2. The Court shall decide the matter after having heard the views of the sentenced person. 3. Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it. Article 109 Enforcement of fines and forfeiture measures 1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law. 2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties. 3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.

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Rome Statute of the International Criminal Court Article 110 Review by the Court concerning reduction of sentence

1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. 2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. 3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time. 4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence. 5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence. Article 111 Escape If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person’s surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person’s surrender, in accordance with Part 9. It may direct that the person be delivered to the State in which he or she was serving the sentence or to another State designated by the Court. PART 11. ASSEMBLY OF STATES PARTIES Article 112 Assembly of States Parties 1. An Assembly of States Parties to this Statute is hereby established. Each State Party shall have one representative in the Assembly who may be

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accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly. 2. The Assembly shall: (a) Consider and adopt, as appropriate, recommendations of the Preparatory Commission; (b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; (c) Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto; (d) Consider and decide the budget for the Court; (e) Decide whether to alter, in accordance with article 36, the number of judges; (f) Consider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation; (g) Perform any other function consistent with this Statute or the Rules of Procedure and Evidence. 3. (a) The Assembly shall have a Bureau consisting of a President, two VicePresidents and 18 members elected by the Assembly for three-year terms. (b) The Bureau shall have a representative character, taking into account, in particular, equitable geographical distribution and the adequate representation of the principal legal systems of the world. (c) The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities. 4. The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy. 5. The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau. 6. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Except as otherwise specified in this Statute, special sessions shall be convened by the Bureau on its own initiative or at the request of one third of the States Parties. 7. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute: (a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting; (b) Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting. 8. A State Party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may,

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nevertheless, permit such a State Party to vote in the Assembly and in the Bureau if it is satisfied that the failure to pay is due to conditions beyond the control of the State Party. 9. The Assembly shall adopt its own rules of procedure. 10. The official and working languages of the Assembly shall be those of the General Assembly of the United Nations. PART 12. FINANCING Article 113 Financial Regulations Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties. Article 114 Payment of expenses Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court. Article 115 Funds of the Court and of the Assembly of States Parties The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources: (a) Assessed contributions made by States Parties; (b) Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council. Article 116 Voluntary contributions Without prejudice to article 115, the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties.

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Article 117 Assessment of contributions The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based. Article 118 Annual audit The records, books and accounts of the Court, including its annual financial statements, shall be audited annually by an independent auditor. PART 13. FINAL CLAUSES Article 119 Settlement of disputes 1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court. Article 120 Reservations No reservations may be made to this Statute. Article 121 Amendments 1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States Parties. 2. No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants.

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3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them. 5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory. 6. If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment. 7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference. Article 122 Amendments to provisions of an institutional nature 1. Amendments to provisions of this Statute which are of an exclusively institutional nature, namely, article 35, article 36, paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1 (first two sentences), 2 and 4, article 42, paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed at any time, notwithstanding article 121, paragraph 1, by any State Party. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations or such other person designated by the Assembly of States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly. 2. Amendments under this article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a two-thirds majority of States Parties. Such amendments shall enter into force for all States Parties six months after their adoption by the Assembly or, as the case may be, by the Conference. Article 123 Review of the Statute 1. Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list

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of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions. 2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference. 3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference. Article 124 Transitional Provision Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1. Article 125 Signature, ratification, acceptance, approval or accession 1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000. 2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. 3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 126 Entry into force 1. This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. 2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or

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accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession. Article 127 Withdrawal 1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. Article 128 Authentic texts The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States. IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Statute. DONE at Rome, this 17th day of July 1998.

ELEMENTS OF CRIMES1

General introduction 1.Pursuant to article 9, the following Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8, consistent with the Statute. The provisions of the Statute, including article 21 and the general principles set out in Part 3, are applicable to the Elements of Crimes. 2.As stated in article 30, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e., intent, knowledge or both, set out in article 30 applies. Exceptions to the article 30 standard, based on the Statute, including applicable law under its relevant provisions, are indicated below. 3. Existence of intent and knowledge can be inferred from relevant facts and circumstances. 4. With respect to mental elements associated with elements involving value judgement, such as those using the terms “inhumane2 or “severe”, it is not necessary that the perpetrator personally completed a particular value judgement, unless otherwise indicated. 5. Grounds for excluding criminal responsibility or the absence thereof are generally not specified in the elements of crimes listed under each crime.2 6. The requirement of “unlawfulness” found in the Statute or in other parts of international law, in particular international humanitarian law, is generally not specified in the elements of crimes. 7. The elements of crimes are generally structured in accordance with the following principles:

1

U.N. Doc. PCNICC/2000/1/Add.2 (2000). This paragraph is without prejudice to the obligation of the Prosecutor under article 54, paragraph 1, of the Statute. 2

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Elements of Crimes

-As the elements of crimes focus on the conduct, consequences and circumstances associated with each crime, they are generally listed in that order; - When required, a particular mental element is listed after the affected conduct, consequence or circumstance; - Contextual circumstances are listed last. 8.As used in the Elements of Crimes, the term “perpetrator” is neutral as to guilt or innocence. The elements, including the appropriate mental elements, apply, mutatis mutandis, to all those whose criminal responsibility may fall under articles 25 and 28 of the Statute. 9.A particular conduct may constitute one or more crimes. 10.The use of short titles for the crimes has no legal effect. Article 6 Genocide Introduction With respect to the last element listed for each crime: . The term ’in the context of’ would include the initial acts in an emerging pattern; . The term “manifest” is an objective qualification; . Notwithstanding the normal requirement for a mental element provided for in article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis. Article 6 (a) Genocide by killing Elements 1. The perpetrator killed3 one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

3

The term “killed” is interchangeable with the term ’caused death.’

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Article 6 (b) Genocide by causing serious bodily or mental harm Elements 1. The perpetrator caused serious bodily or mental harm to one or more persons.4 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. Article 6 (c) Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction Elements 1. The perpetrator inflicted certain conditions of life upon one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.5 5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. Article 6 (d) Genocide by imposing measures intended to prevent births Elements 1. The perpetrator imposed certain measures upon one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4

This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment. 5 The term .conditions of life.may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.

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4. The measures imposed were intended to prevent births within that group. 5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. Article 6 (e) Genocide by forcibly transferring children Elements 1. The perpetrator forcibly transferred one or more persons.6 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The transfer was from that group to another group. 5. The person or persons were under the age of 18 years. 6. The perpetrator knew, or should have known, that the person or persons were under the age of 18 years. 7. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. Article 7 Crimes against humanity Introduction 1. Since article 7 pertains to international criminal law, its provisions, consistent with article 22, must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world. 2. The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, 6

The term ’forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.

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the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack. 3. .Attack directed against a civilian population. in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack. It is understood that ’policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population.7 Article 7 (1) (a) Crime against humanity of murder Elements 1. The perpetrator killed8 one or more persons. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population. Article 7 (1) (b) Crime against humanity of extermination Elements 1. The perpetrator killed9 one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population.10 2. The conduct constituted, or took place as part of,11 a mass killing of members of a civilian population. 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

7

A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action. 8 7 The term ’killed’ is interchangeable with the term .caused death.. This footnote applies to all elements which use either of these concepts. 9 The conduct could be committed by different methods of killing, either directly or indirectly. 10 9 The infliction of such conditions could include the deprivation of access to food and medicine. 11 The term “as part of” would include the initial conduct in a mass killing.

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4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (c) Crime against humanity of enslavement Elements 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.12 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (d) Crime against humanity of deportation or forcible transfer of population Elements 1. The perpetrator deported or forcibly13 transferred,14 without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts. 2. Such person or persons were lawfully present in the area from which they were so deported or transferred. 3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

12

It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children. 13 The term ’forcibly’ is not restricted to physical force, but may include threat of force orcoercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment. 14 ’Deported or forcibly transferred’ is interchangeable with ’forcibly displaced’.

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Article 7 (1) (e) Crime against humanity of imprisonment or other severe deprivation of physical liberty Elements 1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty. 2. The gravity of the conduct was such that it was in violation of fundamental rules of international law. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (f) Crime against humanity of torture15 Elements 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were in the custody or under the control of the perpetrator. 3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (g)-1 Crime against humanity of rape Elements 1. The perpetrator invaded16 the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a 15

It is understood that no specific purpose need be proved for this crime. The concept of invasion is intended to be broad enough to be gender-neutral.

16

592

Elements of Crimes

coercive environment, or the invasion was committed against a person incapable of giving genuine consent.17 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (g)-2 Crime against humanity of sexual slavery18 Elements 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.19 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (g)-3 Crime against humanity of enforced prostitution Elements 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such persons or persons’ incapacity to give genuine consent.

17

It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements of article 7 (1) (g)-3, 5 and 6. 18 Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose. 19 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

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2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (g)-4 Crime against humanity of forced pregnancy Elements 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (g)-5 Crime against humanity of enforced sterilization Elements 1. The perpetrator deprived one or more persons of biological reproductive capacity.20 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.21 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (g)-6 Crime against humanity of sexual violence Elements 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, 20

19 The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice. 21 20 It is understood that .genuine consent. does not include consent obtained through deception.

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Elements of Crimes

duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons. incapacity to give genuine consent. 2. Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1 (g), of the Statute. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (h) Crime against humanity of persecution Elements 1. The perpetrator severely deprived, contrary to international law,22 one or more persons of fundamental rights. 2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such. 3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law. 4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.23 5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

22

This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes. 23 It is understood that no additional mental element is necessary for this element other than that inherent in element 6.

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Article 7 (1) (i) Crime against humanity of enforced disappearance of persons24,25 Elements 1. The perpetrator: (a) Arrested, detained26,27 or abducted one or more persons; or (b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons. 2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or (b) Such refusal was preceded or accompanied by that deprivation of freedom. 3. The perpetrator was aware that:28 (a) Such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons;29 or (b) Such refusal was preceded or accompanied by that deprivation of freedom. 4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization. 5. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization. 6. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time. 7. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 8. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

24

Given the complex nature of this crime, it is recognized that its commission will normally involve more than one perpetrator as a part of a common criminal purpose. 25 This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute. 26 The word .detained would include a perpetrator who maintained an existing detention. 27 26 It is understood that under certain circumstances an arrest or detention may have been lawful. 28 This element, inserted because of the complexity of this crime, is without prejudice to the General Introduction to the Elements of Crimes. 29 It is understood that, in the case of a perpetrator who maintained an existing detention, this element would be satisfied if the perpetrator was aware that such a refusal had already taken place.

596

Elements of Crimes Article 7 (1) (j) Crime against humanity of apartheid

Elements 1. The perpetrator committed an inhumane act against one or more persons. 2. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act of a character similar to any of those acts.30 3. The perpetrator was aware of the factual circumstances that established the character of the act. 4. The conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups. 5. The perpetrator intended to maintain such regime by that conduct. 6. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 7. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 7 (1) (k) Crime against humanity of other inhumane acts Elements 1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act. 2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute.31 3. The perpetrator was aware of the factual circumstances that established the character of the act. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Article 8 War crimes Introduction The elements for war crimes under article 8, paragraph 2 (c) and (e), are subject to the limitations addressed in article 8, paragraph 2 (d) and (f), which are not elements of crimes. The elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed 30 31

It is understood that .character. refers to the nature and gravity of the act. It is understood that .character. refers to the nature and gravity of the act.

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conflict including, as appropriate, the international law of armed conflict applicable to armed conflict at sea. With respect to the last two elements listed for each crime: -There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international; - In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or no international; - There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms ’took place in the context of and was associated with’. Article 8 (2) (a) Article 8 (2) (a) (i) War crime of wilful killing Elements 1. The perpetrator killed one or more persons.32 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status.33,34 4. The conduct took place in the context of and was associated with an international armed conflict.35 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

32

31 The term ’killed’ is interchangeable with the term ’aused death’. This footnote applies to all elements which use either of these concepts. 33 This mental element recognizes the interplay between articles 30 and 32. This footnote also applies to the corresponding element in each crime under article 8 (2) (a), and to the element in other crimes in article 8 (2) concerning the awareness of factual circumstances that establish the status of persons or property protected under the relevant international law of armed conflict. 34 With respect to nationality, it is understood that the perpetrator needs only to know that the victim belonged to an adverse party to the conflict. This footnote also applies to the corresponding element in each crime under article 8 (2) (a). 35 The term ’international armed conflict’ includes military occupation. This footnote also applies to the corresponding element in each crime under article 8 (2) (a).

598

Elements of Crimes Article 8 (2) (a) (ii)-1 War crime of torture

Elements36 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 4. The perpetrator was aware of the factual circumstances that established that protected status. 5. The conduct took place in the context of and was associated with an international armed conflict. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (a) (ii)-2 War crime of inhuman treatment Elements 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (a) (ii)-3 War crime of biological experiments Elements 1. The perpetrator subjected one or more persons to a particular biological experiment. 2. The experiment seriously endangered the physical or mental health or integrity of such person or persons. 36

As element 3 requires that all victims must be .protected persons. under one or more of the Geneva Conventions of 1949, these elements do not include the custody or control requirement found in the elements of article 7 (1) (e).

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3. The intent of the experiment was non-therapeutic and it was neither justified by medical reasons nor carried out in such person’s or persons’ interest. 4. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (a) (iii) War crime of wilfully causing great suffering Elements 1. The perpetrator caused great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (a) (iv) War crime of destruction and appropriation of property Elements 1. The perpetrator destroyed or appropriated certain property. 2. The destruction or appropriation was not justified by military necessity. 3. The destruction or appropriation was extensive and carried out wantonly. 4. Such property was protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

600

Elements of Crimes Article 8 (2) (a) (v) War crime of compelling service in hostile forces

Elements 1. The perpetrator coerced one or more persons, by act or threat, to take part in military operations against that person’s own country or forces or otherwise serve in the forces of a hostile power. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (a) (vi) War crime of denying a fair trial Elements 1. The perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (a) (vii)-1 War crime of unlawful deportation and transfer Elements 1. The perpetrator deported or transferred one or more persons to another State or to another location. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict.

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5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (a) (vii)-2 War crime of unlawful confinement Elements 1. The perpetrator confined or continued to confine one or more persons to a certain location. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (a) (viii) War crime of taking hostages Elements 1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) Article 8 (2) (b) (i) War crime of attacking civilians Elements 1. The perpetrator directed an attack.

602

Elements of Crimes

2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (ii) War crime of attacking civilian objects Elements 1. The perpetrator directed an attack. 2. The object of the attack was civilian objects, that is, objects which are not military objectives. 3. The perpetrator intended such civilian objects to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (iii) War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission Elements 1. The perpetrator directed an attack. 2. The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. 3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. The perpetrator was aware of the factual circumstances that established that protection. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

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Article 8 (2) (b) (iv) War crime of excessive incidental death, injury, or damage Elements 1. The perpetrator launched an attack. 2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.37 3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.38 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (v) War crime of attacking undefended places39 Elements 1. The perpetrator attacked one or more towns, villages, dwellings or buildings. 2. Such towns, villages, dwellings or buildings were open for unrevised occupation.

37 The expression .concrete and direct overall military advantage refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict. 38 As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time. 39 The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.

604

Elements of Crimes

3. Such towns, villages, dwellings or buildings did not constitute military objectives. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (vi) War crime of killing or wounding a person hors de combat Elements 1. The perpetrator killed or injured one or more persons. 2. Such person or persons were hors de combat. 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (vii)-1 War crime of improper use of a flag of truce Elements 1. The perpetrator used a flag of truce. 2. The perpetrator made such use in order to feign an intention to negotiate when there was no such intention on the part of the perpetrator. 3. The perpetrator knew or should have known of the prohibited nature of such use.40 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

40

This mental element recognizes the interplay between article 30 and article 32. The term ’prohibited nature’ denotes illegality.

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Article 8 (2) (b) (vii)-2 War crime of improper use of a flag, insignia or uniform of the hostile party Elements 1. The perpetrator used a flag, insignia or uniform of the hostile party. 2. The perpetrator made such use in a manner prohibited under the international law of armed conflict while engaged in an attack. 3. The perpetrator knew or should have known of the prohibited nature of such use.41 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (vii)-3 War crime of improper use of a flag, insignia or uniform of the United Nations Elements 1. The perpetrator used a flag, insignia or uniform of the United Nations. 2. The perpetrator made such use in a manner prohibited under the international law of armed conflict. 3. The perpetrator knew of the prohibited nature of such use.42 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

41

This mental element recognizes the interplay between article 30 and article 32. The term ’prohibited nature’ denotes illegality. 42 This mental element recognizes the interplay between article 30 and article 32. The “should have known” test required in the other offences found in article 8 (2) (b) (vii) is not applicable here because of the variable and regulatory nature of the relevant prohibitions.

606

Elements of Crimes Article 8 (2) (b) (vii)-4 War crime of improper use of the distinctive emblems of the Geneva Conventions

Elements 1. The perpetrator used the distinctive emblems of the Geneva Conventions. 2. The perpetrator made such use for combatant purposes43 in a manner prohibited under the international law of armed conflict. 3. The perpetrator knew or should have known of the prohibited nature of such use.44 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory Elements 1. The perpetrator: (a) Transferred,45 directly or indirectly, parts of its own population into the territory it occupies; or (b) Deported or transferred all or parts of the population of the occupied territory within or outside this territory. 2. The conduct took place in the context of and was associated with an international armed conflict. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

43

Combatant purposes in these circumstances means purposes directly related to hostilities and not including medical, religious or similar activities. 44 This mental element recognizes the interplay between article 30 and article 32. The term ’prohibited nature’ denotes illegality. 45 The term ’transfer’ needs to be interpreted in accordance with the relevant provisions of international humanitarian law.

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Article 8 (2) (b) (ix) War crime of attacking protected objects46 Elements 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8 (2) (b) (x)-1 War crime of mutilation Elements 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct caused death or seriously endangered the physical or mental health of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons interest.47 4. Such person or persons were in the power of an adverse party. 5. The conduct took place in the context of and was associated with an international armed conflict.

46 The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective. 47 Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the same element for article 8 (2) (b) (x)-2.

608

Elements of Crimes

6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (x)-2 War crime of medical or scientific experiments Elements 1. The perpetrator subjected one or more persons to a medical or scientific experiment. 2. The experiment caused death or seriously endangered the physical or mental health or integrity of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons’ interest. 4. Such person or persons were in the power of an adverse party. 5. The conduct took place in the context of and was associated with an international armed conflict. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xi) War crime of treacherously killing or wounding Elements 1. The perpetrator invited the confidence or belief of one or more persons that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict. 2. The perpetrator intended to betray that confidence or belief. 3. The perpetrator killed or injured such person or persons. 4. The perpetrator made use of that confidence or belief in killing or injuring such person or persons. 5. Such person or persons belonged to an adverse party. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xii) War crime of denying quarter Elements 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors.

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3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xiii) War crime of destroying or seizing the enemy’s property Elements 1. The perpetrator destroyed or seized certain property. 2. Such property was property of a hostile party. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not justified by military necessity. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xiv) War crime of depriving the nationals of the hostile power of rights or actions Elements 1. The perpetrator effected the abolition, suspension or termination of admissibility in a court of law of certain rights or actions. 2. The abolition, suspension or termination was directed at the nationals of a hostile party. 3. The perpetrator intended the abolition, suspension or termination to be directed at the nationals of a hostile party. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xv) War crime of compelling participation in military operations Elements 1. The perpetrator coerced one or more persons by act or threat to take part in military operations against that person’s own country or forces.

610

Elements of Crimes

2. Such person or persons were nationals of a hostile party. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xvi) War crime of pillaging Elements 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.48 3. The appropriation was without the consent of the owner. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xvii) War crime of employing poison or poisoned weapons Elements 1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment. 2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xviii) War crime of employing prohibited gases, liquids, materials or devices Elements 1. The perpetrator employed a gas or other analogous substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties.49

48

As indicated by the use of the term .private or personal use, appropriations justified by military necessity cannot constitute the crime of pillaging.

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3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xix) War crime of employing prohibited bullets Elements 1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body. 3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xx) War crime of employing weapons, projectiles or materials or methods of warfare listed in the Annex to the Statute Elements [Elements will have to be drafted once weapons, projectiles or material or methods of warfare have been included in an annex to the Statute.] Article 8 (2) (b) (xxi) War crime of outrages upon personal dignity Elements 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.50 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. 3. The conduct took place in the context of and was associated with an international armed conflict. 49

Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons. 50 For this crime, persons can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.

612

Elements of Crimes

4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxii)-1 War crime of rape Elements 1. The perpetrator invaded51 the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.52 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxii)-2 War crime of sexual slavery53 Elements 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.54 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.

51

The concept of invasion is intended to be broad enough to be gender-neutral. It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements of article 8 (2) (b) (xxii)-3, 5 and 6. 53 Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose. 54 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children. 52

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3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxii)-3 War crime of enforced prostitution Elements 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxii)-4 War crime of forced pregnancy Elements 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct took place in the context of and was associated with an international armed conflict. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxii)-5 War crime of enforced sterilization Elements 1. The perpetrator deprived one or more persons of biological reproductive capacity.55

55 The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.

614

Elements of Crimes

2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.56 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxii)-6 War crime of sexual violence Elements 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The conduct was of a gravity comparable to that of a grave breach of the Geneva Conventions. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxiii) War crime of using protected persons as shields Elements 1. The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict. 2. The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

56

It is understood that .genuine consent. does not include consent obtained through deception.

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Article 8 (2) (b) (xxiv) War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions Elements 1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxv) War crime of starvation as a method of warfare Elements 1. The perpetrator deprived civilians of objects indispensable to their survival. 2. The perpetrator intended to starve civilians as a method of warfare. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (b) (xxvi) War crime of using, conscripting or enlisting children Elements 1. The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years. 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

616

Elements of Crimes Article 8 (2) (c) Article 8 (2) (c) (i)-1 War crime of murder

Elements 1. The perpetrator killed one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel57 taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (c) (i)-2 War crime of mutilation Elements 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interests. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (c) (i)-3 War crime of cruel treatment Elements 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. 57 The term “religious personnel” includes those non-confessional non-combatant military personnel carrying out a similar function.

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3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (c) (i)-4 War crime of torture Elements 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (c) (ii) War crime of outrages upon personal dignity Elements 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.58 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character.

58

For this crime, persons can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.

618

Elements of Crimes

6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (c) (iii) War crime of taking hostages Elements 1. The perpetrator seized, detained or otherwise held hostage one or more persons.2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 5. The perpetrator was aware of the factual circumstances that established this status. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (c) (iv) War crime of sentencing or execution without due process Elements 1. The perpetrator passed sentence or executed one or more persons.59 2. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. 4. There was no previous judgement pronounced by a court, or the court that rendered judgement was not ‘regularly constituted’, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law.60 5. The perpetrator was aware of the absence of a previous judgement or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial. 59 The elements laid down in these documents do not address the different forms of individual criminal responsibility, as enunciated in articles 25 and 28 of the Statute. 60 With respect to elements 4 and 5, the Court should consider whether, in the light of all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the person or persons of a fair trial.

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6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) Article 8 (2) (e) (i) War crime of attacking civilians Elements 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (ii) War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions Elements 1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (iii) War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission Elements 1. The perpetrator directed an attack. 2. The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations.

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3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. The perpetrator was aware of the factual circumstances that established that protection. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (iv) War crime of attacking protected objects61 Elements 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (v) War crime of pillaging Elements 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.62 3. The appropriation was without the consent of the owner. 61

The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective. 62 As indicated by the use of the term .private or personal use, appropriations justified by military necessity cannot constitute the crime of pillaging.

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4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (vi)-1 War crime of rape Elements 1. The perpetrator invaded63 the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.64 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (vi)-2 War crime of sexual slavery65 Elements 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.66

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The concept of .invasion.is intended to be broad enough to be gender-neutral. It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements in article 8 (2) (e) (vi)-3, 5 and 6. 65 Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose. 66 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children. 64

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2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (vi)-3 War crime of enforced prostitution Elements 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (vi)-4 War crime of forced pregnancy Elements 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct took place in the context of and was associated with an armed conflict not of an international character. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (vi)-5 War crime of enforced sterilization Elements 1. The perpetrator deprived one or more persons of biological reproductive

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capacity.67 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.68 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (vi)-6 War crime of sexual violence Elements 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The conduct was of a gravity comparable to that of a serious violation of article 3 common to the four Geneva Conventions. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (vii) War crime of using, conscripting and enlisting children Elements 1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years. 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. 67

The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice. 68 It is understood that .genuine consent. does not include consent obtained through deception.

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Elements 1. The perpetrator ordered a displacement of a civilian population. 2. Such order was not justified by the security of the civilians involved or by military necessity. 3. The perpetrator was in a position to effect such displacement by giving such order. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (ix) War crime of treacherously killing or wounding Elements 1. The perpetrator invited the confidence or belief of one or more combatant adversaries that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict. 2. The perpetrator intended to betray that confidence or belief. 3. The perpetrator killed or injured such person or persons. 4. The perpetrator made use of that confidence or belief in killing or injuring such person or persons. 5. Such person or persons belonged to an adverse party. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (x) War crime of denying quarter Elements 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

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Article 8 (2) (e) (xi)-1 War crime of mutilation Elements 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct caused death or seriously endangered the physical or mental health of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons interest.69 4. Such person or persons were in the power of another party to the conflict. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (xi)-2 War crime of medical or scientific experiments Elements 1. The perpetrator subjected one or more persons to a medical or scientific experiment. 2. The experiment caused the death or seriously endangered the physical or mental health or integrity of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons’ interest. 4. Such person or persons were in the power of another party to the conflict. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

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Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the similar element in article 8 (2) (e) (xi)-2.

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Elements 1. The perpetrator destroyed or seized certain property. 2. Such property was property of an adversary. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not required by military necessity. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Rules of Procedure and Evidence Adopted by the Assembly of States Parties, First session, New York, 3-10 September 2002, Official Records ICC-ASP/1/3 Explanatory note The Rules of Procedure and Evidence are an instrument for the application of the Rome Statute of the International Criminal Court, to which they are subordinate in all cases. In elaborating the Rules of Procedure and Evidence, care has been taken to avoid rephrasing and, to the extent possible, repeating the provisions of the Statute. Direct references to the Statute have been included in the Rules, where appropriate, in order to emphasize the relationship between the Rules and the Rome Statute, as provided for in article 51, in particular, paragraphs 4 and 5. In all cases, the Rules of Procedure and Evidence should be read in conjunction with and subject to the provisions of the Statute. The Rules of Procedure and Evidence of the International Criminal Court do not affect the procedural rules for any national court or legal system for the purpose of national proceedings. In connection with rule 41, the Preparatory Commission considered whether the application of the rule would be facilitated by including a provision in the Regulations of the Court that at least one of the judges of the Chamber in which the case is heard knows the official language used as a working language in a given case. The Assembly of States Parties is invited to give further consideration to this issue.

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Chapter 1 General provisions Rule 1 Use of terms In the present document: – ‘article’ refers to articles of the Rome Statute; – ‘Chamber’ refers to a Chamber of the Court; – ‘Part’ refers to the Parts of the Rome Statute; – ‘Presiding Judge’ refers to the Presiding Judge of a Chamber; – ‘the President’ refers to the President of the Court; – ‘the Regulations’ refers to the Regulations of the Court; – ‘the Rules’ refers to the Rules of Procedure and Evidence. Rule 2 Authentic texts The Rules have been adopted in the official languages of the Court established by article 50, paragraph 1. All texts are equally authentic. Rule 3 Amendments 1. Amendments to the rules that are proposed in accordance with article 51, paragraph 2, shall be forwarded to the President of the Bureau of the Assembly of States Parties. 2. The President of the Bureau of the Assembly of States Parties shall ensure that all proposed amendments are translated into the official languages of the Court and are transmitted to the States Parties. 3. The procedure described in sub-rules 1 and 2 shall also apply to the provisional rules referred to in article 51, paragraph 3.

Chapter 2 Composition and administration of the Court Section I General provisions relating to the composition and administration of the Court Rule 4 Plenary sessions 1. The judges shall meet in plenary session not later than two months after their election. At that first session, after having made their solemn undertaking, in conformity with rule 5, the judges shall: (a) Elect the President and Vice-Presidents; (b) Assign judges to divisions.

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2. The judges shall meet subsequently in plenary session at least once a year to exercise their functions under the Statute, the Rules and the Regulations and, if necessary, in special plenary sessions convened by the President on his or her own motion or at the request of one half of the judges. 3. The quorum for each plenary session shall be two-thirds of the judges. 4. Unless otherwise provided in the Statute or the Rules, the decisions of the plenary sessions shall be taken by the majority of the judges present. In the event of an equality of votes, the President, or the judge acting in the place of the President, shall have a casting vote. 5. The Regulations shall be adopted as soon as possible in plenary sessions. Rule 5 Solemn undertaking under article 45 1. As provided in article 45, before exercising their functions under the Statute, the following solemn undertakings shall be made: (a) In the case of a judge: ‘I solemnly undertake that I will perform my duties and exercise my powers as a judge of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions and the secrecy of deliberations.’; (b) In the case of the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court: ‘I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.’ 2. The undertaking, signed by the person making it and witnessed by the President or a Vice-President of the Bureau of the Assembly of States Parties, shall be filed with the Registry and kept in the records of the Court. Rule 6 Solemn undertaking by the staff of the Office of the Prosecutor, the Registry, interpreters and translators 1. Upon commencing employment, every staff member of the Office of the Prosecutor and the Registry shall make the following undertaking: ‘I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.’; The undertaking, signed by the person making it and witnessed, as appropriate, by the Prosecutor, the Deputy Prosecutor, the Registrar or the Deputy Registrar, shall be filed with the Registry and kept in the records of the Court. 2. Before performing any duties, an interpreter or a translator shall make the following undertaking: ‘I solemnly declare that I will perform my duties faithfully, impartially and with full respect for the duty of confidentiality.’;

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The undertaking, signed by the person making it and witnessed by the President of the Court or his or her representative, shall be filed with the Registry and kept in the records of the Court. Rule 7 Single judge under article 39, paragraph 2 (b) (iii) 1. Whenever the Pre-Trial Chamber designates a judge as a single judge in accordance with article 39, paragraph 2 (b) (iii), it shall do so on the basis of objective pre-established criteria. 2. The designated judge shall make the appropriate decisions on those questions on which decision by the full Chamber is not expressly provided for in the Statute or the Rules. 3. The Pre-Trial Chamber, on its own motion or, if appropriate, at the request of a party, may decide that the functions of the single judge be exercised by the full Chamber. Rule 8 Code of Professional Conduct 1. The Presidency, on the basis of a proposal made by the Registrar, shall draw up a draft Code of Professional Conduct for counsel, after having consulted the Prosecutor. In the preparation of the proposal, the Registrar shall conduct the consultations in accordance with rule 20, sub-rule 3. 2. The draft Code shall then be transmitted to the Assembly of States Parties, for the purpose of adoption, according to article 112, paragraph 7. 3. The Code shall contain procedures for its amendment. Section II The Office of the Prosecutor Rule 9 Operation of the Office of the Prosecutor In discharging his or her responsibility for the management and administration of the Office of the Prosecutor, the Prosecutor shall put in place regulations to govern the operation of the Office. In preparing or amending these regulations, the Prosecutor shall consult with the Registrar on any matters that may affect the operation of the Registry. Rule 10 Retention of information and evidence The Prosecutor shall be responsible for the retention, storage and security of information and physical evidence obtained in the course of the investigations by his or her Office.

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Rule 11 Delegation of the Prosecutor’s functions Except for the inherent powers of the Prosecutor set forth in the Statute, inter alia, those described in articles 15 and 53, the Prosecutor or a Deputy Prosecutor may authorize staff members of the Office of the Prosecutor, other than those referred to in article 44, paragraph 4, to represent him or her in the exercise of his or her functions. Section III The Registry Subsection 1 General provisions relating to the Registry Rule 12 Qualifications and election of the Registrar and the Deputy Registrar 1. As soon as it is elected, the Presidency shall establish a list of candidates who satisfy the criteria laid down in article 43, paragraph 3, and shall transmit the list to the Assembly of States Parties with a request for any recommendations. 2. Upon receipt of any recommendations from the Assembly of States Parties, the President shall, without delay, transmit the list together with the recommendations to the plenary session. 3. As provided for in article 43, paragraph 4, the Court, meeting in plenary session, shall, as soon as possible, elect the Registrar by an absolute majority, taking into account any recommendations by the Assembly of States Parties. In the event that no candidate obtains an absolute majority on the first ballot, successive ballots shall be held until one candidate obtains an absolute majority. 4. If the need for a Deputy Registrar arises, the Registrar may make a recommendation to the President to that effect. The President shall convene a plenary session to decide on the matter. If the Court, meeting in plenary session, decides by an absolute majority that a Deputy Registrar is to be elected, the Registrar shall submit a list of candidates to the Court. 5. The Deputy Registrar shall be elected by the Court, meeting in plenary session, in the same manner as the Registrar. Rule 13 Functions of the Registrar 1. Without prejudice to the authority of the Office of the Prosecutor under the Statute to receive, obtain and provide information and to establish channels of communication for this purpose, the Registrar shall serve as the channel of communication of the Court. 2. The Registrar shall also be responsible for the internal security of the Court in consultation with the Presidency and the Prosecutor, as well as the host State.

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Rule 14 Operation of the Registry 1. In discharging his or her responsibility for the organization and management of the Registry, the Registrar shall put in place regulations to govern the operation of the Registry. In preparing or amending these regulations, the Registrar shall consult with the Prosecutor on any matters which may affect the operation of the Office of the Prosecutor. The regulations shall be approved by the Presidency. 2. The regulations shall provide for defence counsel to have access to appropriate and reasonable administrative assistance from the Registry. Rule 15 Records 1. The Registrar shall keep a database containing all the particulars of each case brought before the Court, subject to any order of a judge or Chamber providing for the non-disclosure of any document or information, and to the protection of sensitive personal data. Information on the database shall be available to the public in the working languages of the Court. 2. The Registrar shall also maintain the other records of the Court. Subsection 2 Victims and Witnesses Unit Rule 16 Responsibilities of the Registrar relating to victims and witnesses 1. In relation to victims, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules: (a) Providing notice or notification to victims or their legal representatives; (b) Assisting them in obtaining legal advice and organizing their legal representation, and providing their legal representatives with adequate support, assistance and information, including such facilities as may be necessary for the direct performance of their duty, for the purpose of protecting their rights during all stages of the proceedings in accordance with rules 89 to 91; (c) Assisting them in participating in the different phases of the proceedings in accordance with rules 89 to 91; (d) Taking gender-sensitive measures to facilitate the participation of victims of sexual violence at all stages of the proceedings. 2. In relation to victims, witnesses and others who are at risk on account of testimony given by such witnesses, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules: (a) Informing them of their rights under the Statute and the Rules, and of the existence, functions and availability of the Victims and Witnesses Unit; (b) Ensuring that they are aware, in a timely manner, of the relevant decisions of the Court that may have an impact on their interests, subject to provisions on confidentiality.

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3. For the fulfilment of his or her functions, the Registrar may keep a special register for victims who have expressed their intention to participate in relation to a specific case. 4. Agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the States by the Registrar on behalf of the Court. Such agreements may remain confidential. Rule 17 Functions of the Unit 1. The Victims and Witnesses Unit shall exercise its functions in accordance with article 43, paragraph 6. 2. The Victims and Witnesses Unit shall, inter alia, perform the following functions, in accordance with the Statute and the Rules, and in consultation with the Chamber, the Prosecutor and the defence, as appropriate: (a) With respect to all witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances: (i) Providing them with adequate protective and security measures and formulating long- and short-term plans for their protection; (ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures; (iii) Assisting them in obtaining medical, psychological and other appropriate assistance; (iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality; (v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasizing the vital nature of security and confidentiality for investigators of the Court and of the defence and all intergovernmental and non-governmental organizations acting at the request of the Court, as appropriate; (vi) Cooperating with States, where necessary, in providing any of the measures stipulated in this rule; (b) With respect to witnesses: (i) Advising them where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony; (ii) Assisting them when they are called to testify before the Court; (iii) Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings. 3. In performing its functions, the Unit shall give due regard to the particular needs of children, elderly persons and persons with disabilities. In order to facilitate the participation and protection of children as witnesses, the Unit may assign, as appropriate, and with the agreement of the parents or the legal guardian, a child-support person to assist a child through all stages of the proceedings.

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Rule 18 Responsibilities of the Unit For the efficient and effective performance of its work, the Victims and Witnesses Unit shall: (a) Ensure that the staff in the Unit maintain confidentiality at all times; (b) While recognizing the specific interests of the Office of the Prosecutor, the defence and the witnesses, respect the interests of the witness, including, where necessary, by maintaining an appropriate separation of the services provided to the prosecution and defence witnesses, and act impartially when cooperating with all parties and in accordance with the rulings and decisions of the Chambers; (c) Have administrative and technical assistance available for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, during all stages of the proceedings and thereafter, as reasonably appropriate; (d) Ensure training of its staff with respect to victims’ and witnesses’ security, integrity and dignity, including matters related to gender and cultural sensitivity; (e) Where appropriate, cooperate with intergovernmental and nongovernmental organizations. Rule 19 Expertise in the Unit In addition to the staff mentioned in article 43, paragraph 6, and subject to article 44, the Victims and Witnesses Unit may include, as appropriate, persons with expertise, inter alia, in the following areas: (a) Witness protection and security; (b) Legal and administrative matters, including areas of humanitarian and criminal law; (c) Logistics administration; (d) Psychology in criminal proceedings; (e) Gender and cultural diversity; (f) Children, in particular traumatized children; (g) Elderly persons, in particular in connection with armed conflict and exile trauma; (h) Persons with disabilities; (i) Social work and counselling; (j) Health care; (k) Interpretation and translation. Subsection 3 Counsel for the defence Rule 20 Responsibilities of the Registrar Relating to the rights of the defence 1. In accordance with article 43, paragraph 1, the Registrar shall organize the staff of the Registry in a manner that promotes the rights of the defence, consistent

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with the principle of fair trial as defined in the Statute. For that purpose, the Registrar shall, inter alia: (a) Facilitate the protection of confidentiality, as defined in article 67, paragraph 1 (b); (b) Provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence; (c) Assist arrested persons, persons to whom article 55, paragraph 2, applies and the accused in obtaining legal advice and the assistance of legal counsel; (d) Advise the Prosecutor and the Chambers, as necessary, on relevant defencerelated issues; (e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence; (f) Facilitate the dissemination of information and case law of the Court to defence counsel and, as appropriate, cooperate with national defence and bar associations or any independent representative body of counsel and legal associations referred to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules. 2. The Registrar shall carry out the functions stipulated in sub-rule 1, including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel. 3. For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties. Rule 21 Assignment of legal assistance 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity. 5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at

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that time may make an order of contribution to recover the cost of providing counsel. Rule 22 Appointment and qualifications of Counsel for the defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties. Section 4 Situations that may affect the functioning of the Court Subsection 1 Removal from office and disciplinary measures Rule 23 General principle A judge, the Prosecutor, a Deputy Prosecutor, the Registrar and a Deputy Registrar shall be removed from office or shall be subject to disciplinary measures in such cases and with such guarantees as are established in the Statute and the Rules. Rule 24 Definition of serious misconduct and serious breach of duty 1. For the purposes of article 46, paragraph 1 (a), ‘serious misconduct’ shall be constituted by conduct that: (a) If it occurs in the course of official duties, is incompatible with official functions, and causes or is likely to cause serious harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as: (i) Disclosing facts or information that he or she has acquired in the course of his or her duties or on a matter which is sub judice, where such disclosure is seriously prejudicial to the judicial proceedings or to any person;

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(ii) Concealing information or circumstances of a nature sufficiently serious to have precluded him or her from holding office; (iii) Abuse of judicial office in order to obtain unwarranted favourable treatment from any authorities, officials or professionals; or (b) If it occurs outside the course of official duties, is of a grave nature that causes or is likely to cause serious harm to the standing of the Court. 2. For the purposes of article 46, paragraph 1 (a), a ‘serious breach of duty’ occurs where a person has been grossly negligent in the performance of his or her duties or has knowingly acted in contravention of those duties. This may include, inter alia, situations where the person: (a) Fails to comply with the duty to request to be excused, knowing that there are grounds for doing so; (b) Repeatedly causes unwarranted delay in the initiation, prosecution or trial of cases, or in the exercise of judicial powers. Rule 25 Definition of misconduct of a less serious nature 1. For the purposes of article 47, ‘misconduct of a less serious nature’ shall be constituted by conduct that: (a) If it occurs in the course of official duties, causes or is likely to cause harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as: (i) Interfering in the exercise of the functions of a person referred to in article 47; (ii) Repeatedly failing to comply with or ignoring requests made by the Presiding Judge or by the Presidency in the exercise of their lawful authority; (iii) Failing to enforce the disciplinary measures to which the Registrar or a Deputy Registrar and other officers of the Court are subject when a judge knows or should know of a serious breach of duty on their part; or (b) If it occurs outside the course of official duties, causes or is likely to cause harm to the standing of the Court. 2. Nothing in this rule precludes the possibility of the conduct set out in subrule 1 (a) constituting ‘serious misconduct’ or “serious breach of duty’ for the purposes of article 46, paragraph 1 (a). Rule 26 Receipt of complaints 1. For the purposes of article 46, paragraph 1, and article 47, any complaint concerning any conduct defined under rules 24 and 25 shall include the grounds on which it is based, the identity of the complainant and, if available, any relevant evidence. The complaint shall remain confidential. 2. All complaints shall be transmitted to the Presidency, which may also initiate proceedings on its own motion, and which shall, pursuant to the Regulations, set aside anonymous or manifestly unfounded complaints and transmit the other complaints to the competent organ. The Presidency shall be

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assisted in this task by one or more judges, appointed on the basis of automatic rotation, in accordance with the Regulations. Rule 27 Common provisions on the rights of the defence 1. In any case in which removal from office under article 46 or disciplinary measures under article 47 is under consideration, the person concerned shall be so informed in a written statement. 2. The person concerned shall be afforded full opportunity to present and receive evidence, to make written submissions and to supply answers to any questions put to him or her. 3. The person may be represented by counsel during the process established under this rule. Rule 28 Suspension from duty Where an allegation against a person who is the subject of a complaint is of a sufficiently serious nature, the person may be suspended from duty pending the final decision of the competent organ. Rule 29 Procedure in the event of a request for removal from office 1. In the case of a judge, the Registrar or a Deputy Registrar, the question of removal from office shall be put to a vote at a plenary session. 2. The Presidency shall advise the President of the Bureau of the Assembly of States Parties in writing of any recommendation adopted in the case of a judge, and any decision adopted in the case of the Registrar or a Deputy Registrar. 3. The Prosecutor shall advise the President of the Bureau of the Assembly of States Parties in writing of any recommendation he or she makes in the case of a Deputy Prosecutor. 4. Where the conduct is found not to amount to serious misconduct or a serious breach of duty, it may be decided in accordance with article 47 that the person concerned has engaged in misconduct of a less serious nature and a disciplinary measure imposed. Rule 30 Procedure in the event of a request for disciplinary measures 1. In the case of a judge, the Registrar or a Deputy Registrar, any decision to impose a disciplinary measure shall be taken by the Presidency. 2. In the case of the Prosecutor, any decision to impose a disciplinary measure shall be taken by an absolute majority of the Bureau of the Assembly of States Parties. 3. In the case of a Deputy Prosecutor: (a) Any decision to give a reprimand shall be taken by the Prosecutor;

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(b) Any decision to impose a pecuniary sanction shall be taken by an absolute majority of the Bureau of the Assembly of States Parties upon the recommendation of the Prosecutor. 4. Reprimands shall be recorded in writing and shall be transmitted to the President of the Bureau of the Assembly of States Parties. Rule 31 Removal from office Once removal from office has been pronounced, it shall take effect immediately. The person concerned shall cease to form part of the Court, including for unfinished cases in which he or she was taking part. Rule 32 Disciplinary measures The disciplinary measures that may be imposed are: (a) A reprimand; or (b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned. Subsection 2 Excusing, disqualification, death and resignation Rule 33 Excusing of a judge, the Prosecutor or a Deputy Prosecutor 1. A judge, the Prosecutor or a Deputy Prosecutor seeking to be excused from his or her functions shall make a request in writing to the Presidency, setting out the grounds upon which he or she should be excused. 2. The Presidency shall treat the request as confidential and shall not make public the reasons for its decision without the consent of the person concerned. Rule 34 Disqualification of a judge, the Prosecutor or a Deputy Prosecutor 1. In addition to the grounds set out in article 41, paragraph 2, and article 42, paragraph 7, the grounds for disqualification of a judge, the Prosecutor or a Deputy Prosecutor shall include, inter alia, the following: (a) Personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties; (b) Involvement, in his or her private capacity, in any legal proceedings initiated prior to his or her involvement in the case, or initiated by him or her subsequently, in which the person being investigated or prosecuted was or is an opposing party; (c) Performance of functions, prior to taking office, during which he or she could be expected to have formed an opinion on the case in question, on the parties or on their legal representatives that, objectively, could adversely affect the required impartiality of the person concerned;

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(d) Expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned. 2. Subject to the provisions set out in article 41, paragraph 2, and article 42, paragraph 8, a request for disqualification shall be made in writing as soon as there is knowledge of the grounds on which it is based. The request shall state the grounds and attach any relevant evidence, and shall be transmitted to the person concerned, who shall be entitled to present written submissions. 3. Any question relating to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by a majority of the judges of the Appeals Chamber. Rule 35 Duty of a judge, the Prosecutor or a Deputy Prosecutor to request to be excused Where a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused and shall not wait for a request for disqualification to be made in accordance with article 41, paragraph 2, or article 42, paragraph 7, and rule 34. The request shall be made and the Presidency shall deal with it in accordance with rule 33. Rule 36 Death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar The Presidency shall inform, in writing, the President of the Bureau of the Assembly of States Parties of the death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar. Rule 37 Resignation of a judge, the Prosecutor, a Depute Prosecutor, the Registrar or a Deputy Registrar 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar shall communicate to the Presidency, in writing, his or her decision to resign. The Presidency shall inform, in writing, the President of the Bureau of the Assembly of States Parties. 2. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar shall endeavour to give notice of the date on which his or her resignation will take effect at least six months in advance. Before the resignation of a judge takes effect, he or she shall make every effort to discharge his or her outstanding responsibilities.

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Rule 38 Replacements 1. A judge may be replaced for objective and justified reasons, inter alia: (a) Resignation; (b) Accepted excuse; (c) Disqualification; (d) Removal from office; (e) Death. 2. Replacement shall take place in accordance with the pre-established procedure inthe Statute, the Rules and the Regulations. Rule 39 Alternate judges Where an alternate judge has been assigned by the Presidency to a Trial Chamber pursuant to article 74, paragraph 1, he or she shall sit through all proceedings and deliberations of the case, but may not take any part therein and shall not exercise any of the functions of the members of the Trial Chamber hearing the case, unless and until he or she is required to replace a member of the Trial Chamber if that member is unable to continue attending. Alternate judges shall be designated in accordance with a procedure pre-established by the Court. Section V Publication, languages and translation Rule 40 Publication of decisions in official languages of the Court 1. For the purposes of article 50, paragraph 1, the following decisions shall be considered as resolving fundamental issues: (a) All decisions of the Appeals Division; (b) All decisions of the Court on its jurisdiction or on the admissibility of acase pursuant to articles 17, 18, 19 and 20; (c) All decisions of a Trial Chamber on guilt or innocence, sentencing and reparations to victims pursuant to articles 74, 75 and 76; (d) All decisions of a Pre-Trial Chamber pursuant to article 57, paragraph 3 (d). 2. Decisions on confirmation of charges under article 61, paragraph 7, and on offences against the administration of justice under article 70, paragraph 3, shall be published in all the official languages of the Court when the Presidency determines that they resolve fundamental issues. 3. The Presidency may decide to publish other decisions in all the official languages when such decisions concern major issues relating to the interpretation or the implementation of the Statute or concern a major issue of general interest.

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Rule 41 Working languages of the Court 1. For the purposes of article 50, paragraph 2, the Presidency shall authorize the use of an official language of the Court as a working language when: (a) That language is understood and spoken by the majority of those involved in a case before the Court and any of the participants in the proceedings so requests; or (b) The Prosecutor and the defence so request. 2. The Presidency may authorize the use of an official language of the Court as a working language if it considers that it would facilitate the efficiency of the proceedings. Rule 42 Translation and interpretation services The Court shall arrange for the translation and interpretation services necessary to ensure the implementation of its obligations under the Statute and the Rules. Rule 43 Procedure applicable to the publication of documents of the Court The Court shall ensure that all documents subject to publication in accordance with the Statute and the Rules respect the duty to protect the confidentiality of the proceedings and the security of victims and witnesses. Chapter 3 Jurisdiction and admissibility Section I Declarations and referrals relating to articles 11, 12,13 and 14 Rule 44 Declaration provided for in article 12, paragraph 3 1. The Registrar, at the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in article 12, paragraph 3. 2. When a State lodges, or declares to the Registrar its intent to lodge, a declaration with the Registrar pursuant to article 12, paragraph 3, or when the Registrar acts pursuant to sub-rule 1, the Registrar shall inform the State concerned that the declaration under article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation and the provisions of Part 9, and any rules there under concerning States Parties, shall apply.

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Elements of Crimes Rule 45 Referral of a situation to the Prosecutor A referral of a situation to the Prosecutor shall be in writing. Section II Initiation of investigations under article 15

Rule 46 Information provided to the Prosecutor Under article 15, paragraphs 1 and 2 Where information is submitted under article 15, paragraph 1, or where oral or written testimony is received pursuant to article 15, paragraph 2, at the seat of the Court, the Prosecutor shall protect the confidentiality of such information and testimony or take any other necessary measures, pursuant to his or her duties under the Statute. Rule 47 Testimony under article 15, paragraph 2 1. The provisions of rules 111 and 112 shall apply, mutatis mutandis, to testimony received by the Prosecutor pursuant to article 15, paragraph 2. 2. When the Prosecutor considers that there is a serious risk that it might not be possible for the testimony to be taken subsequently, he or she may request the PreTrial Chamber to take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to appoint a counsel or a judge from the Pre-Trial Chamber to be present during the taking of the testimony in order to protect the rights of the defence. If the testimony is subsequently presented in the proceedings, its admissibility shall be governed by article 69, paragraph 4, and given such weight as determined by the relevant Chamber. Rule 48 Determination of reasonable basis to proceed Within investigation under article 15, paragraph 3 In determining whether there is a reasonable basis to proceed with an investigation under article 15, paragraph 3, the Prosecutor shall consider the factors set out in article 53, paragraph 1 (a) to (c). Rule 49 Decision and notice under article 15, paragraph 6 1. Where a decision under article 15, paragraph 6, is taken, the Prosecutor shall promptly ensure that notice is provided, including reasons for his or her decision, in a manner that prevents any danger to the safety, well-being and privacy of those who provided information to him or her under article 15, paragraphs 1 and 2, or the integrity of investigations or proceedings. 2. The notice shall also advise of the possibility of submitting further information regarding the same situation in the light of new facts and evidence.

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Rule 50 Procedure for authorization by the Pre-Trial Chamber of the commencement of the investigation 1. When the Prosecutor intends to seek authorization from the Pre-Trial Chamber to initiate an investigation pursuant to article 15, paragraph 3, the Prosecutor shall inform victims, known to him or her or to the Victims and Witnesses Unit, or their legal representatives, unless the Prosecutor decides that doing so would pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses. The Prosecutor may also give notice by general means in order to reach groups of victims if he or she determines in the particular circumstances of the case that such notice could not pose a danger to the integrity and effective conduct of the investigation or to the security and wellbeing of victims and witnesses. In performing these functions, the Prosecutor may seek the assistance of the Victims and Witnesses Unit as appropriate. 2. A request for authorization by the Prosecutor shall be in writing. 3. Following information given in accordance with sub-rule 1, victims may make representations in writing to the Pre-Trial Chamber within such time limit as set forth in the Regulations. 4. The Pre-Trial Chamber, in deciding on the procedure to be followed, may request additional information from the Prosecutor and from any of the victims who have made representations, and, if it considers it appropriate, may hold a hearing. 5. The Pre-Trial Chamber shall issue its decision, including its reasons, as to whether to authorize the commencement of the investigation in accordance with article 15, paragraph 4, with respect to all or any part of the request by the Prosecutor. The Chamber shall give notice of the decision to victims who have made representations. 6. The above procedure shall also apply to a new request to the Pre-Trial Chamber pursuant to article 15, paragraph 5. Section III Challenges and preliminary rulings under articles 17, 18 and 19 Rule 51 Information provided under article 17 In considering the matters referred to in article 17, paragraph 2, and in the context of the circumstances of the case, the Court may consider, inter alia, information that the State referred to in article 17, paragraph 1, may choose to bring to the attention of the Court showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct, or that the State has confirmed in writing to the Prosecutor that the case is being investigated or prosecuted.

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Rule 52 Notification provided for in article 18, paragraph 1 1. Subject to the limitations provided for in article 18, paragraph 1, the notification shall contain information about the acts that may constitute crimes referred to in article 5, relevant for the purposes of article 18, paragraph 2. 2. A State may request additional information from the Prosecutor to assist it in the application of article 18, paragraph 2. Such a request shall not affect the onemonth time limit provided for in article 18, paragraph 2, and shall be responded to by the Prosecutor on an expedited basis. Rule 53 Deferral provided for in article 18, paragraph 2 When a State requests a deferral pursuant to article 18, paragraph 2, that State shall make this request in writing and provide information concerning its investigation, taking into account article 18, paragraph 2. The Prosecutor may request additional information from that State. Rule 54 Application by the Prosecutor under article 18, paragraph 2 1. An application submitted by the Prosecutor to the Pre-Trial Chamber in accordance with article 18, paragraph 2, shall be in writing and shall contain the basis for the application. The information provided by the State under rule 53 shall be communicated by the Prosecutor to the Pre-Trial Chamber. 2. The Prosecutor shall inform that State in writing when he or she makes an application to the Pre-Trial Chamber under article 18, paragraph 2, and shall include in the notice a summary of the basis of the application. Rule 55 Proceedings concerning article 18, paragraph 2 1. The Pre-Trial Chamber shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. 2. The Pre-Trial Chamber shall examine the Prosecutor’s application and any observations submitted by a State that requested a deferral in accordance with article 18, paragraph 2, and shall consider the factors in article 17 in deciding whether to authorize an investigation. 3. The decision and the basis for the decision of the Pre-Trial Chamber shall be communicated as soon as possible to the Prosecutor and to the State that requested a deferral of an investigation. Rule 56 Application by the Prosecutor following Review under article 18, paragraph 3 1. Following a review by the Prosecutor as set forth in article 18, paragraph 3, the Prosecutor may apply to the Pre-Trial Chamber for authorization in accordance with article 18, paragraph 2. The application to the Pre-Trial Chamber shall be in writing and shall contain the basis for the application.

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2. Any further information provided by the State under article 18, paragraph 5, shall be communicated by the Prosecutor to the Pre-Trial Chamber. 3. The proceedings shall be conducted in accordance with rules 54, sub-rule 2, and 55. Rule 57 Provisional measures under article 18, paragraph 6 An application to the Pre-Trial Chamber by the Prosecutor in the circumstances provided for in article 18, paragraph 6, shall be considered ex parte and in camera. The Pre-Trial Chamber shall rule on the application on an expedited basis. Rule 58 Proceedings under article 19 1. A request or application made under article 19 shall be in writing and contain the basis for it. 2. When a Chamber receives a request or application raising a challenge or question concerning its jurisdiction or the admissibility of a case in accordance with article 19, paragraph 2 or 3, or is acting on its own motion as provided for in article 19, paragraph 1, it shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. It may join the challenge or question to a confirmation or a trial proceeding as long as this does not cause undue delay, and in this circumstance shall hear and decide on the challenge or question first. 3. The Court shall transmit a request or application received under sub-rule 2 to the Prosecutor and to the person referred to in article 19, paragraph 2, who has been surrendered to the Court or who has appeared voluntarily or pursuant to a summons, and shall allow them to submit written observations to the request or application within a period of time determined by the Chamber. 4. The Court shall rule on any challenge or question of jurisdiction first and then on any challenge or question of admissibility. Rule 59 Participation in proceedings under article 19, paragraph 3 1. For the purpose of article 19, paragraph 3, the Registrar shall inform the following of any question or challenge of jurisdiction or admissibility which has arisen pursuant to article 19, paragraphs 1, 2 and 3: (a) Those who have referred a situation pursuant to article 13; (b) The victims who have already communicated with the Court in relation to that case or their legal representatives. 2. The Registrar shall provide those referred to in sub-rule 1, in a manner consistent with the duty of the Court regarding the confidentiality of information, the protection of any person and the preservation of evidence, with a summary of the grounds on which the jurisdiction of the Court or the admissibility of the case has been challenged.

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3. Those receiving the information, as provided for in sub-rule 1, may make representation in writing to the competent Chamber within such time limit as it considers appropriate. Rule 60 Competent organ to receive challenges If a challenge to the jurisdiction of the Court or to the admissibility of a case is made after a confirmation of the charges but before the constitution or designation of the Trial Chamber, it shall be addressed to the Presidency, which shall refer it to the Trial Chamber as soon as the latter is constituted or designated in accordance with rule 130. Rule 61 Provisional measures under article 19, paragraph 8 When the Prosecutor makes application to the competent Chamber in the circumstances provided for in article 19, paragraph 8, rule 57 shall apply. Rule 62 Proceedings under article 19, paragraph 10 1. If the Prosecutor makes a request under article 19, paragraph 10, he or she shall make the request to the Chamber that made the latest ruling on admissibility. The provisions of rules 58, 59 and 61 shall be applicable. 2. The State or States whose challenge to admissibility under article 19, paragraph 2, provoked the decision of inadmissibility provided for in article 19, paragraph 10, shall be notified of the request of the Prosecutor and shall be given a time limit within which to make representations. Chapter 4 Provisions relating to various stages of the proceedings Section I Evidence Rule 63 General provisions relating to evidence 1. The rules of evidence set forth in this chapter, together with article 69, shall apply in proceedings before all Chambers. 2. A Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9, to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69. 3. A Chamber shall rule on an application of a party or on its own motion, made under article 64, subparagraph 9 (a), concerning admissibility when it is based on the grounds set out in article 69, paragraph 7. 4. Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence.

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5. The Chambers shall not apply national laws governing evidence, other than in accordance with article 21. Rule 64 Procedure relating to the relevance or admissibility of evidence 1. An issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known. The Chamber may request that the issue be raised in writing. The written motion shall be communicated by the Court to all those who participate in the proceedings, unless otherwise decided by the Court. 2. A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1. 3. Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber. Rule 65 Compellability of witnesses 1. A witness who appears before the Court is compellable by the Court to provide testimony, unless otherwise provided for in the Statute and the Rules, in particular rules 73, 74 and 75. 2. Rule 171 applies to a witness appearing before the Court who is compellable to provide testimony under sub-rule 1. Rule 66 Solemn undertaking 1. Except as described in sub-rule 2, every witness shall, in accordance with article 69, paragraph 1, make the following solemn undertaking before testifying: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.” 2. A person under the age of 18 or a person whose judgement has been impaired and who, in the opinion of the Chamber, does not understand the nature of a solemn undertaking may be allowed to testify without this solemn undertaking if the Chamber considers that the person is able to describe matters of which he or she has knowledge and that the person understands the meaning of the duty to speak the truth. 3. Before testifying, the witness shall be informed of the offence defined in article 70, paragraph 1 (a). Rule 67 Live testimony by means of audio or video-link technology 1. In accordance with article 69, paragraph 2, a Chamber may allow a witness to give viva voce (oral) testimony before the Chamber by means of audio or video

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technology, provided that such technology permits the witness to be examined by the Prosecutor, the defence, and by the Chamber itself, at the time that the witness so testifies. 2. The examination of a witness under this rule shall be conducted in accordance with the relevant rules of this chapter. 3. The Chamber, with the assistance of the Registry, shall ensure that the venue chosen for the conduct of the audio or video-link testimony is conducive to the giving of truthful and open testimony and to the safety, physical and psychological well-being, dignity and privacy of the witness. Rule 68 Prior recorded testimony When the Pre-Trial Chamber has not taken measures under article 56, the Trial Chamber may, in accordance with article 69, paragraph 2, allow the introduction of previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony, provided that: (a) If the witness who gave the previously recorded testimony is not present before the Trial Chamber, both the Prosecutor and the defence had the opportunity to examine the witness during the recording; or (b) If the witness who gave the previously recorded testimony is present before the Trial Chamber, he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the defence and the Chamber have the opportunity to examine the witness during the proceedings. Rule 69 Agreements as to evidence The Prosecutor and the defence may agree that an alleged fact, which is contained in the charges, the contents of a document, the expected testimony of a witness or other evidence is not contested and, accordingly, a Chamber may consider such alleged fact as being proven, unless the Chamber is of the opinion that a more complete presentation of the alleged facts is required in the interests of justice, in particular the interests of the victims. Rule 70 Principles of evidence in cases of sexual violence In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles: (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent; (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;

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(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness. Rule 71 Evidence of other sexual conduct In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness. Rule 72 In camera procedure to consider relevance or admissibility of evidence 1. Where there is an intention to introduce or elicit, including by means of the questioning of a victim or witness, evidence that the victim consented to an alleged crime of sexual violence, or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in principles (a) through (d) of rule 70, notification shall be provided to the Court which shall describe the substance of the evidence intended to be introduced or elicited and the relevance of the evidence to the issues in the case. 2. In deciding whether the evidence referred to in sub-rule 1 is relevant or admissible, a Chamber shall hear in camera the views of the Prosecutor, the defence, the witness and the victim or his or her legal representative, if any, and shall take into account whether that evidence has a sufficient degree of probative value to an issue in the case and the prejudice that such evidence may cause, in accordance with article 69, paragraph 4. For this purpose, the Chamber shall have regard to article 21, paragraph 3, and articles 67 and 68, and shall be guided by principles (a) to (d) of rule 70, especially with respect to the proposed questioning of a victim. 3. Where the Chamber determines that the evidence referred to in sub-rule 2 is admissible in the proceedings, the Chamber shall state on the record the specific purpose for which the evidence is admissible. In evaluating the evidence during the proceedings, the Chamber shall apply principles (a) to (d) of rule 70. Rule 73 Privileged communications and information 1. Without prejudice to article 67, paragraph 1 (b), communications made in the context of the professional relationship between a person and his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless: (a) The person consents in writing to such disclosure; or (b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. 2. Having regard to rule 63, sub-rule 5, communications made in the context of a class of professional or other confidential relationships shall be regarded as

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privileged, and consequently not subject to disclosure, under the same terms as in sub-rules 1 (a) and 1 (b) if a Chamber decides in respect of that class that: (a) Communications occurring within that class of relationship are made n the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure; (b) Confidentiality is essential to the nature and type of relationship between he person and the confidant; and (c) Recognition of the privilege would further the objectives of the Statute and the Rules. 3. In making a decision under sub-rule 2, the Court shall give particular regard to recognizing as privileged those communications made in the context of the professional relationship between a person and his or her medical doctor, psychiatrist, psychologist or counsellor, in particular those related to or involving victims, or between a person and a member of a religious clergy; and in the latter case, the Court shall recognize as privileged those communications made in the context of a sacred confession where it is an integral part of the practice of that religion. 4. The Court shall regard as privileged, and consequently not subject to disclosure, including by way of testimony of any present or past official or employee of the International Committee of the Red Cross (ICRC), any information, documents or the evidence which it came into the possession of in the course, or as a consequence, of the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement, unless: (a) After consultations undertaken pursuant to sub-rule 6, ICRC does not object in writing to such disclosure, or otherwise has waived this privilege; or (b Such information, documents or other evidence is contained in public statements and documents of ICRC. 5. Nothing in sub-rule 4 shall affect the admissibility of the same evidence obtained from a source other than ICRC and its officials or employees when such evidence has also been acquired by this source independently of ICRC and its officials or employees. 6. If the Court determines that ICRC information, documents or other evidence are of great importance for a particular case, consultations shall be held between the Court and ICRC in order to seek to resolve the matter by cooperative means, bearing in mind the circumstances of the case, the relevance of the evidence sought, whether the evidence could be obtained from a source other than ICRC, the interests of justice and of victims, and the performance of the Court’s and ICRC’s functions. Rule 74 Self-incrimination by a witness 1. Unless a witness has been notified pursuant to rule 190, the Chamber shall notify a witness of the provisions of this rule before his or her testimony. 2. Where the Court determines that an assurance with respect to selfincrimination should be provided to a particular witness, it shall provide the

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assurances under sub-rule 3, paragraph (c), before the witness attends, directly or pursuant to a request under article 93, paragraph (1) (e). 3.(a) A witness may object to making any statement that might tend to incriminate him or her. (b) Where the witness has attended after receiving an assurance under sub-rule 2, the Court may require the witness to answer the question or questions. (c) In the case of other witnesses, the Chamber may require the witness to answer the question or questions, after assuring the witness that the evidence provided in response to the questions: (i) Will be kept confidential and will not be disclosed to the public r any State; and (ii) Will not be used either directly or indirectly against that person in any subsequent prosecution by the Court, except under articles 70 and 71. 4. Before giving such an assurance, the Chamber shall seek the views of the Prosecutor, ex parte, to determine if the assurance should be given to this particular witness. 5. In determining whether to require the witness to answer, the Chamber shall consider: (a) The importance of the anticipated evidence; (b) Whether the witness would be providing unique evidence; (c) The nature of the possible incrimination, if known; and (d) The sufficiency of the protections for the witness, in the particular circumstances. 6. If the Chamber determines that it would not be appropriate to provide an assurance to this witness, it shall not require the witness to answer the question. If the Chamber determines not to require the witness to answer, it may still continue the questioning of the witness on other matters. 7. In order to give effect to the assurance, the Chamber shall: (a) Order that the evidence of the witness be given in camera; (b) Order that the identity of the witness and the content of the evidence given shall not be disclosed, in any manner, and provide that the breach of any such order will be subject to sanction under article 71; (c) Specifically advise the Prosecutor, the accused, the defence counsel, the legal representative of the victim and any Court staff present of the consequences of a breach of the order under subparagraph (b); (d) Order the sealing of any record of the proceedings; and (e) Use protective measures with respect to any decision of the Court to ensure that the identity of the witness and the content of the evidence given are not disclosed. 8. Where the Prosecutor is aware that the testimony of any witness may raise issues with respect to self-incrimination, he or she shall request an in camera hearing and advise the Chamber of this, in advance of the testimony of the witness. The Chamber may impose the measures outlined in sub-rule 7 for all or a part of the testimony of that witness. 9. The accused, the defence counsel or the witness may advise the Prosecutor or the Chamber that the testimony of a witness will raise issues of self-

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incrimination before the witness testifies and the Chamber may take the measures outlined in sub-rule 7. 10. If an issue of self-incrimination arises in the course of the proceedings, the Chamber shall suspend the taking of the testimony and provide the witness with an opportunity to obtain legal advice if he or she so requests for the purpose of the application of the rule. Rule 75 Incrimination by family members 1. A witness appearing before the Court, who is a spouse, child or parent of an accused person, shall not be required by a Chamber to make any statement that might tend to incriminate that accused person. However, the witness may choose to make such a statement. 2. In evaluating the testimony of a witness, a Chamber may take into account that the witness, referred to in sub-rule 1, objected to reply to a question which was intended to contradict a previous statement made by the witness, or the witness was selective in choosing which questions to answer. Section II Disclosure Rule 76 Pre-trial disclosure relating to prosecution witnesses 1. The Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses. This shall be done sufficiently in advance to enable the adequate preparation of the defence. 2. The Prosecutor shall subsequently advise the defence of the names of any additional prosecution witnesses and provide copies of their statements when the decision is made to call those witnesses. 3. The statements of prosecution witnesses shall be made available in original and in a language which the accused fully understands and speaks. 4. This rule is subject to the protection and privacy of victims and witnesses and the protection of confidential information as provided for in the Statute and rules 81 and 82. Rule 77 Inspection of material in possession or control of the Prosecutor The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person.

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Rule 78 Inspection of material in possession or control of the defence The defence shall permit the Prosecutor to inspect any books, documents, photographs and other tangible objects in the possession or control of the defence, which are intended for use by the defence as evidence for the purposes of the confirmation hearing or at trial. Rule 79 Disclosure by the defence 1. The defence shall notify the Prosecutor of its intent to: (a) Raise the existence of an alibi, in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names of witnesses and any other evidence upon which the accused intends to rely to establish the alibi; or (b) Raise a ground for excluding criminal responsibility provided for in article 31, paragraph 1, in which case the notification shall specify the names of witnesses and any other evidence upon which the accused intends to rely to establish the ground. 2. With due regard to time limits set forth in other rules, notification under subrule 1 hall be given sufficiently in advance to enable the Prosecutor to prepare adequately and to respond. The Chamber dealing with the matter may grant the Prosecutor an adjournment to address the issue raised by the defence. 3. Failure of the defence to provide notice under this rule shall not limit its right to raise matters dealt with in sub-rule 1 and to present evidence. 4. This rule does not prevent a Chamber from ordering disclosure of any other evidence. Rule 80 Procedures for raising a ground for excluding criminal responsibility under article 31, paragraph 3 1. The defence shall give notice to both the Trial Chamber and the Prosecutor if it intends to raise a ground for excluding criminal responsibility under article 31, paragraph 3. This shall be done sufficiently in advance of the commencement of the trial to enable the Prosecutor to prepare adequately for trial. 2. Following notice given under sub-rule 1, the Trial Chamber shall hear both the Prosecutor and the defence before deciding whether the defence can raise a ground for excluding criminal responsibility. 3. If the defence is permitted to raise the ground, the Trial Chamber may grant the Prosecutor an adjournment to address that ground. Rule 81 Restrictions on disclosure 1. Reports, memoranda or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case are not subject to disclosure.

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2. Where material or information is in the possession or control of the Prosecutor which must be disclosed in accordance with the Statute, but disclosure may prejudice further or ongoing investigations, the Prosecutor may apply to the Chamber dealing with the matter for a ruling as to whether the material or information must be disclosed to the defence. The matter shall be heard on an ex parte basis by the Chamber. However, the Prosecutor may not introduce such material or information into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused. 3. Where steps have been taken to ensure the confidentiality of information, in accordance with articles 54, 57, 64, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, such information shall not be disclosed, except in accordance with those articles. When the disclosure of such information may create a risk to the safety of the witness, the Court shall take measures to inform the witness in advance. 4. The Chamber dealing with the matter shall, on its own motion or at the request of the Prosecutor, the accused or any State, take the necessary steps to ensure the confidentiality of information, in accordance with articles 54, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial. 5. Where material or information is in the possession or control of the Prosecutor which is withheld under article 68, paragraph 5, such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused. 6. Where material or information is in the possession or control of the defence which is subject to disclosure, it may be withheld in circumstances similar to those which would allow the Prosecutor to rely on article 68, paragraph 5, and a summary thereof submitted instead. Such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the Prosecutor. Rule 82 Restrictions on disclosure of material and Information protected under article 54, paragraph 3 (e) 1. Where material or information is in the possession or control of the Prosecutor which is protected under article 54, paragraph 3 (e), the Prosecutor may not subsequently introduce such material or information into evidence without the prior consent of the provider of the material or information and adequate prior disclosure to the accused. 2. If the Prosecutor introduces material or information protected under article 54, paragraph 3 (e), into evidence, a Chamber may not order the production of additional evidence received from the provider of the initial material or information, nor may a Chamber for the purpose of obtaining such additional evidence itself summon the provider or a representative of the provider as a witness or order their attendance.

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3. If the Prosecutor calls a witness to introduce in evidence any material or information which has been protected under article 54, paragraph 3 (e), a Chamber may not compel that witness to answer any question relating to the material or information or its origin, if the witness declines to answer on grounds of confidentiality. 4. The right of the accused to challenge evidence which has been protected under article 54, paragraph 3 (e), shall remain unaffected subject only to the limitations contained in sub-rules 2 and 3. 5. A Chamber dealing with the matter may order, upon application by the defence, that, in the interests of justice, material or information in the possession of the accused, which has been provided to the accused under the same conditions as set forth in article 54, paragraph 3 (e), and which is to be introduced into evidence, shall be subject mutatis mutandis to sub-rules 1, 2 and 3. Rule 83 Ruling on exculpatory evidence under article 67, paragraph 2 The Prosecutor may request as soon as practicable a hearing on an ex parte basis before the Chamber dealing with the matter for the purpose of obtaining a ruling under article 67, paragraph 2. Rule 84 Disclosure and additional evidence for trial In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3 (c) and 6 (d), and article 67, paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber. Section III Victims and witnesses Subsection 1 Definition and general principle relating to victims Rule 85 Definition of victims For the purposes of the Statute and the Rules of Procedure and Evidence: (a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

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Rule 86 General principle A Chamber in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence. Subsection 2 Protection of victims and witnesses Rule 87 Protective measures 1. Upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure. 2. A motion or request under sub-rule 1 shall be governed by rule 134, provided that: (a) Such a motion or request shall not be submitted ex parte; (b) A request by a witness or by a victim or his or her legal representative, if any, shall be served on both the Prosecutor and the defence, each of whom shall have the opportunity to respond; (c) A motion or request affecting a particular witness or a particular victim shall be served on that witness or victim or his or her legal representative, if any, in addition to the other party, each of whom shall have the opportunity to respond; (d) When the Chamber proceeds on its own motion, notice and opportunity to respond shall be given to the Prosecutor and the defence, and to any witness or any victim or his or her legal representative, if any, who would be affected by such protective measure; and (e) A motion or request may be filed under seal, and, if so filed, shall remain sealed until otherwise ordered by a Chamber. Responses to motions or requests filed under seal shall also be filed under seal. 3. A Chamber may, on a motion or request under sub-rule 1, hold a hearing, which shall be conducted in camera, to determine whether to order measures to prevent the release to the public or press and information agencies, of the identity or the location of a victim, a witness or other person at risk on account of testimony given by a witness by ordering, inter alia: (a) That the name of the victim, witness or other person at risk on account of testimony given by a witness or any information which could lead to his or her identification, be expunged from the public records of the Chamber; (b) That the Prosecutor, the defence or any other participant in the proceedings be prohibited from disclosing such information to a third party;

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(c) That testimony be presented by electronic or other special means, including the use of technical means enabling the alteration of pictures or voice, the use of audio-visual technology, in particular videoconferencing and closed-circuit television, and the exclusive use of the sound media; (d) That a pseudonym be used for a victim, a witness or other person at risk on account of testimony given by a witness; or (e) That a Chamber conduct part of its proceedings in camera. Rule 88 Special measures 1. Upon the motion of the Prosecutor or the defence, or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may, taking into account the views of the victim or witness, order special measures such as, but not limited to, measures to facilitate the testimony of a traumatized victim or witness, a child, an elderly person or a victim of sexual violence, pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the special measure is sought prior to ordering that measure. 2. A Chamber may hold a hearing on a motion or a request under sub-rule 1, if necessary in camera or ex parte, to determine whether to order any such special measure, including but not limited to an order that a counsel, a legal representative, a psychologist or a family member be permitted to attend during the testimony of the victim or the witness. 3. For inter partes motions or requests filed under this rule, the provisions of rule 87, sub-rules 2 (b) to (d), shall apply mutatis mutandis. 4. A motion or request filed under this rule may be filed under seal, and if so filed shall remain sealed until otherwise ordered by a Chamber. Any responses to inter partes motions or requests filed under seal shall also be filed under seal. 5. Taking into consideration that violations of the privacy of a witness or victim may create risk to his or her security, a Chamber shall be vigilant in controlling the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying particular attention to attacks on victims of crimes of sexual violence. Subsection 3 Participation of victims in the proceedings Rule 89 Application for participation of victims in the proceedings 1. In order to present their views and concerns, victims shall make written application to the Registrar, who shall transmit the application to the relevant Chamber. Subject to the provisions of the Statute, in particular article 68, paragraph 1, the Registrar shall provide a copy of the application to the Prosecutor and the defence, who shall be entitled to reply within a time limit to be set by the Chamber. Subject to the provisions of sub-rule 2, the Chamber shall then specify

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the proceedings and manner in which participation is considered appropriate, which may include making opening and closing statements. 2. The Chamber, on its own initiative or on the application of the Prosecutor or the defence, may reject the application if it considers that the person is not a victim or that the criteria set forth in article 68, paragraph 3, are not otherwise fulfilled. A victim whose application has been rejected may file a new application later in the proceedings. 3. An application referred to in this rule may also be made by a person acting with the consent of the victim, or a person acting on behalf of a victim, in the case of a victim who is a child or, when necessary, a victim who is disabled. 4. Where there are a number of applications, the Chamber may consider the applications in such a manner as to ensure the effectiveness of the proceedings and may issue one decision. Rule 90 Legal representatives of victims 1. A victim shall be free to choose a legal representative. 2. Where there are a number of victims, the Chamber may, for the purposes of ensuring the effectiveness of the proceedings, request the victims or particular groups of victims, if necessary with the assistance of the Registry, to choose a common legal representative or representatives. In facilitating the coordination of victim representation, the Registry may provide assistance, inter alia, by referring the victims to a list of counsel, maintained by the Registry, or suggesting one or more common legal representatives. 3. If the victims are unable to choose a common legal representative or representatives within a time limit that the Chamber may decide, the Chamber may request the Registrar to choose one or more common legal representatives. 4. The Chamber and the Registry shall take all reasonable steps to ensure that in the selection of common legal representatives, the distinct interests of the victims, particularly as provided in article 68, paragraph 1, are represented and that any conflict of interest is avoided. 5. A victim or group of victims who lack the necessary means to pay for a common legal representative chosen by the Court may receive assistance from the Registry, including, as appropriate, financial assistance. 6. A legal representative of a victim or victims shall have the qualifications set forth in rule 22, sub-rule 1. Rule 91 Participation of legal representatives in the proceedings 1. A Chamber may modify a previous ruling under rule 89. 2. A legal representative of a victim shall be entitled to attend and participate in the proceedings in accordance with the terms of the ruling of the Chamber and any modification thereof given under rules 89 and 90. This shall include participation in hearings unless, in the circumstances of the case, the Chamber concerned is of the view that the representative’s intervention should be confined to written

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observations or submissions. The Prosecutor and the defence shall be allowed to reply to any oral or written observation by the legal representative for victims. 3.(a) When a legal representative attends and participates in accordance with this rule, and wishes to question a witness, including questioning under rules 67 and 68, an expert or the accused, the legal representative must make application to the Chamber. The Chamber may require the legal representative to provide a written note of the questions and in that case the questions shall be communicated to the Prosecutor and, if appropriate, the defence, who shall be allowed to make observations within a time limit set by the Chamber. (b) The Chamber shall then issue a ruling on the request, taking into account the stage of the proceedings, the rights of the accused, the interests of witnesses, the need for a fair, impartial and expeditious trial and in order to give effect to article 68, paragraph 3. The ruling may include directions on the manner and order of the questions and the production of documents in accordance with the powers of the Chamber under article 64. The Chamber may, if it considers it appropriate, put the question to the witness, expert or accused on behalf of the victim’s legal representative. 4. For a hearing limited to reparations under article 75, the restrictions on questioning by the legal representative set forth in sub-rule 2 shall not apply. In that case, the legal representative may, with the permission of the Chamber concerned, question witnesses, experts and the person concerned. Rule 92 Notification to victims and their legal representatives 1. This rule on notification to victims and their legal representatives shall apply to all proceedings before the Court, except in proceedings provided for in Part 2. 2. In order to allow victims to apply for participation in the proceedings in accordance with rule 89, the Court shall notify victims concerning the decision of the Prosecutor not to initiate an investigation or not to prosecute pursuant to article 53. Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the situation or case in question. The Chamber may order the measures outlined in sub-rule 8 if it considers it appropriate in the particular circumstances. 3. In order to allow victims to apply for participation in the proceedings in accordance with rule 89, the Court shall notify victims regarding its decision to hold a hearing to confirm charges pursuant to article 61. Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the case in question. 4. When a notification for participation as provided for in sub-rules 2 and 3 has been given, any subsequent notification as referred to in sub-rules 5 and 6 shall only be provided to victims or their legal representatives who may participate in the proceedings in accordance with a ruling of the Chamber pursuant to rule 89 and any modification thereof.

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5. In a manner consistent with the ruling made under rules 89 to 91, victims or their legal representatives participating in proceedings shall, in respect of those proceedings, be notified by the Registrar in a timely manner of: (a) Proceedings before the Court, including the date of hearings and any postponements thereof, and the date of delivery of the decision; (b) Requests, submissions, motions and other documents relating to such requests, submissions or motions. 6. Where victims or their legal representatives have participated in a certain stage of the proceedings, the Registrar shall notify them as soon as possible of the decisions of the Court in those proceedings. 7. Notifications as referred to in sub-rules 5 and 6 shall be in writing or, where written notification is not possible, in any other form as appropriate. The Registry shall keep a record of all notifications. Where necessary, the Registrar may seek the cooperation of States Parties in accordance with article 93, paragraph 1 (d) and (l). 8. For notification as referred to in sub-rule 3 and otherwise at the request of a Chamber, the Registrar shall take necessary measures to give adequate publicity to the proceedings. In doing so, the Registrar may seek, in accordance with Part 9, the cooperation of relevant States Parties, and seek the assistance of intergovernmental organizations. Rule 93 Views of victims or their legal representatives A Chamber may seek the views of victims or their legal representatives participating pursuant to rules 89 to 91 on any issue, inter alia, in relation to issues referred to in rules 107, 109, 125, 128, 136, 139 and 191. In addition, a Chamber may seek the views of other victims, as appropriate. Subsection 4 Reparations to victims Rule 94 Procedure upon request 1. A victim’s request for reparations under article 75 shall be made in writing and filed with the Registrar. It shall contain the following particulars: (a) The identity and address of the claimant; (b) A description of the injury, loss or harm; (c) The location and date of the incident and, to the extent possible, the identity of the person or persons the victim believes to be responsible for the injury, loss or harm; (d) Where restitution of assets, property or other tangible items is sought, a description of them; (e) Claims for compensation; (f) Claims for rehabilitation and other forms of remedy; (g) To the extent possible, any relevant supporting documentation, including names and addresses of witnesses.

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2. At commencement of the trial and subject to any protective measures, the Court shall ask the Registrar to provide notification of the request to the person or persons named in the request or identified in the charges and, to the extent possible, to any interested persons or any interested States. Those notified shall file with the Registry any representation made under article 75, paragraph 3. Rule 95 Procedure on the motion of the Court 1. In cases where the Court intends to proceed on its own motion pursuant to article 75, paragraph 1, it shall ask the Registrar to provide notification of its intention to the person or persons against whom the Court is considering making a determination, and, to the extent possible, to victims, interested persons and interested States. Those notified shall file with the Registry any representation made under article 75, paragraph 3. 2. If, as a result of notification under sub-rule 1: (a) A victim makes a request for reparations, that request will be determined as if it had been brought under rule 94; (b) A victim requests that the Court does not make an order for reparations, the Court shall not proceed to make an individual order in respect of that victim. Rule 96 Publication of reparation proceedings 1. Without prejudice to any other rules on notification of proceedings, the Registrar shall, insofar as practicable, notify the victims or their legal representatives and the person or persons concerned. The Registrar shall also, having regard to any information provided by the Prosecutor, take all the necessary measures to give adequate publicity of the reparation proceedings before the Court, to the extent possible, to other victims, interested persons and interested States. 2. In taking the measures described in sub-rule 1, the Court may seek, in accordance with Part 9, the cooperation of relevant States Parties, and seek the assistance of intergovernmental organizations in order to give publicity, as widely as possible and by all possible means, to the reparation proceedings before the Court. Rule 97 Assessment of reparations 1. Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both. 2. At the request of victims or their legal representatives, or at the request of the convicted person, or on its own motion, the Court may appoint appropriate experts to assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims and to suggest various options concerning the appropriate types and modalities of reparations. The Court shall invite, as appropriate, victims or their legal representatives, the convicted person as well as

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interested persons and interested States to make observations on the reports of the experts. 3. In all cases, the Court shall respect the rights of victims and the convicted person. Rule 98 Trust Fund 1. Individual awards for reparations shall be made directly against a convicted person. 2. The Court may order that an award for reparations against a convicted person be deposited with the Trust Fund where at the time of making the order it is impossible or impracticable to make individual awards directly to each victim. The award for reparations thus deposited in the Trust Fund shall be separated from other resources of the Trust Fund and shall be forwarded to each victim as soon as possible. 3. The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate. 4. Following consultations with interested States and the Trust Fund, the Court may order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organization approved by the Trust Fund. 5. Other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79. Rule 99 Cooperation and protective measures for the purpose of forfeiture under articles 57, paragraph 3 (e), and 75, paragraph 4 1. The Pre-Trial Chamber, pursuant to article 57, paragraph 3 (e), or the Trial Chamber, pursuant to article 75, paragraph 4, may, on its own motion or on the application of the Prosecutor or at the request of the victims or their legal representatives who have made a request for reparations or who have given a written undertaking to do so, determine whether measures should be requested. 2. Notice is not required unless the Court determines, in the particular circumstances of the case, that notification could not jeopardize the effectiveness of the measures requested. In the latter case, the Registrar shall provide notification of the proceedings to the person against whom a request is made and so far as is possible to any interested persons or interested States. 3. If an order is made without prior notification, the relevant Chamber shall request the Registrar, as soon as is consistent with the effectiveness of the measures requested, to notify those against whom a request is made and, to the extent possible, to any interested persons or any interested States and invite them to make observations as to whether the order should be revoked or otherwise modified.

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4. The Court may make orders as to the timing and conduct of any proceedings necessary to determine these issues. Section IV Miscellaneous provisions Rule 100 Place of the proceedings 1. In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State. 2. An application or recommendation changing the place where the Court sits may be filed at any time after the initiation of an investigation, either by the Prosecutor, the defence or by a majority of the judges of the Court. Such an application or recommendation shall be addressed to the Presidency. It shall be made in writing and specify in which State the Court would sit. The Presidency shall satisfy itself of the views of the relevant Chamber. 3. The Presidency shall consult the State where the Court intends to sit. If that State agrees that the Court can sit in that State, then the decision to sit in a State other than the host State shall be taken by the judges, in plenary session, by a twothirds majority. Rule 101 Time limits 1. In making any order setting time limits regarding the conduct of any proceedings, the Court shall have regard to the need to facilitate fair and expeditious proceedings, bearing in mind in particular the rights of the defence and the victims. 2. Taking into account the rights of the accused, in particular under article 67, paragraph (1) (c), all those participating in the proceedings to whom any order is directed shall endeavour to act as expeditiously as possible, within the time limit ordered by the Court. Rule 102 Communications other than in writing Where a person is unable, due to a disability or illiteracy, to make a written request, application, observation or other communication to the Court, the person may make such request, application, observation or communication in audio, video or other electronic form. Rule 103 Amicus curiae and other forms of submission 1. At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate.

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2. The Prosecutor and the defence shall have the opportunity to respond to the observations submitted under sub-rule 1. 3. A written observation submitted under sub-rule 1 shall be filed with the Registrar, who shall provide copies to the Prosecutor and the defence. The Chamber shall determine what time limits shall apply to the filing of such observations. Chapter 5 Investigation and prosecution Section I Decision of the Prosecutor regarding the initiation of an investigation under article 53, paragraphs 1 and 2 Rule 104 Evaluation of information by the Prosecutor 1. In acting pursuant to article 53, paragraph 1, the Prosecutor shall, in evaluating the information made available to him or her, analyse the seriousness of the information received. 2. For the purposes of sub-rule 1, the Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental and nongovernmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. The procedure set out in rule 47 shall apply to the receiving of such testimony. Rule 105 Notification of a decision by the Prosecutor not to initiate an investigation 1. When the Prosecutor decides not to initiate an investigation under article 53, paragraph 1, he or she shall promptly inform in writing the State or States that referred a situation under article 14, or the Security Council in respect of a situation covered by article 13, paragraph (b). 2. When the Prosecutor decides not to submit to the Pre-Trial Chamber a request for authorization of an investigation, rule 49 shall apply. 3. The notification referred to in sub-rule 1 shall contain the conclusion of the Prosecutor and, having regard to article 68, paragraph 1, the reasons for the conclusion. 4. In case the Prosecutor decides not to investigate solely on the basis of article 53, paragraph 1 (c), he or she shall inform in writing the Pre-Trial Chamber promptly after making that decision. 5. The notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion.

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Rule 106 Notification of a decision by the Prosecutor not to prosecute 1. When the Prosecutor decides that there is not a sufficient basis for prosecution under article 53, paragraph 2, he or she shall promptly inform in writing the Pre-Trial Chamber, together with the State or States that referred a situation under article 14, or the Security Council in respect of a situation covered by article 13, paragraph (b). 2. The notifications referred to in sub-rule 1 shall contain the conclusion of the Prosecutor and, having regard to article 68, paragraph 1, the reasons for the conclusion. Section II Procedure under article 53, paragraph 3 Rule 107 Request for review under article 53, paragraph 3 (a) 1. A request under article 53, paragraph 3, for a review of a decision by the Prosecutor not to initiate an investigation or not to prosecute shall be made in writing, and be supported with reasons, within 90 days following the notification given under rule 105 or 106. 2. The Pre-Trial Chamber may request the Prosecutor to transmit the information or documents in his or her possession, or summaries thereof, that the Chamber considers necessary for the conduct of the review. 3. The Pre-Trial Chamber shall take such measures as are necessary under articles 54, 72 and 93 to protect the information and documents referred to in subrule 2 and, under article 68, paragraph 5, to protect the safety of witnesses and victims and members of their families. 4. When a State or the Security Council makes a request referred to in sub-rule 1, the Pre-Trial Chamber may seek further observations from them. 5. Where an issue of jurisdiction or admissibility of the case is raised, rule 59 shall apply. Rule 108 Decision of the Pre-Trial Chamber Under article 53,paragraph 3 (a) 1. A decision of the Pre-Trial Chamber under article 53, paragraph 3 (a), must be concurred in by a majority of its judges and shall contain reasons. It shall be communicated to all those who participated in the review. 2. Where the Pre-Trial Chamber requests the Prosecutor to review, in whole or in part, his or her decision not to initiate an investigation or not to prosecute, the Prosecutor shall reconsider that decision as soon as possible. 3. Once the Prosecutor has taken a final decision, he or she shall notify the PreTrial Chamber in writing. This notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion. It shall be communicated to all those who participated in the review.

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Rule 109 Review by the Pre-Trial Chamber Under article 53, paragraph 3 (b) 1. Within 180 days following a notification given under rule 105 or 106, the Pre-Trial Chamber may on its own initiative decide to review a decision of the Prosecutor taken solely under article 53, paragraph 1 (c) or 2 (c). The Pre-Trial Chamber shall inform the Prosecutor of its intention to review his or her decision and shall establish a time limit within which the Prosecutor may submit observations and other material. 2. In cases where a request has been submitted to the Pre-Trial Chamber by a State or by the Security Council, they shall also be informed and may submit observations in accordance with rule 107. Rule 110 Decision by the Pre-Trial Chamber Under article 53, paragraph 3 (b) 1. A decision by the Pre-Trial Chamber to confirm or not to confirm a decision taken by the Prosecutor solely under article 53, paragraph 1 (c) or 2 (c), must be concurred in by a majority of its judges and shall contain reasons. It shall be communicated to all those who participated in the review. 2. When the Pre-Trial Chamber does not confirm the decision by the Prosecutor referred to in sub-rule 1, he or she shall proceed with the investigation or prosecution. Section III Collection of evidence Rule 111 Record of questioning in general 1. A record shall be made of formal statements made by any person who is questioned in connection with an investigation or with proceedings. The record shall be signed by the person who records and conducts the questioning and by the person who is questioned and his or her counsel, if present, and, where applicable, the Prosecutor or the judge who is present. The record shall note the date, time and place of, and all persons present during the questioning. It shall also be noted when someone has not signed the record as well as the reasons therefore. 2. When the Prosecutor or national authorities question a person, due regard shall be given to article 55. When a person is informed of his or her rights under article 55, paragraph 2, the fact that this information has been provided shall be noted in the record. Rule 112 Recording of questioning in particular cases 1. Whenever the Prosecutor questions a person to whom article 55, paragraph 2, applies, or for whom a warrant of arrest or a summons to appear has been issued

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under article 58, paragraph 7, the questioning shall be audio- or video-recorded, in accordance with the following procedure: (a) The person questioned shall be informed, in a language he or she fully understands and speaks, that the questioning is to be audio- or video-recorded, and that the person concerned may object if he or she so wishes. The fact that this information has been provided and the response given by the person concerned shall be noted in the record. The person may, before replying, speak in private with his or her counsel, if present. If the person questioned refuses to be audio- or video-recorded, the procedure in rule 111 shall be followed; (b) A waiver of the right to be questioned in the presence of counsel shall be recorded in writing and, if possible, be audio- or video-recorded; (c) In the event of an interruption in the course of questioning, the fact and the time of the interruption shall be recorded before the audio- or video-recording ends as well as the time of resumption of the questioning; (d) At the conclusion of the questioning, the person questioned shall be offered the opportunity to clarify anything he or she has said and to add anything he or she may wish. The time of conclusion of the questioning shall be noted; (e) The tape shall be transcribed as soon as practicable after the conclusion of the questioning and a copy of the transcript supplied to the person questioned together with a copy of the recorded tape or, if multiple recording apparatus was used, one of the original recorded tapes; (f) The original tape or one of the original tapes shall be sealed in the presence of the person questioned and his or her counsel, if present, under the signature of the Prosecutor and the person questioned and the counsel, if present. 2. The Prosecutor shall make every reasonable effort to record the questioning in accordance with sub-rule 1. As an exception, a person may be questioned without the questioning being audio- or video-recorded where the circumstances prevent such recording taking place. In this case, the reasons for not recording the questioning shall be stated in writing and the procedure in rule 111 shall be followed. 3. When, pursuant to sub-rule 1 (a) or 2, the questioning is not audio- or videorecorded, the person questioned shall be provided with a copy of his or her statement. 4. The Prosecutor may choose to follow the procedure in this rule when questioning other persons than those mentioned in sub-rule 1, in particular where the use of such procedures could assist in reducing any subsequent traumatisation of a victim of sexual or gender violence, a child or a person with disabilities in providing their evidence. The Prosecutor may make an application to the relevant Chamber. 5. The Pre-Trial Chamber may, in pursuance of article 56, paragraph 2, order that the procedure in this rule be applied to the questioning of any person.

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Rule 113 Collection of information regarding the State of health of the person concerned 1. The Pre-Trial Chamber may, on its own initiative or at the request of the Prosecutor, the person concerned or his or her counsel, order that a person having the rights in article 55, paragraph 2, be given a medical, psychological or psychiatric examination. In making its determination, the Pre-Trial Chamber shall consider the nature and purpose of the examination and whether the person consents to the examination. 2. The Pre-Trial Chamber shall appoint one or more experts from the list of experts approved by the Registrar, or an expert approved by the Pre-Trial Chamber at the request of a party. Rule 114 Unique investigative opportunity under article 56 1. Upon being advised by the Prosecutor in accordance with article 56, paragraph 1 (a), the Pre-Trial Chamber shall hold consultations without delay with the Prosecutor and, subject to the provisions of article 56, paragraph 1 (c), with the person who has been arrested or who has appeared before the Court pursuant to summons and his or her counsel, in order to determine the measures to be taken and the modalities of their implementation, which may include measures to ensure that the right to communicate under article 67, paragraph 1 (b), is protected. 2. A decision of the Pre-Trial Chamber to take measures pursuant to article 56, paragraph 3, must be concurred in by a majority of its judges after consultations with the Prosecutor. During the consultations, the Prosecutor may advise the PreTrial Chamber that intended measures could jeopardize the proper conduct of the investigation. Rule 115 Collection of evidence in the territory of a State Party under article 57, paragraph 3 (d) 1. Where the Prosecutor considers that article 57, paragraph 3 (d), applies, the Prosecutor may submit a written request to the Pre-Trial Chamber for authorization to take certain measures in the territory of the State Party in question. After a submission of such a request, the Pre-Trial Chamber shall, whenever possible, inform and invite views from the State Party concerned. 2. In arriving at its determination as to whether the request is well founded, the Pre-Trial Chamber shall take into account any views expressed by the State Party concerned. The Pre-Trial Chamber may, on its own initiative or at the request of the Prosecutor or the State Party concerned, decide to hold a hearing. 3. An authorization under article 57, paragraph 3 (d), shall be issued in the form of an order and shall state the reasons, based on the criteria set forth in that paragraph. The order may specify procedures to be followed in carrying out such collection of evidence.

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Rule 116 Collection of evidence at the request of the Defence under article 57, paragraph 3 (b) 1. The Pre-Trial Chamber shall issue an order or seek cooperation under article 57, paragraph 3 (b), where it is satisfied: (a) That such an order would facilitate the collection of evidence that may be material to the proper determination of the issues being adjudicated, or to the proper preparation of the person’s defence; and (b) In a case of cooperation under Part 9, that sufficient information to comply with article 96, paragraph 2, has been provided. 2. Before taking a decision whether to issue an order or seek cooperation under article 57, paragraph 3 (b), the Pre-Trial Chamber may seek the views of the prosecutor. Section IV Procedures in respect of restriction and deprivation of liberty Rule 117 Detention in the custodial State 1. The Court shall take measures to ensure that it is informed of the arrest of a person in response to a request made by the Court under article 89 or 92. Once so informed, the Court shall ensure that the person receives a copy of the arrest warrant issued by the Pre-Trial Chamber under article 58 and any relevant provisions of the Statute. The documents shall be made available in a language that the person fully understands and speaks. 2. At any time after arrest, the person may make a request to the Pre-Trial Chamber for the appointment of counsel to assist with proceedings before the Court and the Pre-Trial Chamber shall take a decision on such request. 3. A challenge as to whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b), shall be made in writing to the Pre-Trial Chamber. The application shall set out the basis for the challenge. After having obtained the views of the Prosecutor, the Pre-Trial Chamber shall decide on the application without delay. 4. When the competent authority of the custodial State notifies the Pre-Trial Chamber that a request for release has been made by the person arrested, in accordance with article 59, paragraph 5, the Pre-Trial Chamber shall provide its recommendations within any time limit set by the custodial State. 5. When the Pre-Trial Chamber is informed that the person has been granted interim release by the competent authority of the custodial State, the Pre-Trial Chamber shall inform the custodial State how and when it would like to receive periodic reports on the status of the interim release.

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Rule 118 Pre-trial detention at the seat of the Court 1. If the person surrendered to the Court makes an initial request for interim release pending trial, either upon first appearance in accordance with rule 121 or subsequently, the Pre-Trial Chamber shall decide upon the request without delay, after seeking the views of the Prosecutor. 2. The Pre-Trial Chamber shall review its ruling on the release or detention of a person in accordance with article 60, paragraph 3, at least every 120 days and may do so at any time on the request of the person or the Prosecutor. 3. After the first appearance, a request for interim release must be made in writing. The Prosecutor shall be given notice of such a request. The Pre-Trial Chamber shall decide after having received observations in writing of the Prosecutor and the detained person. The Pre-Trial Chamber may decide to hold a hearing, at the request of the Prosecutor or the detained person or on its own initiative. A hearing must be held at least once every year. Rule 119 Conditional release 1. The Pre-Trial Chamber may set one or more conditions restricting liberty, including the following: (a) The person must not travel beyond territorial limits set by the Pre-Trial Chamber without the explicit agreement of the Chamber; (b) The person must not go to certain places or associate with certain persons as specified by the Pre-Trial Chamber; (c) The person must not contact directly or indirectly victims or witnesses; (d) The person must not engage in certain professional activities; (e) The person must reside at a particular address as specified by the Pre-Trial Chamber; (f) The person must respond when summoned by an authority or qualified person designated by the Pre-Trial Chamber; (g) The person must post bond or provide real or personal security or surety, for which the amount and the schedule and mode of payment shall be determined by the Pre-Trial Chamber; (h) The person must supply the Registrar with all identity documents, particularly his or her passport. 2. At the request of the person concerned or the Prosecutor or on its own initiative, the Pre-Trial Chamber may at any time decide to amend the conditions set pursuant to sub-rule 1. 3. Before imposing or amending any conditions restricting liberty, the Pre-Trial Chamber shall seek the views of the Prosecutor, the person concerned, any relevant State and victims that have communicated with the Court in that case and whom the Chamber considers could be at risk as a result of a release or conditions imposed. 4. If the Pre-Trial Chamber is convinced that the person concerned has failed to comply with one or more of the obligations imposed, it may, on such basis, at the

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request of the Prosecutor or on its own initiative, issue a warrant of arrest in respect of the person. 5. When the Pre-Trial Chamber issues a summons to appear pursuant to article 58, paragraph 7, and intends to set conditions restricting liberty, it shall ascertain the relevant provisions of the national law of the State receiving the summons. In a manner that is in keeping with the national law of the State receiving the summons, the Pre-Trial Chamber shall proceed in accordance with sub-rules 1, 2 and 3. If the Pre-Trial Chamber receives information that the person concerned has failed to comply with conditions imposed, it shall proceed in accordance with sub-rule 4. Rule 120 Instruments of restraint Personal instruments of restraint shall not be used except as a precaution against escape, for the protection of the person in the custody of the Court and others or for other security reasons, and shall be removed when the person appears before a Chamber. Section V Proceedings with regard to the confirmation of charges under article 61 Rule 121 Proceedings before the confirmation hearing 1. A person subject to a warrant of arrest or a summons to appear under article 58 shall appear before the Pre-Trial Chamber, in the presence of the Prosecutor, promptly upon arriving at the Court. Subject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67. At this first appearance, the Pre-Trial Chamber shall set the date on which it intends to hold a hearing to confirm the charges. It shall ensure that this date, and any postponements under sub-rule 7, are made public. 2. In accordance with article 61, paragraph 3, the Pre-Trial Chamber shall take the necessary decisions regarding disclosure between the Prosecutor and the person in respect of whom a warrant of arrest or a summons to appear has been issued. During disclosure: (a) The person concerned may be assisted or represented by the counsel of his or her choice or by a counsel assigned to him or her; (b) The Pre-Trial Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions. For each case, a judge of the Pre-Trial Chamber shall be appointed to organize such status conferences, on his or her own motion, or at the request of the Prosecutor or the person; (c) All evidence disclosed between the Prosecutor and the person for the purposes of the confirmation hearing shall be communicated to the Pre-Trial Chamber. 3. The Prosecutor shall provide to the Pre-Trial Chamber and the person, no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing.

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4. Where the Prosecutor intends to amend the charges pursuant to article 61, paragraph 4, he or she shall notify the Pre-Trial Chamber and the person no later than 15 days before the date of the hearing of the amended charges together with a list of evidence that the Prosecutor intends to bring in support of those charges at the hearing. 5. Where the Prosecutor intends to present new evidence at the hearing, he or she shall provide the Pre-Trial Chamber and the person with a list of that evidence no later than 15 days before the date of the hearing. 6. If the person intends to present evidence under article 61, paragraph 6, he or she shall provide a list of that evidence to the Pre-Trial Chamber no later than 15 days before the date of the hearing. The Pre-Trial Chamber shall transmit the list to the Prosecutor without delay. The person shall provide a list of evidence that he or she intends to present in response to any amended charges or a new list of evidence provided by the Prosecutor. 7. The Prosecutor or the person may ask the Pre-Trial Chamber to postpone the date of the confirmation hearing. The Pre-Trial Chamber may also, on its own motion, decide to postpone the hearing. 8. The Pre-Trial Chamber shall not take into consideration charges and evidence presented after the time limit, or any extension thereof, has expired. 9. The Prosecutor and the person may lodge written submissions with the PreTrial Chamber, on points of fact and on law, including grounds for excluding criminal responsibility set forth in article 31, paragraph 1, no later than three days before the date of the hearing. A copy of these submissions shall be transmitted immediately to the Prosecutor or the person, as the case may be. 10. The Registry shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the person and victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91. Rule 122 Proceedings at the confirmation hearing in the presence of the person charged 1. The Presiding Judge of the Pre-Trial Chamber shall ask the officer of the Registry assisting the Chamber to read out the charges as presented by the Prosecutor. The Presiding Judge shall determine how the hearing is to be conducted and, in particular, may establish the order and the conditions under which he or she intends the evidence contained in the record of the proceedings to be presented. 2. If a question or challenge concerning jurisdiction or admissibility arises, rule 58 applies. 3. Before hearing the matter on the merits, the Presiding Judge of the Pre-Trial Chamber shall ask the Prosecutor and the person whether they intend to raise objections or make observations concerning an issue related to the proper conduct of the proceedings prior to the confirmation hearing.

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4. At no subsequent point may the objections and observations made under sub-rule 3 be raised or made again in the confirmation or trial proceedings. 5. If objections or observations referred to in sub-rule 3 are presented, the Presiding Judge of the Pre-Trial Chamber shall invite those referred to in sub-rule 3 to present their arguments, in the order which he or she shall establish. The person shall have the right to reply. 6. If the objections raised or observations made are those referred to in sub-rule 3, the Pre-Trial Chamber shall decide whether to join the issue raised with the examination of the charges and the evidence, or to separate them, in which case it shall adjourn the confirmation hearing and render a decision on the issues raised. 7. During the hearing on the merits, the Prosecutor and the person shall present their arguments in accordance with article 61, paragraphs 5 and 6. 8. The Pre-Trial Chamber shall permit the Prosecutor and the person, in that order, to make final observations. 9. Subject to the provisions of article 61, article 69 shall apply mutatis mutandis at the confirmation hearing. Rule 123 Measures to ensure the presence of the person concerned at the confirmation hearing 1. When a warrant of arrest or summons to appear in accordance with article 58, paragraph 7, has been issued for a person by the Pre-Trial Chamber and the person is arrested or served with the summons, the Pre-Trial Chamber shall ensure that the person is notified of the provisions of article 61, paragraph 2. 2. The Pre-Trial Chamber may hold consultations with the Prosecutor, at the request of the latter or on its own initiative, in order to determine whether there is cause to hold a hearing on confirmation of charges under the conditions set forth in article 61, paragraph 2 (b). When the person concerned has a counsel known to the Court, the consultations shall be held in the presence of the counsel unless the PreTrial Chamber decides otherwise. 3. The Pre-Trial Chamber shall ensure that a warrant of arrest for the person concerned has been issued and, if the warrant of arrest has not been executed within a reasonable period of time after the issuance of the warrant, that all reasonable measures have been taken to locate and arrest the person. Rule 124 Waiver of the right to be present at the confirmation hearing 1. If the person concerned is available to the Court but wishes to waive the right to be present at the hearing on confirmation of charges, he or she shall submit a written request to the Pre-Trial Chamber, which may then hold consultations with the Prosecutor and the person concerned, assisted or represented by his or her counsel. 2. A confirmation hearing pursuant to article 61, paragraph 2 (a), shall only be held when the Pre-Trial Chamber is satisfied that the person concerned understands the right to be present at the hearing and the consequences of waiving this right.

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3. The Pre-Trial Chamber may authorize and make provision for the person to observe the hearing from outside the courtroom through the use of communications technology, if required. 4. The waiving of the right to be present at the hearing does not prevent the Pre-Trial Chamber from receiving written observations on issues before the Chamber from the person concerned. Rule 125 Decision to hold the confirmation hearing in the absence of the person concerned 1. After holding consultations under rules 123 and 124, the Pre-Trial Chamber shall decide whether there is cause to hold a hearing on confirmation of charges in the absence of the person concerned, and in that case, whether the person may be represented by counsel. The Pre-Trial Chamber shall, when appropriate, set a date for the hearing and make the date public. 2. The decision of the Pre-Trial Chamber shall be notified to the Prosecutor and, if possible, to the person concerned or his or her counsel. 3. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is not available to the Court, the confirmation of charges may not take place until the person is available to the Court. The Pre-Trial Chamber may review its decision at any time, at the request of the Prosecutor or on its own initiative. 4. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is available to the Court, it shall order the person to appear. Rule 126 Confirmation hearing in the absence of the person concerned 1. The provisions of rules 121 and 122 shall apply mutatis mutandis to the preparation for and holding of a hearing on confirmation of charges in the absence of the person concerned. 2. If the Pre-Trial Chamber has determined that the person concerned shall be represented by counsel, the counsel shall have the opportunity to exercise the rights of that person. 3. When the person who has fled is subsequently arrested and the Court has confirmed the charges upon which the Prosecutor intends to pursue the trial, the person charged shall be committed to the Trial Chamber established under article 61, paragraph 11. The person charged may request in writing that the Trial Chamber refer issues to the Pre-Trial Chamber that are necessary for the Chamber’s effective and fair functioning in accordance with article 64, paragraph 4.

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Section VI Closure of the pre-trial phase Rule 127 Procedure in the event of different decisions on multiple charges If the Pre-Trial Chamber is ready to confirm some of the charges but adjourns the hearing on other charges under article 61, paragraph 7 (c), it may decide that the committal of the person concerned to the Trial Chamber on the charges that it is ready to confirm shall be deferred pending the continuation of the hearing. The Pre-Trial Chamber may then establish a time limit within which the Prosecutor may proceed in accordance with article 61, paragraph 7 (c) (i) or (ii). Rule 128 Amendment of the charges 1. If the Prosecutor seeks to amend charges already confirmed before the trial has begun, in accordance with article 61, the Prosecutor shall make a written request to the Pre-Trial Chamber, and that Chamber shall so notify the accused. 2. Before deciding whether to authorize the amendment, the Pre-Trial Chamber may request the accused and the Prosecutor to submit written observations on certain issues of fact or law. 3. If the Pre-Trial Chamber determines that the amendments proposed by the Prosecutor constitute additional or more serious charges, it shall proceed, as appropriate, in accordance with rules 121 and 122 or rules 123 to 126. Rule 129 Notification of the decision on the confirmation of charges The decision of the Pre-Trial Chamber on the confirmation of charges and the committal of the accused to the Trial Chamber shall be notified, if possible, to the Prosecutor, the person concerned and his or her counsel. Such decision and the record of the proceedings of the Pre-Trial Chamber shall be transmitted to the Presidency. Rule 130 Constitution of the Trial Chamber When the Presidency constitutes a Trial Chamber and refers the case to it, the Presidency shall transmit the decision of the Pre-Trial Chamber and the record of the proceedings to the Trial Chamber. The Presidency may also refer the case to a previously constituted Trial Chamber. Chapter 6 Trial procedure Rule 131 Record of the proceedings transmitted by the Pre-Trial Chamber 1. The Registrar shall maintain the record of the proceedings transmitted by the Pre-Trial Chamber, pursuant to rule 121, sub-rule 10.

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2. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the defence, the representatives of States when they participate in the proceedings, and the victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91. Rule 132 Status conferences 1. Promptly after it is constituted, the Trial Chamber shall hold a status conference in order to set the date of the trial. The Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may postpone the date of the trial. The Trial Chamber shall notify the trial date to all those participating in the proceedings. The Trial Chamber shall ensure that this date and any postponements are made public. 2. In order to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber may confer with the parties by holding status conferences as necessary. Rule 133 Motions challenging admissibility or jurisdiction Challenges to the jurisdiction of the Court or the admissibility of the case at the commencement of the trial, or subsequently with the leave of the Court, shall be dealt with by the Presiding Judge and the Trial Chamber in accordance with rule 58. Rule 134 Motions relating to the trial proceedings 1. Prior to the commencement of the trial, the Trial Chamber on its own motion, or at the request of the Prosecutor or the defence, may rule on any issue concerning the conduct of the proceedings. Any request from the Prosecutor or the defence shall be in writing and, unless the request is for an ex parte procedure, served on the other party. For all requests other than those submitted for an ex parte procedure, the other party shall have the opportunity to file a response. 2. At the commencement of the trial, the Trial Chamber shall ask the Prosecutor and the defence whether they have any objections or observations concerning the conduct of the proceedings which have arisen since the confirmation hearings. Such objections or observations may not be raised or made again on a subsequent occasion in the trial proceedings, without leave of the Trial Chamber in this proceeding. 3. After the commencement of the trial, the Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may rule on issues that arise during the course of the trial.

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Rule 135 Medical examination of the accused 1. The Trial Chamber may, for the purpose of discharging its obligations under article 64, paragraph 8 (a), or for any other reasons, or at the request of a party, order a medical, psychiatric or psychological examination of the accused, under the conditions set forth in rule 113. 2. The Trial Chamber shall place its reasons for any such order on the record. 3. The Trial Chamber shall appoint one or more experts from the list of experts approved by the Registrar, or an expert approved by the Trial Chamber at the request of a party. 4. Where the Trial Chamber is satisfied that the accused is unfit to stand trial, it shall order that the trial be adjourned. The Trial Chamber may, on its own motion or at the request of the prosecution or the defence, review the case of the accused. In any event, the case shall be reviewed every 120 days unless there are reasons to do otherwise. If necessary, the Trial Chamber may order further examinations of the accused. When the Trial Chamber is satisfied that the accused has become fit to stand trial, it shall proceed in accordance with rule 132. Rule 136 Joint and separate trials 1. Persons accused jointly shall be tried together unless the Trial Chamber, on its own motion or at the request of the Prosecutor or the defence, orders that separate trials are necessary, in order to avoid serious prejudice to the accused, to protect the interests of justice or because a person jointly accused has made an admission of guilt and can be proceeded against in accordance with article 65, paragraph 2. 2. In joint trials, each accused shall be accorded the same rights as if such accused were being tried separately. Rule 137 Record of the trial proceedings 1. In accordance with article 64, paragraph 10, the Registrar shall take measures to make, and preserve, a full and accurate record of all proceedings, including transcripts, audio- and video-recordings and other means of capturing sound or image. 2. A Trial Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist. 3. The Trial Chamber may authorize persons other than the Registrar to take photographs, audio- and video-recordings and other means of capturing the sound or image of the trial. Rule 138 Custody of evidence The Registrar shall retain and preserve, as necessary, all the evidence and other materials offered during the hearing, subject to any order of the Trial Chamber.

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Rule 139 Decision on admission of guilt 1. After having proceeded in accordance with article 65, paragraph 1, the Trial Chamber, in order to decide whether to proceed in accordance with article 65, paragraph 4, may invite the views of the Prosecutor and the defence. 2. The Trial Chamber shall then make its decision on the admission of guilt and shall give reasons for this decision, which shall be placed on the record. Rule 140 Directions for the conduct of the proceedings and testimony 1. If the Presiding Judge does not give directions under article 64, paragraph 8, the Prosecutor and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber. If no agreement can be reached, the Presiding Judge shall issue directions. 2. In all cases, subject to article 64, paragraphs 8 (b) and 9, article 69, paragraph 4, and rule 88, sub-rule 5, a witness may be questioned as follows: (a) A party that submits evidence in accordance with article 69, paragraph 3, by way of a witness, has the right to question that witness; (b) The prosecution and the defence have the right to question that witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters; (c) The Trial Chamber has the right to question a witness before or after a witness is questioned by a participant referred to in sub-rules 2 (a) or (b); (d) The defence shall have the right to be the last to examine a witness. 3. Unless otherwise ordered by the Trial Chamber, a witness other than an expert, or an investigator if he or she has not yet testified, shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying. When a witness testifies after hearing the testimony of others, this fact shall be noted in the record and considered by the Trial Chamber when evaluating the evidence. Rule 141 Closure of evidence and closing statements 1. The Presiding Judge shall declare when the submission of evidence is closed. 2. The Presiding Judge shall invite the Prosecutor and the defence to make their closing statements. The defence shall always have the opportunity to speak last. Rule 142 Deliberations 1. After the closing statements, the Trial Chamber shall retire to deliberate, in camera. The Trial Chamber shall inform all those who participated in the proceedings of the date on which the Trial Chamber will pronounce its decision.

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The pronouncement shall be made within a reasonable period of time after the Trial Chamber has retired to deliberate. 2. When there is more than one charge, the Trial Chamber shall decide separately on each charge. When there is more than one accused, the Trial Chamber shall decide separately on the charges against each accused. Rule 143 Additional hearings on matters related to sentence or reparations Pursuant to article 76, paragraphs 2 and 3, for the purpose of holding a further hearing on matters related to sentence and, if applicable, reparations, the Presiding Judge shall set the date of the further hearing. This hearing can be postponed, in exceptional circumstances, by the Trial Chamber, on its own motion or at the request of the Prosecutor, the defence or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91 and, in respect of reparations hearings, those victims who have made a request under rule 94. Rule 144 Delivery of the decisions of the Trial Chamber 1. Decisions of the Trial Chamber concerning admissibility of a case, the jurisdiction of the Court, criminal responsibility of the accused, sentence and reparations shall be pronounced in public and, wherever possible, in the presence of the accused, the Prosecutor, the victims or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91, and the representatives of the States which have participated in the proceedings. 2. Copies of all the above-mentioned decisions shall be provided as soon as possible to: (a) All those who participated in the proceedings, in a working language of the Court; (b) The accused, in a language he or she fully understands or speaks, if necessary to meet the requirements of fairness under article 67, paragraph 1 (f). Chapter 7 Penalties Rule 145 Determination of sentence 1. In its determination of the sentence pursuant to article 78, paragraph 1, the Court shall: (a) Bear in mind that the totality of any sentence of imprisonment and fine, as the case may be, imposed under article 77 must reflect the culpability of the convicted person; (b) Balance all the relevant factors, including any mitigating and aggravating factors and consider the circumstances both of the convicted person and of the crime; (c) In addition to the factors mentioned in article 78, paragraph 1, give consideration, inter alia, to the extent of the damage caused, in particular the harm

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caused to the victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person. 2. In addition to the factors mentioned above, the Court shall take into account, as appropriate: (a) Mitigating circumstances such as: (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress; (ii) The convicted person’s conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court; (b) As aggravating circumstances: (i) Any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature; (ii) Abuse of power or official capacity; (iii) Commission of the crime where the victim is particularly defenceless; (iv) Commission of the crime with particular cruelty or where there were multiple victims; (v) Commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3; (vi) Other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned. 3. Life imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, as evidenced by the existence of one or more aggravating circumstances. Rule 146 Imposition of fines under article 77 1. In determining whether to order a fine under article 77, paragraph 2 (a), and in fixing the amount of the fine, the Court shall determine whether imprisonment is a sufficient penalty. The Court shall give due consideration to the financial capacity of the convicted person, including any orders for forfeiture in accordance with article 77, paragraph 2 (b), and, as appropriate, any orders for reparation in accordance with article 75. The Court shall take into account, in addition to the factors referred to in rule 145, whether and to what degree the crime was motivated by personal financial gain. 2. A fine imposed under article 77, paragraph 2 (a), shall be set at an appropriate level. To this end, the Court shall, in addition to the factors referred to above, in particular take into consideration the damage and injuries caused as well as the proportionate gains derived from the crime by the perpetrator. Under no circumstances may the total amount exceed 75 per cent of the value of the convicted person’s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants.

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3. In imposing a fine, the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period. 4. In imposing a fine, the Court may, as an option, calculate it according to a system of daily fines. In such cases, the minimum duration shall be 30 days and the maximum duration five years. The Court shall decide the total amount in accordance with sub-rules 1 and 2. It shall determine the amount of daily payment in the light of the individual circumstances of the convicted person, including the financial needs of his or her dependants. 5. If the convicted person does not pay the fine imposed in accordance with the conditions set above, appropriate measures may be taken by the Court pursuant to rules 217 to 222 and in accordance with article 109. Where, in cases of continued wilful non-payment, the Presidency, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort extend the term of imprisonment for a period not to exceed a quarter of such term or five years, whichever is less. In the determination of such period of extension, the Presidency shall take into account the amount of the fine, imposed and paid. Any such extension shall not apply in the case of life imprisonment. The extension may not lead to a total period of imprisonment in excess of 30 years. 6. In order to determine whether to order an extension and the period involved, the Presidency shall sit in camera for the purpose of obtaining the views of the sentenced person and the Prosecutor. The sentenced person shall have the right to be assisted by counsel. 7. In imposing a fine, the Court shall warn the convicted person that failure to pay the fine in accordance with the conditions set out above may result in an extension of the period of imprisonment as described in this rule. Rule 147 Orders of forfeiture 1. In accordance with article 76, paragraphs 2 and 3, and rules 63, sub-rule 1, and 143, at any hearing to consider an order of forfeiture, Chamber shall hear evidence as to the identification and location of specific proceeds, property or assets which have been derived directly or indirectly from the crime. 2. If before or during the hearing, a Chamber becomes aware of any bona fide third party who appears to have an interest in relevant proceeds, property or assets, it shall give notice to that third party. 3. The Prosecutor, the convicted person and any bona fide third party with an interest in the relevant proceeds, property or assets may submit evidence relevant to the issue. 4. After considering any evidence submitted, a Chamber may issue an order of forfeiture in relation to specific proceeds, property or assets if it is satisfied that these have been derived directly or indirectly from the crime.

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Rule 148 Orders to transfer fines or forfeitures to the Trust Fund Before making an order pursuant to article 79, paragraph 2, a Chamber may request the representatives of the Fund to submit written or oral observations to it. Chapter 8 Appeal and revision Section I General provisions Rule 149 Rules governing proceedings in the Appeals Chamber Parts 5 and 6 and rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber. Section II Appeals against convictions, acquittals, Sentences and reparation orders Rule 150 Appeal 1. Subject to sub-rule 2, an appeal against a decision of conviction or acquittal under article 74, a sentence under article 76 or a reparation order under article 75 may be filed not later than 30 days from the date on which the party filing the appeal is notified of the decision, the sentence or the reparation order. 2. The Appeals Chamber may extend the time limit set out in sub-rule 1, for good cause, upon the application of the party seeking to file the appeal. 3. The appeal shall be filed with the Registrar. 4. If an appeal is not filed as set out in sub-rules 1 to 3, the decision, the sentence or the reparation order of the Trial Chamber shall become final. Rule 151 Procedure for the appeal 1. Upon the filing of an appeal under rule 150, the Registrar shall transmit the trial record to the Appeals Chamber. 2. The Registrar shall notify all parties who participated in the proceedings before the Trial Chamber that an appeal has been filed. Rule 152 Discontinuance of the appeal 1. Any party who has filed an appeal may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed.

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2. If the Prosecutor has filed an appeal on behalf of a convicted person in accordance with article 81, paragraph 1 (b), before filing any notice of discontinuance, the Prosecutor shall inform the convicted person that he or she intends to discontinue the appeal in order to give him or her the opportunity to continue the appeal proceedings. Rule 153 Judgement on appeals against reparation orders 1. The Appeals Chamber may confirm, reverse or amend a reparation order made under article 75. 2. The judgement of the Appeals Chamber shall be delivered in accordance with article 83, paragraphs 4 and 5. Section III Appeals against other decisions Rule 154 Appeals that do not require the leave of the Court 1. An appeal may be filed under article 81, paragraph 3 (c) (ii), or article 82, paragraph 1 (a) or (b), not later than five days from the date upon which the party filing the appeal is notified of the decision. 2. An appeal may be filed under article 82, paragraph 1 (c), not later than two days from the date upon which the party filing the appeal is notified of the decision. 3. Rule 150, sub-rules 3 and 4, shall apply to appeals filed under sub-rules 1 and 2 of this rule. Rule 155 Appeals that require leave of the Court 1. When a party wishes to appeal a decision under article 82, paragraph 1 (d), or article 82, paragraph 2, that party shall, within five days of being notified of that decision, make a written application to the Chamber that gave the decision, setting out the reasons for the request for leave to appeal. 2. The Chamber shall render a decision and shall notify all parties who participated in the proceedings that gave rise to the decision referred to in sub-rule 1. Rule 156 Procedure for the appeal 1. As soon as an appeal has been filed under rule 154 or as soon as leave to appeal has been granted under rule 155, the Registrar shall transmit to the Appeals Chamber the record of the proceedings of the Chamber that made the decision that is the subject of the appeal. 2. The Registrar shall give notice of the appeal to all parties who participated in the proceedings before the Chamber that gave the decision that is the subject of

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the appeal, unless they have already been notified by the Chamber under rule 155, sub-rule 2. 3. The appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing. 4. The appeal shall be heard as expeditiously as possible. 5. When filing the appeal, the party appealing may request that the appeal have suspensive effect in accordance with article 82, paragraph 3. Rule 157 Discontinuance of the appeal Any party who has filed an appeal under rule 154 or who has obtained the leave of a Chamber to appeal a decision under rule 155 may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed. Rule 158 Judgement on the appeal 1. An Appeals Chamber which considers an appeal referred to in this section may confirm, reverse or amend the decision appealed. 2. The judgement of the Appeals Chamber shall be delivered in accordance with article 83, paragraph 4. Section IV Revision of conviction or sentence Rule 159 Application for revision 1. An application for revision provided for in article 84, paragraph 1, shall be in writing and shall set out the grounds on which the revision is sought. It shall as far as possible be accompanied by supporting material. 2. The determination on whether the application is meritorious shall be taken by a majority of the judges of the Appeals Chamber and shall be supported by reasons in writing. 3. Notification of the decision shall be sent to the applicant and, as far as possible, to all the parties who participated in the proceedings related to the initial decision. Rule 160 Transfer for the purpose of revision 1. For the conduct of the hearing provided for in rule 161, the relevant Chamber shall issue its order sufficiently in advance to enable the transfer of the sentenced person to the seat of the Court, as appropriate. 2. The determination of the Court shall be communicated without delay to the State of enforcement. 3. The provisions of rule 206, sub-rule 3, shall be applicable.

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Rule 161 Determination on revision 1. On a date which it shall determine and shall communicate to the applicant and to all those having received notification under rule 159, sub-rule 3, the relevant Chamber shall hold a hearing to determine whether the conviction or sentence should be revised. 2. For the conduct of the hearing, the relevant Chamber shall exercise, mutatis mutandis, all the powers of the Trial Chamber pursuant to Part 6 and the rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers. 3. The determination on revision shall be governed by the applicable provisions of article 83, paragraph 4. Chapter 9 Offences and misconduct against the Court Section I Offences against the administration of justice under article 70 Rule 162 Exercise of jurisdiction 1. Before deciding whether to exercise jurisdiction, the Court may consult with States Parties that may have jurisdiction over the offence. 2. In making a decision whether or not to exercise jurisdiction, the Court may consider, in particular: (a) The availability and effectiveness of prosecution in a State Party; (b) The seriousness of an offence; (c) The possible joiner of charges under article 70 with charges under articles 5 to 8; (d) The need to expedite proceedings; (e) Links with an ongoing investigation or a trial before the Court; and (f) Evidentiary considerations. 3. The Court shall give favourable consideration to a request from the host State for a waiver of the power of the Court to exercise jurisdiction in cases where the host State considers such a waiver to be of particular importance. 4. If the Court decides not to exercise its jurisdiction, it may request a State Party to exercise jurisdiction pursuant to article 70, paragraph 4. Rule 163 Application of the Statute and the Rules 1. Unless otherwise provided in sub-rules 2 and 3, rule 162 and rules 164 to 169, the Statute and the Rules shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in article 70. 2. The provisions of Part 2, and any rules there under, shall not apply, with the exception of article 21.

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3. The provisions of Part 10, and any rules there under, shall not apply, with the exception of articles 103, 107, 109 and 111. Rule 164 Periods of limitation 1. If the Court exercises jurisdiction in accordance with rule 162, it shall apply the periods of limitation set forth in this rule. 2. Offences defined in article 70 shall be subject to a period of limitation of five years from the date on which the offence was committed, provided that during this period no investigation or prosecution has been initiated. The period of limitation shall be interrupted if an investigation or prosecution has been initiated during this period, either before the Court or by a State Party with jurisdiction over the case pursuant to article 70, paragraph 4 (a). 3. Enforcement of sanctions imposed with respect to offences defined in article 70 shall be subject to a period of limitation of 10 years from the date on which the sanction has become final. The period of limitation shall be interrupted with the detention of the convicted person or while the person concerned is outside the territory of the States Parties. Rule 165 Investigation, prosecution and trial 1. The Prosecutor may initiate and conduct investigations with respect to the offences defined in article 70 on his or her own initiative, on the basis of information communicated by a Chamber or any reliable source. 2. Articles 53 and 59, and any rules there under, shall not apply. 3. For purposes of article 61, the Pre-Trial Chamber may make any of the determinations set forth in that article on the basis of written submissions, without a hearing, unless the interests of justice otherwise require. 4. A Trial Chamber may, as appropriate and taking into account the rights of the defence, direct that there be joiner of charges under article 70 with charges under articles 5 to 8. Rule 166 Sanctions under article 70 1. If the Court imposes sanctions with respect to article 70, this rule shall apply. 2. Article 77, and any rules there under, shall not apply, with the exception of an order of forfeiture under article 77, paragraph 2 (b), which may be ordered in addition to imprisonment or a fine or both. 3. Each offence may be separately fined and those fines may be cumulative. Under no circumstances may the total amount exceed 50 per cent of the value of the convicted person’s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants.

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4. In imposing a fine the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period. 5. If the convicted person does not pay a fine imposed in accordance with the conditions set forth in sub-rule 4, appropriate measures may be taken by the Court pursuant to rules 217 to 222 and in accordance with article 109. Where, in cases of continued wilful non-payment, the Court, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort impose a term of imprisonment in accordance with article 70, paragraph 3. In the determination of such term of imprisonment, the Court shall take into account the amount of fine paid. Rule 167 International cooperation and judicial assistance 1. With regard to offences under article 70, the Court may request a State to provide any form of international cooperation or judicial assistance corresponding to those forms set forth in Part 9. In any such request, the Court shall indicate that the basis for the request is an investigation or prosecution of offences under article 70. 2. The conditions for providing international cooperation or judicial assistance to the Court with respect to offences under article 70 shall be those set forth in article 70, paragraph 2. Rule 168 Ne bis in idem In respect of offences under article 70, no person shall be tried before the Court with respect to conduct which formed the basis of an offence for which the person has already been convicted or acquitted by the Court or another court. Rule 169 Immediate arrest In the case of an alleged offence under article 70 committed in the presence of a Chamber, the Prosecutor may orally request that Chamber to order the immediate arrest of the person concerned. Section II Misconduct before the Court under article 71 Rule 170 Disruption of proceedings Having regard to article 63, paragraph 2, the Presiding Judge of the Chamber dealing with the matter may, after giving a warning: (a) Order a person disrupting the proceedings of the Court to leave or be removed from the courtroom; or, (b) In case of repeated misconduct, order the interdiction of that person from attending the proceedings.

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Rule 171 Refusal to comply with a direction by the Court 1. When the misconduct consists of deliberate refusal to comply with an oral or written direction by the Court, not covered by rule 170, and that direction is accompanied by a warning of sanctions in case of breach, the Presiding Judge of the Chamber dealing with the matter may order the interdiction of that person from the proceedings for a period not exceeding 30 days or, if the misconduct is of a more serious nature, impose a fine. 2. If the person committing misconduct as described in sub-rule 1 is an official of the Court, or a defence counsel, or a legal representative of victims, the Presiding Judge of the Chamber dealing with the matter may also order the interdiction of that person from exercising his or her functions before the Court for a period not exceeding 30 days. 3. If the Presiding Judge in cases under sub-rules 1 and 2 considers that a longer period of interdiction is appropriate, the Presiding Judge shall refer the matter to the Presidency, which may hold a hearing to determine whether to order a longer or permanent period of interdiction. 4. A fine imposed under sub-rule 1 shall not exceed 2,000 euros, or the equivalent amount in any currency, provided that in cases of continuing misconduct, a new fine may be imposed on each day that the misconduct continues, and such fines shall be cumulative. 5. The person concerned shall be given an opportunity to be heard before a sanction for misconduct, as described in this rule, is imposed. Rule 172 Conduct covered by both articles 70 and 71 If conduct covered by article 71 also constitutes one of the offences defined in article 70, the Court shall proceed in accordance with article 70 and rules 162 to 169. Chapter 10 Compensation to an arrested or convicted person Rule 173 Request for compensation 1. Anyone seeking compensation on any of the grounds indicated in article 85 shall submit a request, in writing, to the Presidency, which shall designate a Chamber composed of three judges to consider the request. These judges shall not have participated in any earlier judgement of the Court regarding the person making the request. 2. The request for compensation shall be submitted not later than six months from the date the person making the request was notified of the decision of the Court concerning: (a) The unlawfulness of the arrest or detention under article 85, paragraph 1; (b) The reversal of the conviction under article 85, paragraph 2;

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(c) The existence of a grave and manifest miscarriage of justice under article 85, paragraph 3. 3. The request shall contain the grounds and the amount of compensation requested. 4. The person requesting compensation shall be entitled to legal assistance. Rule 174 Procedure for seeking compensation 1. A request for compensation and any other written observation by the person filing the request shall be transmitted to the Prosecutor, who shall have an opportunity to respond in writing. Any observations by the Prosecutor shall be notified to the person filing the request. 2. The Chamber designated under rule 173, sub-rule 1, may either hold a hearing or determine the matter on the basis of the request and any written observations by the Prosecutor and the person filing the request. A hearing shall be held if the Prosecutor or the person seeking compensation so requests. 3. The decision shall be taken by the majority of the judges. The decision shall be notified to the Prosecutor and to the person filing the request. Rule 175 Amount of compensation In establishing the amount of any compensation in conformity with article 85, paragraph 3, the Chamber designated under rule 173, sub-rule 1, shall take into consideration the consequences of the grave and manifest miscarriage of justice on the personal, family, social and professional situation of the person filing the request. Chapter 11 International cooperation and judicial assistance Section 1 Requests for cooperation under article 87 Rule 176 Organs of the Court responsible for the transmission and receipt of any communications relating to international cooperation and judicial assistance 1. Upon and subsequent to the establishment of the Court, the Registrar shall obtain from the Secretary-General of the United Nations any communication made by States pursuant to article 87, paragraphs 1 (a) and 2. 2. The Registrar shall transmit the requests for cooperation made by the Chambers and shall receive the responses, information and documents from requested States. The Office of the Prosecutor shall transmit the requests for cooperation made by the Prosecutor and shall receive the responses, information and documents from requested States. 3. The Registrar shall be the recipient of any communication from States concerning subsequent changes in the designation of the national channels charged

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with receiving requests for cooperation, as well as of any change in the language in which requests for cooperation should be made, and shall, upon request, make such information available to States Parties as may be appropriate. 4. The provisions of sub-rule 2 are applicable mutatis mutandis where the Court requests information, documents or other forms of cooperation and assistance from an intergovernmental organization. 5. The Registrar shall transmit any communications referred to in sub-rules 1 and 3 and rule 177, sub-rule 2, as appropriate, to the Presidency or the Office of the Prosecutor, or both. Rule 177 Channels of communication 1. Communications concerning the national authority charged with receiving requests for cooperation made upon ratification, acceptance, approval or accession shall provide all relevant information about such authorities. 2. When an intergovernmental organization is asked to assist the Court under article 87, paragraph 6, the Registrar shall, when necessary, ascertain its designated channel of communication and obtain all relevant information relating thereto. Rule 178 Language chosen by States Parties under article 87, paragraph 2 1. When a requested State Party has more than one official language, it may indicate upon ratification, acceptance, approval or accession that requests for cooperation and any supporting documents can be drafted in any one of its official languages. 2. When the requested State Party has not chosen a language for communication with the Court upon ratification, acceptance, accession or approval, the request for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court pursuant to article 87, paragraph 2. Rule 179 Language of requests directed to States not party to the Statute When a State not party to the Statute has agreed to provide assistance to the Court under article 87, paragraph 5, and has not made a choice of language for such requests, the requests for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court. Rule 180 Changes in the channels of communication or the languages of requests for cooperation 1. Changes concerning the channel of communication or the language a State has chosen under article 87, paragraph 2, shall be communicated in writing to the Registrar at the earliest opportunity. 2. Such changes shall take effect in respect of requests for cooperation made by the Court at a time agreed between the Court and the State or, in the absence of

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such an agreement, 45 days after the Court has received the communication and, in all cases, without prejudice to current requests or requests in progress. Section II Surrender, transit and competing requests under articles 89 and 90 Rule 181 Challenge to admissibility of a Case before a national court When a situation described in article 89, paragraph 2, arises, and without prejudice to the provisions of article 19 and of rules 58 to 62 on procedures applicable to challenges to the jurisdiction of the Court or the admissibility of a case, the Chamber dealing with the case, if the admissibility ruling is still pending, shall take steps to obtain from the requested State all the relevant information about the ne bis in idem challenge brought by the person. Rule 182 Request for transit under article 89, paragraph 3 (e) 1. In situations described in article 89, paragraph 3 (e), the Court may transmit the request for transit by any medium capable of delivering a written record. 2. When the time limit provided for in article 89, paragraph 3 (e), has expired and the person concerned has been released, such a release is without prejudice to a subsequent arrest of the person in accordance with the provisions of article 89 or article 92. Rule 183 Possible temporary surrender Following the consultations referred to in article 89, paragraph 4, the requested State may temporarily surrender the person sought in accordance with conditions determined between the requested State and the Court. In such case the person shall be kept in custody during his or her presence before the Court and shall be transferred to the requested State once his or her presence before the Court is no longer required, at the latest when the proceedings have been completed. Rule 184 Arrangements for surrender 1. The requested State shall immediately inform the Registrar when the person sought by the Court is available for surrender. 2. The person shall be surrendered to the Court by the date and in the manner agreed upon between the authorities of the requested State and the Registrar. 3. If circumstances prevent the surrender of the person by the date agreed, the authorities of the requested State and the Registrar shall agree upon a new date and manner by which the person shall be surrendered. 4. The Registrar shall maintain contact with the authorities of the host State in relation to the arrangements for the surrender of the person to the Court.

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Rule 185 Release of a person from the custody of the Court other than upon completion of sentence 1. Subject to sub-rule 2, where a person surrendered to the Court is released from the custody of the Court because the Court does not have jurisdiction, the case is inadmissible under article 17, paragraph 1 (b), (c) or (d), the charges have not been confirmed under article 61, the person has been acquitted at trial or on appeal, or for any other reason, the Court shall, as soon as possible, make such arrangements as it considers appropriate for the transfer of the person, taking into account the views of the person, to a State which is obliged to receive him or her, to another State which agrees to receive him or her, or to a State which has requested his or her extradition with the consent of the original surrendering State. In this case, the host State shall facilitate the transfer in accordance with the agreement referred to in article 3, paragraph 2, and the related arrangements. 2. Where the Court has determined that the case is inadmissible under article 17, paragraph 1 (a), the Court shall make arrangements, as appropriate, for the transfer of the person to a State whose investigation or prosecution has formed the basis of the successful challenge to admissibility, unless the State that originally surrendered the person requests his or her return. Rule 186 Competing requests in the context of a Challenge to the admissibility of the case In situations described in article 90, paragraph 8, the requested State shall provide the notification of its decision to the Prosecutor in order to enable him or her to act in accordance with article 19, paragraph 10. Section III Documents for arrest and surrender under articles 91 and 92 Rule 187 Translation of documents accompanying request for surrender For the purposes of article 67, paragraph 1 (a), and in accordance with rule 117, sub-rule 1, the request under article 91 shall be accompanied, as appropriate, by a translation of the warrant of arrest or of the judgement of conviction and by a translation of the text of any relevant provisions of the Statute, in a language that the person fully understands and speaks. Rule 188 Time limit for submission of documents after provisional arrest For the purposes of article 92, paragraph 3, the time limit for receipt by the requested State of the request for surrender and the documents supporting the request shall be 60 days from the date of the provisional arrest.

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Rule 189 Transmission of documents supporting the request When a person has consented to surrender in accordance with the provisions of article 92, paragraph 3, and the requested State proceeds to surrender the person to the Court, the Court shall not be required to provide the documents described in article 91 unless the requested State indicates otherwise. Section IV Cooperation under article 93 Rule 190 Instruction on self-incrimination accompanying request for witness When making a request under article 93, paragraph 1 (e), with respect to a witness, the Court shall annex an instruction, concerning rule 74 relating to selfincrimination, to be provided to the witness in question, in a language that the person fully understands and speaks. Rule 191 Assurance provided by the Court under article 93, paragraph 2 The Chamber dealing with the case, on its own motion or at the request of the Prosecutor, defence or witness or expert concerned, may decide, after taking into account the views of the Prosecutor and the witness or expert concerned, to provide the assurance described in article 93, paragraph 2. Rule 192 Transfer of a person in custody 1. Transfer of a person in custody to the Court in accordance with article 93, paragraph 7, shall be arranged by the national authorities concerned in liaison with the Registrar and the authorities of the host State. 2. The Registrar shall ensure the proper conduct of the transfer, including the supervision of the person while in the custody of the Court. 3. The person in custody before the Court shall have the right to raise matters concerning the conditions of his or her detention with the relevant Chamber. 4. In accordance with article 93, paragraph 7 (b), when the purposes of the transfer have been fulfilled, the Registrar shall arrange for the return of the person in custody to the requested State. Rule 193 Temporary transfer of the person from the State of enforcement 1. The Chamber that is considering the case may order the temporary transfer from the State of enforcement to the seat of the Court of any person sentenced by the Court whose testimony or other assistance is necessary to the Court. The provisions of article 93, paragraph 7, shall not apply. 2. The Registrar shall ensure the proper conduct of the transfer, in liaison with the authorities of the State of enforcement and the authorities of the host State.

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When the purposes of the transfer have been fulfilled, the Court shall return the sentenced person to the State of enforcement. 3. The person shall be kept in custody during his or her presence before the Court. The entire period of detention spent at the seat of the Court shall be deducted from the sentence remaining to be served. Rule 194 Cooperation requested from the Court 1. In accordance with article 93, paragraph 10, and consistent with article 96, mutatis mutandis, a State may transmit to the Court a request for cooperation or assistance to the Court, either in or accompanied by a translation into one of the working languages of the Court. 2. Requests described in sub-rule 1 are to be sent to the Registrar, which shall transmit them, as appropriate, either to the Prosecutor or to the Chamber concerned. 3. If protective measures within the meaning of article 68 have been adopted, the Prosecutor or Chamber, as appropriate, shall consider the views of the Chamber which ordered the measures as well as those of the relevant victim or witness, before deciding on the request. 4. If the request relates to documents or evidence as described in article 93, paragraph 10 (b) (ii), the Prosecutor or Chamber, as appropriate, shall obtain the written consent of the relevant State before proceeding with the request. 5. When the Court decides to grant the request for cooperation or assistance from a State, the request shall be executed, insofar as possible, following any procedure outlined therein by the requesting State and permitting persons specified in the request to be present. Section V Cooperation under article 98 Rule 195 Provision of information 1. When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court. 2. The Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court.

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Section VI Rule of speciality under article 101 Rule 196 Provision of views on article 101, paragraph 1 A person surrendered to the Court may provide views on a perceived violation of the provisions of article 101, paragraph 1. Rule 197 Extension of the surrender When the Court has requested a waiver of the requirements of article 101, paragraph 1, the requested State may ask the Court to obtain and provide the views of the person surrendered to the Court. Chapter 12 Enforcement Section I Role of States in enforcement of sentences of imprisonment and change in designation of State of enforcement under articles 103 and 104 Rule 198 Communications between the Court and States Unless the context otherwise requires, article 87 and rules 176 to 180 shall apply, as appropriate, to communications between the Court and a State on matters relating to enforcement of sentences. Rule 199 Organ responsible under Part 10 Unless provided otherwise in the Rules, the functions of the Court under Part 10 shall be exercised by the Presidency. Rule 200 List of States of enforcement 1. A list of States that have indicated their willingness to accept sentenced persons shall be established and maintained by the Registrar. 2. The Presidency shall not include a State on the list provided for in article 103, paragraph 1 (a), if it does not agree with the conditions that such a State attaches to its acceptance. The Presidency may request any additional information from that State prior to taking a decision. 3. A State that has attached conditions of acceptance may at any time withdraw such conditions. Any amendments or additions to such conditions shall be subject to confirmation by the Presidency.

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4. A State may at any time inform the Registrar of its withdrawal from the list. Such withdrawal shall not affect the enforcement of the sentences in respect of persons that the State has already accepted. 5. The Court may enter bilateral arrangements with States with a view to establishing a framework for the acceptance of prisoners sentenced by the Court. Such arrangements shall be consistent with the Statute. Rule 201 Principles of equitable distribution Principles of equitable distribution for purposes of article 103, paragraph 3, shall include: (a) The principle of equitable geographical distribution; (b) The need to afford each State on the list an opportunity to receive sentenced persons; (c) The number of sentenced persons already received by that State and other States of enforcement; (d) Any other relevant factors. Rule 202 Timing of delivery of the sentenced person to the State of enforcement The delivery of a sentenced person from the Court to the designated State of enforcement shall not take place unless the decision on the conviction and the decision on the sentence have become final. Rule 203 Views of the sentenced person 1. The Presidency shall give notice in writing to the sentenced person that it is addressing the designation of a State of enforcement. The sentenced person shall, within such time limit as the Presidency shall prescribe, submit in writing his or her views on the question to the Presidency. 2. The Presidency may allow the sentenced person to make oral presentations. 3. The Presidency shall allow the sentenced person: (a) To be assisted, as appropriate, by a competent interpreter and to benefit from any translation necessary for the presentation of his or her views; (b) To be granted adequate time and facilities necessary to prepare for the presentation of his or her views. Rule 204 Information relating to designation When the Presidency notifies the designated State of its decision, it shall also transmit the following information and documents: (a) The name, nationality, date and place of birth of the sentenced person; (b) A copy of the final judgement of conviction and of the sentence imposed; (c) The length and commencement date of the sentence and the time remaining to be served;

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(d) After having heard the views of the sentenced person, any necessary information concerning the state of his or her health, including any medical treatment that he or she is receiving. Rule 205 Rejection of designation in a particular case Where a State in a particular case rejects the designation by the Presidency, the Presidency may designate another State. Rule 206 Delivery of the sentenced person to the State of enforcement 1. The Registrar shall inform the Prosecutor and the sentenced person of the State designated to enforce the sentence. 2. The sentenced person shall be delivered to the State of enforcement as soon as possible after the designated State of enforcement accepts. 3. The Registrar shall ensure the proper conduct of the delivery of the person in consultation with the authorities of the State of enforcement and the host State. Rule 207 Transit 1. No authorization is required if the sentenced person is transported by air and no landing is scheduled on the territory of the transit State. If an unscheduled landing occurs on the territory of the transit State, that State shall, to the extent possible under the procedure of national law, detain the sentenced person in custody until a request for transit as provided in sub-rule 2 or a request under article 89, paragraph 1, or article 92 is received. 2. To the extent possible under the procedure of national law, a State Party shall authorize the transit of a sentenced person through its territory and the provisions of article 89, paragraph 3 (b) and (c), and articles 105 and 108 and any rules relating thereto shall, as appropriate, apply. A copy of the final judgement of conviction and of the sentence imposed shall be attached to such request for transit. Rule 208 Costs 1. The ordinary costs for the enforcement of the sentence in the territory of the State of enforcement shall be borne by that State. 2. Other costs, including those for the transport of the sentenced person and those referred to in article 100, paragraph 1 (c), (d) and (e), shall be borne by the Court. Rule 209 Change in designation of State of enforcement 1. The Presidency, acting on its own motion or at the request of the sentenced person or the Prosecutor, may at any time act in accordance with article 104, paragraph 1.

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2. The request of the sentenced person or of the Prosecutor shall be made in writing and shall set out the grounds upon which the transfer is sought. Rule 210 Procedure for change in the Designation of a State of enforcement 1. Before deciding to change the designation of a State of enforcement, the Presidency may: (a) Request views from the State of enforcement; (b) Consider written or oral presentations of the sentenced person and the Prosecutor; (c) Consider written or oral expert opinion concerning, inter alia, the sentenced person; (d) Obtain any other relevant information from any reliable sources. 2. The provisions of rule 203, sub-rule 3, shall apply, as appropriate. 3. If the Presidency refuses to change the designation of the State of enforcement, it shall, as soon as possible, inform the sentenced person, the Prosecutor and the Registrar of its decision and of the reasons therefore. It shall also inform the State of enforcement. Section II Enforcement, supervision and transfer under articles 105, 106 and 107 Rule 211 Supervision of enforcement of sentences and conditions of imprisonment 1. In order to supervise the enforcement of sentences of imprisonment, the Presidency: (a) Shall, in consultation with the State of enforcement, ensure that in establishing appropriate arrangements for the exercise by any sentenced person of his or her right to communicate with the Court about the conditions of imprisonment, the provisions of article 106, paragraph 3, shall be respected; (b) May, when necessary, request any information, report or expert opinion from the State of enforcement or from any reliable sources; (c) May, where appropriate, delegate a judge of the Court or a member of the staff of the Court who will be responsible, after notifying the State of enforcement, for meeting the sentenced person and hearing his or her views, without the presence of national authorities; (d) May, where appropriate, give the State of enforcement an opportunity to comment on the views expressed by the sentenced person under sub-rule 1 (c). 2. When a sentenced person is eligible for a prison programme or benefit available under the domestic law of the State of enforcement which may entail some activity outside the prison facility, the State of enforcement shall communicate that fact to the Presidency, together with any relevant information or observation, to enable the Court to exercise its supervisory function.

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Rule 212 Information on location of the person for enforcement of fines, forfeitures or reparation measures For the purpose of enforcement of fines and forfeiture measures and of reparation measures ordered by the Court, the Presidency may, at any time or at least 30 days before the scheduled completion of the sentence served by the sentenced person, request the State of enforcement to transmit to it the relevant information concerning the intention of that State to authorize the person to remain in its territory or the location where it intends to transfer the person. Rule 213 Procedure for article 107, paragraph 3 With respect to article 107, paragraph 3, the procedure set out in rules 214 and 215 shall apply, as appropriate. Section III Limitation on the prosecution or punishment of other offences under article 108 Rule 214 Request to prosecute or enforce a sentence for prior conduct 1. For the application of article 108, when the State of enforcement wishes to prosecute or enforce a sentence against the sentenced person for any conduct engaged in prior to that person’s transfer, it shall notify its intention to the Presidency and transmit to it the following documents: (a) A statement of the facts of the case and their legal characterization; (b) A copy of any applicable legal provisions, including those concerning the statute of limitation and the applicable penalties; (c) A copy of any sentence, warrant of arrest or other document having the same force, or of any other legal writ which the State intends to enforce; (d) A protocol containing views of the sentenced person obtained after the person has been informed sufficiently about the proceedings. 2. In the event of a request for extradition made by another State, the State of enforcement shall transmit the entire request to the Presidency with a protocol containing the views of the sentenced person obtained after informing the person sufficiently about the extradition request. 3. The Presidency may in all cases request any document or additional information from the State of enforcement or the State requesting extradition. 4. If the person was surrendered to the Court by a State other than the State of enforcement or the State seeking extradition, the Presidency shall consult with the State that surrendered the person and take into account any views expressed by that State. 5. Any information or documents transmitted to the Presidency under sub-rules 1 to 4 shall be transmitted to the Prosecutor, who may comment. 6. The Presidency may decide to conduct a hearing.

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Rule 215 Decision on request to prosecute or enforce a sentence 1. The Presidency shall make a determination as soon as possible. This determination shall be notified to all those who have participated in the proceedings. 2. If the request submitted under sub-rules 1 or 2 of rule 214 concerns the enforcement of a sentence, the sentenced person may serve that sentence in the State designated by the Court to enforce the sentence pronounced by it or be extradited to a third State only after having served the full sentence pronounced by the Court, subject to the provisions of article 110. 3. The Presidency may authorize the temporary extradition of the sentenced person to a third State for prosecution only if it has obtained assurances which it deems to be sufficient that the sentenced person will be kept in custody in the third State and transferred back to the State responsible for enforcement of the sentence pronounced by the Court, after the prosecution. Rule 216 Information on enforcement The Presidency shall request the State of enforcement to inform it of any important event concerning the sentenced person, and of any prosecution of that person for events subsequent to his or her transfer. Section IV Enforcement of fines, for feature measures and reparation orders Rule 217 Cooperation and measures for enforcement of fines, forfeiture or reparation orders For the enforcement of fines, forfeiture or reparation orders, the Presidency shall, as appropriate, seek cooperation and measures for enforcement in accordance with Part 9, as well as transmit copies of relevant orders to any State with which the sentenced person appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of the sentenced person’s assets and property or with which the victim has such connection. The Presidency shall, as appropriate, inform the State of any thirdparty claims or of the fact that no claim was presented by a person who received notification of any proceedings conducted pursuant to article 75. Rule 218 Orders for forfeiture and reparations 1. In order to enable States to give effect to an order for forfeiture, the order shall specify: (a) The identity of the person against whom the order has been issued; (b) The proceeds, property and assets that have been ordered by the Court to be forfeited; and

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(c) That if the State Party is unable to give effect to the order for forfeiture in relation to the specified proceeds, property or assets, it shall take measures to recover the value of the same. 2. In the request for cooperation and measures for enforcement, the Court shall also provide available information as to the location of the proceeds, property and assets that are covered by the order for forfeiture. 3. In order to enable States to give effect to an order for reparations, the order shall specify: (a) The identity of the person against whom the order has been issued; (b) In respect of reparations of a financial nature, the identity of the victims to whom individual reparations have been granted, and, where the award for reparations shall be deposited with the Trust Fund, the particulars of the Trust Fund for the deposit of the award; and (c) The scope and nature of the reparations ordered by the Court, including, where applicable, the property and assets for which restitution has been ordered. 4. Where the Court awards reparations on an individual basis, a copy of the reparation order shall be transmitted to the victim concerned. Rule 219 Non-modification of orders for reparation The Presidency shall, when transmitting copies of orders for reparations to States Parties under rule 217, inform them that, in giving effect to an order for reparations, the national authorities shall not modify the reparations specified by the Court, the scope or the extent of any damage, loss or injury determined by the Court or the principles stated in the order, and shall facilitate the enforcement of such order. Rule 220 Non-modification of judgements in which fines were imposed When transmitting copies of judgements in which fines were imposed to States Parties for the purpose of enforcement in accordance with article 109 and rule 217, the Presidency shall inform them that in enforcing the fines imposed, national authorities shall not modify them. Rule 221 Decision on disposition or allocation of property or assets 1. The Presidency shall, after having consulted, as appropriate, with the Prosecutor, the sentenced person, the victims or their legal representatives, the national authorities of the State of enforcement or any relevant third party, or representatives of the Trust Fund provided for in article 79, decide on all matters related to the disposition or allocation of property or assets realized through enforcement of an order of the Court. 2. In all cases, when the Presidency decides on the disposition or allocation of property or assets belonging to the sentenced person, it shall give priority to the enforcement of measures concerning reparations to victims.

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Rule 222 Assistance for service or any other measure The Presidency shall assist the State in the enforcement of fines, forfeiture or reparation orders, as requested, with the service of any relevant notification on the sentenced person or any other relevant persons, or the carrying out of any other measures necessary for the enforcement of the order under the procedure of the national law of the enforcement State. Section V Review concerning reduction of sentence under article 110 Rule 223 Criteria for review concerning reduction of sentence In reviewing the question of reduction of sentence pursuant to article 110, paragraphs 3 and 5, the three judges of the Appeals Chamber shall take into account the criteria listed in article 110, paragraph 4 (a) and (b), and the following criteria: (a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime; (b) The prospect of the resocialization and successful resettlement of the sentenced person; (c) Whether the early release of the sentenced person would give rise to significant social instability; (d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release; (e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age. Rule 224 Procedure for review concerning reduction of sentence 1. For the application of article 110, paragraph 3, three judges of the Appeals Chamber appointed by that Chamber shall conduct a hearing, unless they decide otherwise in a particular case, for exceptional reasons. The hearing shall be conducted with the sentenced person, who may be assisted by his or her counsel, with interpretation, as may be required. Those three judges shall invite the Prosecutor, the State of enforcement of any penalty under article 77 or any reparation order pursuant to article 75 and, to the extent possible, the victims or their legal representatives who participated in the proceedings, to participate in the hearing or to submit written observations. Under exceptional circumstances, this hearing may be conducted by way of a videoconference or in the State of enforcement by a judge delegated by the Appeals Chamber. 2. The same three judges shall communicate the decision and the reasons for it to all those who participated in the review proceedings as soon as possible. 3. For the application of article 110, paragraph 5, three judges of the Appeals Chamber appointed by that Chamber shall review the question of reduction of

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sentence every three years, unless it establishes a shorter interval in its decision taken pursuant to article 110, paragraph 3. In case of a significant change in circumstances, those three judges may permit the sentenced person to apply for a review within the three-year period or such shorter period as may have been set by the three judges. 4. For any review under article 110, paragraph 5, three judges of the Appeals Chamber appointed by that Chamber shall invite written representations from the sentenced person or his or her counsel, the Prosecutor, the State of enforcement of any penalty under article 77 and any reparation order pursuant to article 75 and, to the extent possible, the victims or their legal representatives who participated in the proceedings. The three judges may also decide to hold a hearing. 5. The decision and the reasons for it shall be communicated to all those who participated in the review proceedings as soon as possible. Section VI Escape Rule 225 Measures under article 111 in the event of escape 1. If the sentenced person has escaped, the State of enforcement shall, as soon as possible, advise the Registrar by any medium capable of delivering a written record. The Presidency shall then proceed in accordance with Part 9. 2. However, if the State in which the sentenced person is located agrees to surrender him or her to the State of enforcement, pursuant to either international agreements or its national legislation, the State of enforcement shall so advise the Registrar in writing. The person shall be surrendered to the State of enforcement as soon as possible, if necessary in consultation with the Registrar, who shall provide all necessary assistance, including, if necessary, the presentation of requests for transit to the States concerned, in accordance with rule 207. The costs associated with the surrender of the sentenced person shall be borne by the Court if no State assumes responsibility for them. 3. If the sentenced person is surrendered to the Court pursuant to Part 9, the Court shall transfer him or her to the State of enforcement. Nevertheless, the Presidency may, acting on its own motion or at the request of the Prosecutor or of the initial State of enforcement and in accordance with article 103 and rules 203 to 206, designate another State, including the State to the territory of which the sentenced person has fled. 4. In all cases, the entire period of detention in the territory of the State in which the sentenced person was in custody after his or her escape and, where subrule 3 is applicable, the period of detention at the seat of the Court following the surrender of the sentenced person from the State in which he or she was located shall be deducted from the sentence remaining to be served.

RESOLUTION RC/RES.6

Adopted at the 13th plenary meeting, on 11 June 2010, by consensus RC/Res.6 The crime of aggression The Review Conference, Recalling paragraph 1 of article 12 of the Rome Statute, Recalling paragraph 2 of article 5 of the Rome Statute, Recalling also paragraph 7 of resolution F, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, Recalling further resolution ICC-ASP/1/Res.1 on the continuity of work in respect of the crime of aggression, and expressing its appreciation to the Special Working Group on the Crime of Aggression for having elaborated proposals on a provision on the crime of aggression, Taking note of resolution ICC-ASP/8/Res.6, by which the Assembly of States Parties forwarded proposals on a provision on the crime of aggression to the Review Conference for its consideration, Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible, 1. Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of the International Criminal Court (hereinafter: “the Statute”) the amendments to the Statute contained in annex I of the present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph 5; and notes that any State Party may lodge a declaration referred to in article 15 bis prior to ratification or acceptance; 2. Also decides to adopt the amendments to the Elements of Crimes contained in annex II of the present resolution; 3. Also decides to adopt the understandings regarding the interpretation of the abovementioned amendments contained in annex III of the present resolution;

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4. Further decides to review the amendments on the crime of aggression seven years after the beginning of the Court’s exercise of jurisdiction; 5. Calls upon all States Parties to ratify or accept the amendments contained in annex I. ! See Depositary Notification C.N.651.2010 Treaties-8, dated 29 November 2010, available at Annex I Amendments to the Rome Statute of the International Criminal Court on the crime of aggression 1. Article 5, paragraph 2, of the Statute is deleted. 2. The following text is inserted after article 8 of the Statute: Article 8 bis Crime of aggression 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

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(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. 3. The following text is inserted after article 15 of the Statute: Article 15 bis Exercise of jurisdiction over the crime of aggression (State referral, proprio motu) 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article. 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. 4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at anytime and shall be considered by the State Party within three years. 5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory. 6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents. 7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression. 8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article16.

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9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. 10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5. 4. The following text is inserted after article 15 bis of the Statute: Article 15ter Exercise of jurisdiction over the crime of aggression(Security Council referral) 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article. 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. 4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. 5. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5. 5. The following text is inserted after article 25, paragraph 3, of the Statute: 3 bis. In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State. 6. The first sentence of article 9, paragraph 1, of the Statute is replaced by the following sentence: 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis. 7. The chapeau of article 20, paragraph 3, of the Statute is replaced by the following paragraph; the rest of the paragraph remains unchanged: 3. No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

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Resolution RC/Res.6 Annex II Amendments to the Elements of Crimes Article 8 bis Crime of aggression

Introduction 1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression. 2. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations. 3. The term “manifest” is an objective qualification. 4. There is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations. Elements 1. The perpetrator planned, prepared, initiated or executed an act of aggression. 2. The perpetrator was a person1 in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression. 3. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed. 4. The perpetrator was aware of the factual circumstances that established that such abuse of armed force was inconsistent with the Charter of the United Nations. 5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. 6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations. 1 With respect to an act of aggression, more than one person may be in a position that meets these criteria. Annex III Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the crime of Aggression Referrals by the Security Council 1. It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article 15 ter, paragraph 3, is taken, and one year after the

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ratification or acceptance of the amendments by thirty States Parties, whichever is later. 2. It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13,paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard. Jurisdiction ratione temporis 3. It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15 bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. Domestic jurisdiction over the crime of aggression 4. It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. 5. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State. Other understandings 6. It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations. 7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.

BIBLIOGRAPHY1

Abal-Haqq Irshad, ‘Islamic Law: An Overview of Its Origin and Elements’, 1 Journal of Islamic Law and Culture (1996), pp. 1-60. Abal-Haqq Irshad, ‘Legal Injunction of the Qur'an’, (1997) 2 Journal of Islamic Law 53-92. Abal-Haqq Irshad, ‘The Legal Definition of Islam: An Examination of Judicial, Legislative, Mainstream and Non-traditional Interpretations’, (1996) 1 Journal of Islamic Law 105-185. Abdel Haleem Muhammad, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the Shari‫ޏ‬a (London. New York: I. B. Tauris, 2003). Abdel Haleem, Muhammed, Adel Omar Sharef, and Kate Daniels, eds.Criminal Justice in Islam: Judicial Procedure in the Shariҵah (London, 2003). Abdelkader Deina, Social Justice in Islam. Herndon, VA: IIIT (2000). Abd-elrahim Gaafer Mohamed, The Concept of Punishment in Islamic Law in Relation to Contemporary Legal Trends (1987). Abdel-Wahab S.E., ‘Meaning and the Structure of Law in Islam’, 16 Vanderbilt Law Review (1962). Abdul Muin Abdul Rahman, Witnesses in Islamic Law of Evidence. (Pelanduk Publication: Selangor, 1999). Abdulai Napoleon (ed.), Genocide in Rwanda (Africa Research & Information Centre, 1994). Abdullahi An-Na`im, ‘A modern Approach to Human Rights in Islam: Foundations and Implications for Africa’, in Claude Welch and Ronald Meltzer (eds.), Human Rights and Development in Africa (Albany, 1984) Abdul-Rauf Feisal, Islam: A Sacred Law, What Every Muslim Should Know about the Shari`ah. Qiblah Books (Threshold Books, 2000). Abu Sahlieh, Sami Aldeeb, ‘Les Droits de l'homme et l'Islam,’ 89 Revue general de droit international public (1985), pp.625-716. Abul-Fazl M, Sayings of the Prophet Muhammad (New Delhi, 1980). Abul-Fazl, M., Sayings of the Prophet Muhammad (New Delhi, 1980). Ackerman John E. and Eugène O’Sullivan, Practice and Procedure of the International Criminal Tribunal for the Former Yugoslavia with selected material from the International Criminal Tribunal for Rwanda (2000). Adel Omar Sherif, ‘Generalities on Criminal Procedure under Islamic Shariah’ in Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the Shari‫ޏ‬a (London. New York: I. B. Tauris, 2003), pp.3-16. 1

Mention here neither includes nor excludes in the text.

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Afsaruddin Asma, ‘The Siyar Laws of Aggression: Juridical Re-interpretations of Qur'Ɨnic and their Contemporary Implications for International Law’, in Marie-Luisa Frick, pp.45-63. Aghnides Nicolas P, Mohammadan Theories of Finance with an Introduction to Mohammadan Law and a Bibliography (Columbia University, New York, London, 1916). Ago Roberto, ‘Pluralism and the Origins of the International Community’, 3 Italian Yearbook of International (1993). Ago Roberto, Lezioni di diritto internazionale private: parte generale (Milan: Giuffre, 1955). Akbarzadeh Shahram, Islam and Globalization: Critical Concepts in Islamic Studies (London: Routledge Press, 2006). Akehurst M., ‘Jurisdiction in International Law’, 46 British Yearbook of International Law (1972-73), pp.145-217. Akehurst M., ‘Jurisdiction in International Law’, 46 British Yearbook of International Law (1972-73), pp.145-217. Al-Alwani Taha Jaber, “The Testimony of Women in Islamic Law”, www.alhewar.com/Taha Testimony.htm. Alarefi Abdullah Saad, Overview of Islamic Law, 9 (4) International Criminal Law Review (2009), pp.707-731. Albanese Jay S. (ed.), The Encyclopaedia of Criminology & Criminal Justice (United States: Wiley-Blackwell (5 volumes, 2013). Aldeeb Sami A. Abu-Sahlieh, ‘Les Droits de l'homme et l'Islam’, 89 Revue general de droit international public (1985), 625-716. Al-Ghunaimi Mohammad Talaat, The Muslim Conception of International Law and Western Approach ((Netherlands, 1968). Al-Ghunaimi Muhammad Talaat, Justice and Human Rights in Islam in Gerald E. Lampe (ed.) Justice and Human Rights in Islamic Law (Washington: International Law Institute, 1997), pp.1-22. Ali Maulana Muhammad, The Call of Islam (2nd ed., Lahore, 1926). Ali Mawlawi, Muhammad, The Religion of Islam (Lahore, 1926 and1956). Ali S. A., The Ethics of Islam (Calcutta, 1893). Ali S. A., The Spirit of Islam (London: Allan, 1896, republished Delhi: Islamic Book Trust, 1981). Ali Shaheen Sardar and, Baela Jamil, The United Nations Convention on the Rights of the Child, Islamic Law and Pakistan Legislation : A Comparative Study (Peshawar: Educational Computing Services & Publishers, 1995). Ali, S. A., The Ethics of Islam (Calcutta, 1895). Al-Khasawneh Awn S., ‘Islam and International Law’ in Marie-Luisa Frick and Andreas Th. Müller, Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives (Leiden. Boston, Martinus Nijhoff Publishers, 2013). Allan T. R. S., Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford: Oxford University, 1994). Allison Henry, Kant’s Theory of Freedom (Cambridge University Press, 1990),.

712

Bibliography

Al-Saleh Osman Abd-el-Malek, The Right of the Individual to Personal Security in Bassiouni, Islam (1982), pp.55-90. Amann D.M. and M.N.S. Sellers, The United States of America and the International Criminal Court, American Journal of Comparative Law 381-404 (2002). Ambion Bienvenido C., Organization of a Court of International Criminal Jurisdiction, 29 Philippine Law Journal 345 (1954). Ambos K., ‘International criminal procedure: “Adversarial”, “Inquisitorial” or Mixed?’, 3 International Criminal Law Review (2003), pp.1–37. Amin, S. H.Middle East Legal Systems (Glasgow, 1985). Amini Mohad Tagi, Time Changes and Islamic Law (Delli: Idarha-I Adabiyat-I, 2009). Anderson J.N.D, Law Reform in the Muslim World (1976). Anderson J.N.D., Decision by Majority in Islamic Law (Berlin, 1973). Anderson J.N.D., Islamic Law in the Modern World (Westport: Greenwood Press Publishers, 1959). Anderson, James J.N.D., ‘Homicide in Islamic Law’, 13(4) Bulletin of the School of Oriental and African Studies (1951),pp. 811–828. Anderson-Gold Sharon, Unnecessary Evil: History and Moral Progress in the Philosophy of Kant Immanuel (SUNY Press, 2001). An-Na`im Abdullahi, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse, 1990). An-Na’im Abdullahi Ahmed, ‘Islam and International Law: Toward a Positive Mutual Engagement to Realize Shared Ideals’, ASIL Proceedings (2004), pp.159-66. An-Na’im Abdullahi, ‘Philosophy on Islam and Human Rights’, in Baderin, Islam and Human Rights,. An-Na'im Abdullahi Ahmed, Muslims and Global Justice (US: University of Pennsylvania Press, 2011). Annan Kofi, Advocating for an International Criminal Court, 21 Fordham International Law Journal 363 (1997). Anwarullah A, The Criminal Law of Islam (Islamabad: Shariah Academy, 2004). Anwarullah A., The Criminal Law of Islam (Kuala Lumpur: A.S. Noordeen, 1997). Apple James G., ‘Court Authority Necessary for a Democracy: The Doctrine of Inherent Powers and the Fashioning of Remedies’ in Muhammad Abdel Haleem, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the Shari‫ޏ‬a (London. New York: I. B. Tauris, 2003), pp.45-61. Arabi Abdel Rahman,, L’Islam et la guerre à l’Epoque du Prophète Mahomet (1954). Armstead J. Holmes, The International Criminal Court: History, Development and Status, 38 Santa Clara Law Review (1998), pp.745-835. Arnold Sir T.W., The Preaching of Islam (London, 1913). Ashman Allan and David L. Lee, ‘Non-Lawyer Judges: The Long Road North’ 53 (3) Chicago Kant Law Review (1977), pp.565-595.

Corpus Juris of Islamic International Criminal Justice

713

Atiyah P. S., Robert S. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Oxford: Clarendon Press, Oxford, 1991). Austin John, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (1954). Azami M.M., Studies in Early Hadith Literature (Indianapolis, 1978). Azami M.M., Studies in Hadith Methodology and Literature (1977). Azzam A., The Eternal Message of Mohammad (Harmondsworth: Penguin, 1964). Babiker Mohamed Abdelsalam, ‘The Prosecution of International Crimes under Sudan's Criminal and Military Laws: Developments, Gaps and Limitations’, in Lutz Oette, Criminal Law Reform, pp.161-182. Babiker Mohamed Abdelsalam, ‘The Relevance, Legitimacy and Applicability of the Nuremberg Principles and Islamic Law of War in Repressing International Crimes in Modern Islamic States and Societies’ in Ronald Slye pp.45-69. Babiker Mohamed Abdelsalam, Application of International Humanitarian and Human Rights Law to the Armed Conflicts of the Sudan: Complementary or Mutually Exclusive Regimes? (Antwerp and Oxford: Intersentia, 2007). Bachrach Michael, ‘The Protection and Rights of Victims under International Criminal Law,’ 54(1) The International Lawyer (2000). Badar Elewa, Mohamed, Islamic Criminal Justice in the 21st Century, International Criminal Law Review, Vol. 9, Number 4, 2009. Badar Mohamed Elewa, ‘Islamic Criminal Justice in the 21st Century’, International Criminal Law Review, Vol. 9, Number 4, 2009, pp. 591-595. Badar Mohamed Elewa, ‘Islamic Law (Shariah) and the Jurisdiction of the International Criminal Court’, Leiden Journal of International Law, 24 (2011), pp. 411–433. Badar Mohamed Elewa, 'Ius in Bello under Islamic International Law', 13 (3), International Criminal Law Review (2013), pp. 593-625. Badar Mohamed Elewa, The Concept of Mens Rea (Hart Publishing, 2013). Baderin Mashood A., "Effective Legal Representation in 'Shariah' Courts as a Means of Addressing Human Rights Concerns in the Islamic Criminal Justice System of Muslim States." 11 Yearbook of Islamic and Middle Eastern Law (2006), pp.135-167. Baderin Mashood, A., ‘A Comparative Analysis of the Right to a Fair Trial and due Process under International Human Rights Law and Saudi Arabian Domestic Law’, 10 (3) The International Journal of Human Rights (2006). Baderin Mashood A., International Human Rights and Islamic Law (New York, NY: Oxford University Press, 2005). Baderin Mashood A., International Law and Islamic Law (Ashgate, 2008). Badr G.M., ‘A Survey of Islamic International Law’, (1982) 76 Proceedings of the American Society of International Law, pp. 56-61. Bagley David A. ‘Ratification of Protocol I to the Geneva Conventions of 1949 by the United States: Discussion and Suggestions for the American, 11 (3) Lawyer-Citizen’ Loyola of Los Angeles International and Comparative Law Journal (1983), pp. 439-485.

714

Bibliography

Bahnassi Ahmad Fathi, ‘Criminal Responsibility in Islamic Law’, in Bassiouni, The Islamic Criminal Justice System. Balkin Jack M., ‘Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence’, 105 Yale Law Journal 105 (1995). Bantekas Ilias, ‘The Disunity of Islamic Criminal Law and the Modern Role of IjtihƗd’, International Criminal Law Review, Vol. 9, Number 4, 2009, pp. 651665. Barboza Julio, ‘International Criminal Law,’ 278 Recueil des cours 9-200 (19992000). Barnett Michael N., Eyewitness to a Genocide: The United Nations and Rwanda (2002). Baroody, George M., Crime and Punishment under Hanbali Law (Beirut, 1961). Barron Anne, ‘(Legal) Reason and its “Others”: Recent Development in Legal Theory’, in Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Schiff Penner, and Nobles, eds., 2002), pp. 1058-1065. Bartlett Eva, ‘What’s Happening in Syria? The Media ‘Kills the Truth’, ‘Terrorism’ is Described as ‘Moderate Opposition.’’(Global Research, February 05, 2017). Bartlett Eva, How We Were Mislead about Syria, available at https://ingaza.word press.com/. Bassiouni M. Cherif & Christopher Blakesley, ‘The Need for an International Criminal Court in the New International World Order’, 25 VAND. J. TRANSNAT’L 151 (1992). Bassiouni M. Cherif & Daniel Derby, Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant Instruments, 7 Hofstra Law Review 525 (1981). Bassiouni M. Cherif (ed.), International Criminal Law (US: Ocean Publication, 3 vols., 1999). Bassiouni M. Cherif (ed.), International Terrorism and Political Crimes (1975). Bassiouni M. Cherif and Benjamin B. Ferencz, The Crime Against Peace and Aggression: From Its Origins to the ICC, in International Criminal Law, vol. I, 207-242 (M. Cherif Bassiouni, ed. 2008). Bassiouni M. Cherif and Ved P. Nanda (eds.), A Treatise on International Criminal Law: Crimes and Punishment (2 vols. 1975). Bassiouni M. Cherif, ‘Protection of Diplomats under Islamic Law’, 74 American Journal of International Law (1980), pp. 609-655. Bassiouni M. Cherif, (ed.), The Islamic Criminal Justice System (London, Rome, New York, Oceana Publications, 1982). Bassiouni M. Cherif, ‘A Comprehensive Strategic Approach on International Cooperation for the Prevention, Control and Suppression of International and Transnational Criminality, Including the Establishment of an International Criminal Court’, 15 Nova Law Review 353 (1991). Bassiouni M. Cherif, ‘Draft Statute International Criminal Tribunal’, 9 Nouvellese Etudes Penales (1993).

Corpus Juris of Islamic International Criminal Justice

715

Bassiouni M. Cherif, ‘International Recognition of Victims’ Rights,’ in Bassiouni (ed.), International Criminal Law, Vol. III, 655-701 (2008). Bassiouni M. Cherif, ‘Sources of Islamic Law and the Protection of Human Rights in Bassiouni, the Islamic Criminal. Bassiouni M. Cherif, ‘The Discipline of International Criminal Law,’ in M. Cherif Bassiouni (ed.), International Criminal Law, Vol. 1 (2008) pp. 5-40. Bassiouni M. Cherif, ‘The Subjects of International Criminal Law: Ratione Personae’ in M. Bassiouni Cherif (ed.), International Criminal Law, Vol. 1 (2008) pp. 41-70. Bassiouni M. Cherif, Crimes Against Humanity in International law (1999). Bassiouni M. Cherif, Criminal Justice in the Time of War and Peace (Cambridge University Press, Cambridge, 2014). Bassiouni M. Cherif, Introduction to International Criminal Law (2005). Bassiouni M. Cherif, Islam: Concept, Law and Word Habeas Corpus, 2 Rutgers Camden Law Journal (1970). Bassiouni M. Cherif, Sources of Islamic Law, and the Protection of Human Rights in the Islamic Criminal Justice System, see Bassiouni, pp. 5-55. Bassiouni M. Cherif, Studies in Early Hadith Literature (Indianapolis, 1978). Bassiouni M. Cherif, The Discipline of International Criminal Law, in International Criminal Law, Vol. I (M. Cherif Bassiouni, ed., 2008). Bassiouni M. Cherif, The Islamic Criminal Justice System (London: Oceana Publications, 1982). Bassiouni M. Cherif, The Shariah and Islamic Criminal Justice in the Time of War and Peace (Cambridge University Press, Cambridge, 2014). Bassiouni M. Cherif, The Shariah and Islamic Criminal Justice in the Time of War and Peace (Cambridge: Cambridge University Press, 2014). Bassiouni M. Cherif, The Subjects of International Criminal Law: Ratione Personae, in International Criminal Law, Vol. I (M. Cherif Bassiouni, ed. 2008) pp. 41-70. Beattie J. M., Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001). Beccaria Cesare, On Crimes and Punishments (1764). Beccaria Il caso. A 250 anni dalla pubblicazione del «Dei delitti e delle pene (Società editrice il Mulino, 2016). Bekker P. M., ‘The undefended accused/defendant: a brief overview of the development of the American, American Indian and South African Positions’ XXIV CILSA (1991), pp.151-188. Bell Richard, Introduction to the Quran (Edinburgh University Press, 1955). Bellamy R (ed) C Beccaria, On Crimes and Punishments, (1995). Benjamin Ferencz, International Criminal Court (2 vols. 1980). Bennoune Karima, ‘As-Salamu ‘Alykum? Humanitarian Law in Islamic Jurisprudence’, 15 Michigan Journal of International Law (1994), pp.605-643. Benny Philip Berger, Criminal Code of the Jews: According to the Talmud (New Jersey: The Law Book Exchange, LTD., 2005). Bentley D., English Criminal Justice in the Nineteenth Century (London: Bloomsbury Academic, 1998).

716

Bibliography

Bigi Giulia, ‘Joint Criminal Enterprise in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the Prosecution of Senior Political and Military Leaders: The Krajišnik Case’ 14 Max Planck United Nations Yearbook (2010), pp.51-83. Bloxham Donald, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (2001). Boerefijn Ineke, ‘Towards a Strong System of Supervision: The Human Rights Committee’s Role in Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights’, Human Rights Quarterly 17.4 (1995) 766-793. Bonderman David, ‘Modernization and Changing Perceptions of Islamic Law,’ 81 Harvard Law Review (1968)), pp.1169-95. Boot Machteld, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subjective Matter of Jurisdiction of the International Criminal Court (2002). Bosly Henri D., ‘Actualité du Tribunal International Pénal’, 1-2 h’s.4 Les Droit de Lowain 3 (1995). Bosworth-Smith R, Mohammad and Mohammadanism (London, 1889). Bosworth-Smith, R., Mohammad and Mohammadanism (London, 1889). Boyle James D.A., ed., Critical Legal Studies (1992). Boyle James, ‘Is Subjectivity Possible? The Postmodern Subject in Legal Theory’, 62 University of Colorado Law Review 489 (1991). Breiner, Bert. “Shari`ah and Religious Pluralism,” in Religion, Law and Society. Brevli, Mahmud, Islam and the Contemporary Faiths (Karachi, 1965). Brevli Mahmud, Islam and the Contemporary Faiths (1965). Browne Laurence E., The Eclipse of Christianity in Asia: From the Time of Muhammad till the Fourteenth Century (Cambridge: Cambridge University Press, 1933). Browning Christopher, The path to genocide: Essays on Launching the Final Solution (2002). Browning Don (eds.), Universalism vs. Relativism: Making Moral Judgments in a Changing, Pluralistic, and Threatening World (Rowman and Littlefield Publishers, United Kingdom, 2006). Brownlie Ian, Principles of Public International Law (Oxford: Clarendon Press, 5th ed., 1998), pp.303-307. Brownlie, Ian, International Law and the Use of Force by States (Oxford: Oxford University Press, 1996). Brunelli David, ‘Pena e moralismo penale nella rilettura di Cesare Beccaria’, Archivio penale (2015), pp.41–53. Burgorgue-Larsen Laurence (ed.), La repression internationale du genocide rwandais, (2003). Burns Peter, ‘An International Criminal Tribunal: The Difficult Union of Principle and Politics’, 5Criminal Law Forum 341 (1994). Cadoppi Alberto, ‘Perchè il cittadino possa '...esattamente calcolare gl'inconvenienti di un misfatto' Attualità e limiti del pensiero di Beccaria in tema di legalità’, L'Indice penale (2015), pp.569–598.

Corpus Juris of Islamic International Criminal Justice

717

Caenegem R. C. van, European Law in the Past and the Future: Unity and Diversity over Two Millennia (Cambridge: Cambridge University Press, 2001). Cambridge University Islamic Society available at http://www.isoc.co.uk /islam/civilisation/ (20 December 2016). Cammack Mark, ‘Islamic Law and Crime in Contemporary Courts’, 4 (1) Berkeley J. Middle E. & Islamic L. 1 (2011), pp.1-15. Campen S.I.P., The Quest for Security: Some Aspects of Netherlands Foreign Policy 1945–1950 (Springer-Science Bossiness Media, B.V., 1957). Carden S. Richard and Nadya Leila Sadat, ‘The New International Criminal Court: An Uneasy Revolution,’ 88 Georgetown Law Journal 581 (2000). Cassese Antonio (ed.), The New Humanitarian Law of Armed Conflict (Naples: Editoriale Scientifica, 1979). Cassese Antonio, ‘First Annual Report of the ICTY’, Yearbook of International Law Commission (1994). Cassese Antonio, International Criminal Law (Oxford: Oxford University Press, 2ed., ed., 2008). Chibli Mallat, The Renewal of Islamic Law, Muhammad Baqer as-Sadr, Najaf and the Shi'i International (Cambridge, University Press, 1995). Chrétien Jean Pierre, Le défi de l’ethnisme: Rwanda et Buruni, 1990 - 1996, (1997). Christoffersen Lisbet, H. R Iverson, H. Petersen, H and M. Warburg, (ed.), Religion in the 21st Century : Challenges and Transformations (London: Ashgate, 2010). Cockayne James, ‘Islam and International Humanitarian Law: From a Clash to a Conversation between Civilizations’, 84 International Review of the Red Cross (2002), pp.597- 626. Costas Douzinas, Peter Goodrich and Yifat Hachamovitch, Politics, Post Modernity and Critical Legal Studies (1994). Coulson N. J., ‘The State and the Individual in Islamic Law’, Vol. 6, No. the International and Comparative Law Quarterly (1957), pp.49-60. Coulson N.J., Islamic Surveys: A History of Islamic Law (Edinburgh University Press, 1964). Coulson N.J., Succession in the Muslim Family (Cambridge: Cambridge University Press (1971). Coulson, N.J, Conflict and Tensions in Islamic Jurisprudence (University of Chicago Press, 1969). Courbage Youssef, and Philippe Fargues, Christians and Jews under Islam (New York: St. Martin’s Press, 1997). Cravens Sarah M. R., In Good Conscience: Expressions of Judicial Conscience in Federal Appellate Opinions (University of Akron School of Law, Akron Law Publications, 2012), pp.1-67. Crawford James, ‘Prospects for an International Criminal Court’, 48 Current Legal Problems 303 (1995). Crawford James, ‘The ILC’s Draft Statute for an International Criminal Tribunal’, 88 American Journal of International Law140 (1994).

718

Bibliography

Cripiani Don., Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (United Kingdom: Ashgate Publishing, 2009). Cryer Robert, ‘The Doctrinal Foundations of International Criminalization,’ in International Criminal Law, Vol. 1 (M. Cherif Bassiouni, ed., 2008) pp.107128. Cryer Robert, Prosecuting International Crimes, Selectivity and the International Criminal Law Regime (Cambridge University Press, Cambridge, 2005). Curti Sabrina (a cura di), Rileggere dei "Dei delitti e delle pene" di Cesare Beccaria (Wolters Kluwer, 2015). Dautricourt Jean, The Concept of International Criminal Court Jurisdiction í Definition and Limitations of the Subject, in1 A Treatise on International Criminal Law 656 (M.C. Bassiouni & V.P. Nanda, eds., 1975). Decock Wim, ‘The Judge’s Conscience and the Protection of the Criminal Defendant: Moral Safeguards against Judicial Arbitrariness’, pp.69-94. Deina Abdelkader, Social Justice in Islam. Herndon, VA: IIIT, 2000. Derrida J., Force of Law: Mystical Foundation of Authority, 11 Cardozo Law Review 919 (1990). Detmold M.J., The Unity of Law And Morality: A Refutation Of Legal Positivism (1984). Dickson Julie, Evaluation and Legal Theory (2001). Dinstein Yoram, ‘International Criminal Law’, 20 Israel Law Review 206 (1985). Diwan Paras, Muslim Law in Modern India (Galabad, 1977). Doi Abdur Rahman I., Shariah: the Islamic Law (Kuala Lumpur: A.S. Noordeen, 1984). Donnelly J., ‘Human Rights and Human Dignity: An Analytic Critique of NonWestern Conceptions of Human Rights’, 76 American Political Science Review (1982). Donner Fred M., Muhammad and the Believers (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2010). Draper Gerald I. A. D., ‘The Modern Pattern of War Criminality’, 6 Israel Yearbook on Human Rights (1976). Duffett J., Against the Crime of Silence (New York, London, 1968). Dutton, Yasin, ‘Review of John Burton, The Sources of Islamic Law: Islamic Theories of Abrogation’ in Yasin, The Origins of Islamic Law. Du‫܊‬u Mircea, Vespasian V. Pella (1897-1952): Founder of International Criminal law, Promoter of the Unification of the Criminal Law, Architect of the International Criminal Justice (Universul Juridic, Bucharest, 2012). Dworkin Ronald, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986). Edge Ian (ed.), Islamic Law and Legal History (Dartmouth, 1996). Ehard Hans, ‘The Nuremberg Trial against the Major War Criminals and International Law,’ 33 American Journal of International Law 223 (1949). El-Ahdab Abdul Hamid, Arbitration with the Arab Countries (Denver, Boston, 1990).

Corpus Juris of Islamic International Criminal Justice

719

Elahi Maryam, 'The Rights of the Child Under Islamic Law: Prohibition of the Child Soldier', 19 (2), Columbia Human Rights Law Review (1987-1988), pp. 259-79. El-Awa, Mohammad, Punishment in Islamic Law (Indianapolis: American Trust Publications, 1982). Elshtain Jean Bethke ‘Concrete Levels of Being and Their Political Implications’ in Don Browning (eds.), Universalism vs. Relativism. Emil L., ‘Fackenheim, Kant and Radical Evil’, in Immanuel Kant: Critical Assessments. 3 ed., Chadwick Ruth. (Routledge, 1992), 259-273. Engelhardt Jordan, The Pre-eminent State: National Dominance in the Effort to Try Saddam Hussein, Cornell Journal of International Law, (2009). Eric David, Principes de Droit des Conflits Armés (2nd ed. 1999). Ewald F., ‘Unger’s Philosophy: A Critical Legal Study’ 5 Yale Law Journal 665(1988). Fadl Khaled Abou El, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001). Fadl Khaled Abou El, ‘Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries’, 1,2 Islamic Law and Society (August 1994), pp.141-187. Fadl Khaled Abou El, Speaking in God’s Name: Islamic Law, Authority and Women (2001), pp. 264-268. Falk Richard, Human Rights and State Sovereignty (1981). Falk Richard, Slouching Toward a Palestinian Holocaust, www.transnational.org/Area…/Falk_Palestine Genocide.html, 20 October 2010. H. Ball, Prosecuting War Crimes and Genocide: The Twentieth Century Experience (1999). Farrar Salim, The role of the accused in English and Islamic criminal justice (University of Warwick: School of Law, Disertation,1999). Fein Bruce, ‘Hillary Clinton’s 5 lies about Syria, Terror Threat’, The Washington Times (25 October, 2016), available at http://www.washingtontimes.com/staff /bruce-fein/. Feldman Noah, The Fall and Rise of the Islamic State (Oxford: Princeton University Press, 2008). Fenrick W.J., ‘Should Crimes Against Humanity Replace War Crimes?’, 57 Columbia Journal of Transnational Law, 767 (1999). Ferencz Benjamin, An International Criminal Code and Court: Why They Stand and Where They’re Going, 30 Columbia Journal of Transnational Law 375 (1992). Finbarr McAuley and J. Pail McCutcheon, Criminal Liability (Round Hall Sweet and Maxwell, 2000). Finch George A., ‘Draft Statute for an International Court’, editorial comment 46 American Journal of International Law (1952), pp.89-98. Finch George Augustus, ‘The Nuremberg Trial and International Law,’ 41 American Journal of International Law 20 (1947). Finch George, ‘Draft Statute for an International Criminal Court’, 46 American Journal of International Law 67(1990).

720

Bibliography

Finnis John (ed.), Natural Law (1991). Finnis John, Aquinas: Moral, Political and Legal Theory (1998). Finnis John, Fundamentals of Ethics, (1985). Finnis John, Natural Law and Natural Rights (1980). Fitzgerald P. J., Voluntary and Involuntary Acts in A.G. Guest Ed.), Oxford Essays in Jurisprudence (Oxford. Oxford University Press, 1961). Fitzmaurice G., ‘The General Principles of International Law”, 92 Recueil des Cours de l’Académie de Droit International1(1957-II), pp.5-222. Fitzpatrick P. ed., Dangerous Supplements: Resistance and Renewal in Jurisprudence. (Durham, N.C.: Duke University Press, 1991). Ford Christopher A., ‘Siyar-ization and Its Discontents: International Law and Islam’s Constitutional Crisis’ 30 Texas International Law Journal (1995), pp. 499-533. Forte David F, Studies in Islamic Law: Classical and Contemporary Applications (Austin and Winfield, 2000). Forte, David F, ’Lost, Strayed, or Stolen: Chattel Recovery in Heer, Islamic Law’, pp. 97–115. Fournet, C., ‘The Actus Reus of Genocide in the Croatia v. Serbia Judgment: Between Legality and Acceptability,’ 28 (4) Leiden Journal of International Law (2015). Freamon Bernard K., ‘Slavery, freedom, and the doctrine of consensus in Islamic jurisprudence’, Harvard Human Rights Journal 11 (Spring, 1998), pp.1-64. Frick Marie-Luisa and Andreas Th. Müller, Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives (Leiden. Boston, Martinus Nijhoff Publishers, 2013). Friedlander Robert A., ‘The Foundations of International Criminal Law: A Present-Day Inquiry,’ 15 Case Western Reserve Journal of International Law (1985). Fuller Lon Luvios, The Morality Of Law (2nd ed., 1969). Fuller S., Playing Without a Full Deck: Scientific Realism and the Cognitive Limits of Legal Theory, 97 Yale Law Journal 549 (1988). Fyzee Asaf A. A., Outlines of Muhammadan Law (Delhi: Oxford University Press, 4th ed., 1978). Gaeta Paola, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, 7 (2) Journal of International Criminal Justice (2009). Gavison Ruth, ed., Legal Philosophy: The Influence of H.L.A. Hart (1987). George Robert P., ed., The Autonomy Of Law: Essays On Legal Positivism (1995). George Robert P., Natural Law Theory: Contemporary Essays (1994). Getos Kalac Anna-Maria, Hans Jörg Albercht, Michael Kilchling (eds.), Mapping the Criminological Landscape of the Balkans: A survery on Criminology and Crime with an Expedition itno the Criminal Landscape of the Balkans (Max Plancksociety for the Advancennebt of Scinece, 2014). Gibb H.A.R, Mohammadanism: An Historical Survey (London, New York, Toronto, 1949). Gibb Hamilton A., Mohammadanism: An Historical Survey, 2nd ed. (Oxford University Press, 1953), pp. 4-22.

Corpus Juris of Islamic International Criminal Justice

721

Gibbon Edward, The History of the Decline and Fall of the Roman Empire, Vol. II (New York, 1857). Gideon Boas and William A. Schabas (eds.), International Criminal Law Developments in the Case Law of the ICTY (2005). Giunta Fausto, ‘Addio Beccaria?’, La giustizia penale [1930], (2014), pp.248– 256. Glueck Sheldon, ‘By What Tribunal Shall War Offenders Be Tried?,’ 56 Harvard Law Review 1059 (1942-3). Glueck Sheldon, The Nuremberg Trial and Aggressive War (New York, 1946). Goddin Abdullah, Decision by Majority in Islamic Law (1975). Gollancz Victor, Capital Punishment: The Heart of the Matter (London: The Camelot Press, Southampton, 1955). Goodrich Peter, Languages of Law (1990). Goodrich Peter, Reading the Law: A Critical Introduction to Legal Method and Techniques (1986). Gosnell C., ‘The Request for an Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan?’, 6 JICJ (2008). Green L.C., An International Criminal Code í Now?, 5 Dalhousie Law Journal 560 (1976). Greve Vagn, ‘Sheep or Wolves’ 4 European Journal of Crime, Criminal Law and Criminal Justice (2005), pp.515-552. Guillaume Alfred, The Traditions of Islam: An Introduction to the Study of the Hadith Literature (Oxford, 1924). Gummow W. M. C., Change and Continuity: Statute, Equity, and Federalism Contributors (Oxford: Oxford University Press, 1999). Haas Jacob De, History Of Palestine - The Last Two Thousand Years (USA: Macmillan, 1934). Hacker P.M.S. and J. Raz, eds., Law, Morality and Society: Essays in Honour of H.L.A. Hart (1977). Hakim Khalifa Abdul, Fundamental Human Rights (1952). Haleem M Abdel (ed.), Criminal Justice in Islam: Judicial Procedure in the Shariah (2000). Haleem Muhammad Abdel / Adel Omar Sherif/Kate Daniels (eds.), Criminal Justice in Islam – Judicial Procedure in the Shariah (New York: Palgrave Macmillan, 2003). Haleem Muhammad Abdel, Omar Sherif Adel, and Daniels Kate (eds.) Criminal Justice in Islam: Judicial Procedure in the Shari‫ޏ‬a (London. New York: I. B. Tauris, 2003), pp17-34. Halla Wael B., On Inductive Corroboration, Probability and Certainty in Sunni Legal Thought in Heer Nicholas, Islamic Law and Jurisprudence (London: University of Washington Press), pp. 5-51. Hallaq Wael B., Authority, Continuity and Change in Islamic Law (Cambridge University Press, 2001). Hallaq Wael B., A History of Islamic Legal Theories (Cambridge University Press, 1997).

722

Bibliography

Hallaq Wael B., Model Shurut Works and the Dialectic of Doctrine and Practice, Islamic Law and Society 2,2 (1995): 109-134. Hallaq Wael, ‘The Quran and the Rule of Law in Islam,’ Columbia University, Middle Eastern, South Asian, and African Studies (2013), pp.1-27. Hamdy Tawfik, Ahmed, The Concept of Crime in the Afghan Criminal Justice System: The Paradox between Secular, Tradition and Islamic Law: A Viewpoint of an International Practitioner, International Criminal Law Review, Vol. 9, Number 4, 2009, pp. 667-687. Hamidullah Muhammad, The Battlefields of the Prophet Muhammad (England, 1953). Hamidullah Muhammad., Muslim Conduct of State (1945). Hamidullah, Muhammad, The First Written Constitution in the World (2nd. edn., Lahore, 1968). Hammad Ahmad Zaki, Islamic Law: Understanding Juristic Differences (Indianapolis: American Trust Publications, 1992). Hamoudi Haider Ala, ‘The Death of Islamic Law’, 38 Georgia Journal of International Law & Comparative Law (2010), pp.293-337. Harcourt Bernard E., ‘Dei delitti e delle pene' di Beccaria: uno strumento di riflessione sulla storia delle fondamenta del diritto penale moderno’ Criminalia (2013), pp.149–178. Harcourt Bernard E., Beccaria's 'On Crimes and Punishments': A Mirror on the History of the Foundations of Modern Criminal Law Coase –Sandor Institute for Law and Economics Working Paper, no.648 (2 D series), Public Law and Legal Theory Working Paper No 433 (2013), pp.1-22. Harris J. (ed.), Islam and International Relations (New York, 1965). Harris J.W., Legal Philosophies, 2nd ed. (1997). Harrris Proctor J., (ed.) Islam and International Relations (London: Pall Mall Press, 1965). Hart H.L.A., Essays in Jurisprudence and Philosophy (1985). Hart H.L.A., The Concept of Law, 2nd ed., (P.A. Bulloch and J. Raz, eds., 1994). Harvard Research on International Law: ‘Draft Convention on Jurisdiction with Respect to Crime’, 29 American Journal of International Law (1935), pp.439, 484-87. Hascall Susan C., Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice?, 4 Berkeley J. Middle E. & Islamic L. 35 (2011). Hassouna Hussein A., The League of Arab States and Relational Disputes: A Study of Middle East Conflicts (Oceana Publications, 1975). Heer F., The Medieval World: Europe 1100-11550 (Transl. J. Sondheimer), (Mentor Books, 1986), pp. 255-256). Heyd, Uriel. Studies in Old Ottoman Criminal Law (Oxford, 1973). Hill, Enid. Mahkama! Studies in the Egyptian Legal System (London, 1979). Hirad Abtahi and Gideon Boas (eds.), The Dynamics of International Criminal Justice Ǧ Essays in Honour of Sir Richard May (2005). Holmes Oliver Wendell The Common Law (Boston: Little, Brown, 1923). Holt P.N.., K.S. Lambton, and B. Lewis (eds.), The Cambridge History of Islam, 2 vols. (Cambridge University Press, 1970).

Corpus Juris of Islamic International Criminal Justice

723

Holtman Robert B., The Napoleonic Revolution (Baton Rouge: Louisiana State University Press, 1981). http://pubman.mpdl.mpg.de/pubman/item/escidoc:1739547/component/escidoc :1739546/TOCtocDatei.pdf#bck:194 Hughes G., ‘Validity and the Basic Norm,’ 59 California Law Review 695 (1971). Huntington Cairns, Plato’s Theory of Law, 56 Harvard Law Review 559-587 (1942). Hurd Heidi, ‘Challenging Authority’,100 Yale Law Journal 1611 (1991). Hurlock William L., ‘The International Court of Justice: Effectively Providing a Long Overdue Remedy for Ending State-Sponsored Genocide (BosniaHerzegovina v. Yugoslavia)’, 12 American University Journal of International Law and Policy 299 (1997). Hussein Farah, ‘A Functional Response to International Crime: An International Justice Commission’, St. John’s Law Review (1996). Ibrahim Saeed Hasan., ‘Basic Principles of Criminal Procedure under Islamic Shariah: Judicial Powers in Criminal Cases’ in Muhammad Abdel Haleem, Omar Sherif Adel, and Kate Daniels (eds.) Criminal Justice in Islam: Judicial Procedure in the Shariҵa (London. New York: I. B. Tauris, 2003), pp.17-34. India Ministry of Law, The Unrepeated Central Acts with Chronological Table and Index, 2nd ed., vol. 3, From 1882 to 1897, both inclusive (Delhi: Manager of Publications, 1950), 303. International Military Tribunal, Trial of the Major War Criminals before International Military Tribunal in Nuremberg (1947). Iqbal Afzal, Diplomacy in Islam, An Essay on the Art of Negotiation as Conceived and Developed by the Prophet of Islam (Lahore, 1965). Islamic Law and Human Rights: An analysis of the right to fair trial and due process (pt. 1) (2012), available at http://www.newcivilisation.com/home/ideas -philosophy/islamic-law-and-human-rights-an-analysis-of-the-right-to-fair-trialand-due-process-pt-1/, 22 January 2017. Jackson Robert, H, ‘Forward the Nürenberg Trial Becomes a Historical Precedent,’ 20 Temple Law Quarterly (1946-7). Jacques Castonguay, Les Casques Bleus au Rwanda,(1998). Jamison Sandra L., ‘A Permanent International Criminal Court: A Proposal that Overcomes Past Objections’, 23 Denver International Law and Policy 2 (1995). Janis Mark W. (ed.), International Courts for the Twenty-First Century (1992). Jihad and the Islamic Law of War (Jordan: the royal aal al-Bayt Institute for Islamic Thought 2009), pp.1- 76. Johansen Baber, Contingency in Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Netherlands: Brill, 1998). John A. Berry & Carol Pott Berry, Genocide in Rwanda (1999). Johnson James Turner and John Kelsay, Cross, Crescent, and Sword: The Justification and Limitation of War in Western and Islamic Tradition (Westport CT: Greenwood Press, 1990). Johnson Toni, The Organization of the Islamic Conference, (June 29, 2010), available at http://www.cfr.org/religion/organization-islamic-conference/p22563.

724

Bibliography

Jori Mario (ed.), Legal Positivism (1992). Jullundri L.A.A.K., The Glorious Holy Quran (Pakistan, 1962). Kairys David, ed., The Politics of Law: A Progressive Critique (1982). Kamali Mohammad Hashim, ‘The Right to Personal Safety (Haqq al-Amn) and the Principle of Legality in Islamic Sharia,’ in: Muhammad Abdel Haleem, Criminal Justice in Islam,pp.57-96. Kamali Mohammad Hashim, Middle Path of Moderation in Islam: The Quranic Principle of Wasatiyyah (Oxford: Oxford University Press, 1915). Kamali Mohammad Hashim, Principles of Islamic Jurisprudence (Cambridge: Islamic Society, 1991). Kant Immanuel, ‘Religion within the Limits of Reason Alone’, in Religion and Rational Theology, ed. and transl. Allen Wood and George di Giovanni (Cambridge University Press, 1996). Kant Immanuel, Moral Law: Groundwork of the Metaphysics of Morals (Translated by H. J. Paton, New York, Routledge, 1948). Kant Immanuel, Religion within the Limits of Bare Reason (1795) in Launched by Jonathan Bennett, available at http://www.earlymoderntexts.com/pdfs/kant 1795part4.pdf (Accessed 7 June, 2017). Katzenstein Suzanne, ‘In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century’, 55 (1) Harvard International Law Journal (2014), pp.151-209. Kelly M., ‘The Tricky Nature of Proving Genocide Against Saddam Hussein before the Iraqi Special Tribunal,’ 38 (3) Cornell international law journal (2005). Kelman Mark, A Guide to Critical Legal Studies (1987). Kelsay John, ‘Islam and the Distinction between Combatants and Non – Combatants’ in James Turner Johnson and John Kelsay. Kelsen Hans, ‘Will the Judgement of the Nürenberg Trial Constitute a Precedent in International Law,’ 1 International Law Quarterly 153 (1947). Kelsen Hans, Pure Theory of Law (transl. Maz Knight, 1967). Kelsen Hans, What is Justice? Justice, Law and Politics in the Mirror of Science (1957). Kennedy D, ‘Law and Ideology’ 5 Tikkun (1988). Kent Greenawalt, Statutory and Common Law Interpretation (Oxford: Oxford University Press, 2013). Kepel Gilles, Jihad: The Trail of Political Islam (Translated by Anthony F. Roberts from French) (Cambridge: Harvard University Press, 2002), pp.106-135. Khadduri Majd, ‘Nature and sources of Islamic Law’ 22 (1) the George Washington Law Review (1953), pp.2-23. Khadduri Majid and Herbert J. Liebesny (eds.), Law in the Middle East, Vol. I: Origin and Development of Islamic Law (With a foreword by Robert H. Jackson), (1955). Khadduri Majid, Major Middle Eastern Problems in International Law (1972). Khadduri Majid, (ed.), (transl.) The Islamic Law of Nations: Shaybani’s Siyar (Transl. with an introduction, notes, and appendices, Baltimore, 1966).

Corpus Juris of Islamic International Criminal Justice

725

Khadduri Majid, (ed.), ‘Islam and the Modern Law of Nations,’ 50 American Journal of International Law (1956), pp. 558-572. Khadduri Majid, (ed.), War and Peace in the Law of Islam (Baltimore: The ‘Johan Hopkins Press, 1955). Khadduri Majid, ‘The Islamic Theory of International Relations and its Contemporary Relevance in Proctor’ in Harris, Islam and International Relations, pp.24-39. Khalafalla Ahmad Muhammed, ‘Islamic Law, Civilization and Human Rights’, 12 Egyptian Review of International Law (1956). Khalafalla Ahmad, Muhammed, ‘Islamic Law, Civilization and Human Rights,’ 12 Egyptian Review of International Law (1956). Khaled Abou El Fadl, ‘Political Crime in Islamic Jurisprudence and Western Legal History,’ 4(1) 1 UC Davis Journal of International Law and Politic (Winter 1998). Khalifa Abdul Hakim, ‘The Natural Law in the Moslem Tradition’, 5 Natural Law Institute Proceedings (1951). Khalifa Abdul Hakim, Fundamental Human Rights (Lahore, 1952). Khan Mainul Ahsan, Human Rights in the Muslim World: Fundamentalism, Constitutionalism and International Politics (Durham, NC: Carolina Academic Press, 2003). Khuda Bukhush, S., Contribution to the History of Islamic Civilization (Calcutta, 1950). King Peter, Crime, Justice and Discretion in England, 1740-1820 (Oxford: Oxford University Press, 2000). Kirsch Philippe, ‘Applying the Principles of Nuremberg in the International Criminal Court’, 6 (3) Washington University Global Studies Law Review Volume Symposium—Judgment at Nuremberg (2007). Klein Fannie & Wilkes Daniel, United Nations Draft Statute for an International Criminal Court: An American Evaluation, in International Criminal Law526 (Gerhard O.W. Mueller & Edward M. Wise, eds., 1965). Kos-Rabcewicz-Zubrowski Louis, ‘The Creation of an International Criminal Court’, in Bassiouni, International Terrorism. Kristen Lorenz, Les Quarante Codes des Francais. Composés des Charte de 1830, Code Civil (Berlin: Deutschland, 1845). Kuhn Arthur, K, ‘International Criminal Jurisdiction,’ 41 American Journal of International Law 430 (1947). Kurdi Abdulrahman Abdukadir, The Islamic State: A Study based on Islamic Holy Constitution (New York, Mansell Publishing Limited, 1984). Kusha, Hamid R.The Sacred Law of Islam: A Case Study of Women's Treatment in the Islamic Republic of Iran࣠'s Criminal Justice System (Aldershot, U.K., 2003). La Création d’une Juridiction Pénale Internationale et la Coopération Internationale en Matière Pénale, 45 Revue Internationale de Droit Penale 455 (1974). Lampe Gerald E. (ed.) Justice and Human Rights in Islamic Law (Washington: International Law Institute, 1997.

726

Bibliography

Langaroody Muhammad Jafar Jafary, Islamic Law (in Persian Language, Teheran, 1978). Larizza Silvia, ‘Cesare Beccaria e il principio di stretta necessità del diritto penale’, Rivista italiana di diritto e procedura penale (2014), pp.2076–2101. Leghari Noor ul-Amin, ‘The Concept of Justice and Human Rights in Islam’, Lampe, Justice and Human Rights in Islamic Law. Liebesny, Herbert J.The Law of the Near and Middle East (Albany, N.Y., 1975) Lippman Matthew,, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York, Westport, Connecticut, London, 1988). Lippman Matthew, ‘Genocide’ in Bassiouni, I International Criminal Law (2008), pp. 405-455. Lippman Matthew, ‘Islamic Criminal Law and Procedure: Religious Fundamentalism versus Modern Law’, 12 Boston College International and Comparative Law (1989). Lippman, Matthew, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York, Westport, Connecticut, London, 1988). Lipstein, Kurt. ’Conclusions’, in The Reception of Foreign Law in Turkey, 9 International Social Science Bulletin (UNESCO), (1957). Lombardi Clark B. ‘Islamic Law as a Source of Constitutional Law in Egypt,’ 37 Columbia Journal of Transnational Law (1998), pp. 81-123. Lombardi Clark B. and Nathan Brown, ‘Do Constitutions Requiring Adherence to Shari`a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law,’ 21 American University International Law Review (2006), pp. 379-435. Lombardi Clark B. and Nathan Brown, ‘The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No.8 of Judicial Year 9 (May 18, 1996)’, 21 American University International Law Review (2006), pp. 437-460. Lombardi Clark B., ‘Islamic Law in the Jurisprudence of the International Court of Justice: An Analysis,’ 8 (1) Chicago Journal of International Law (2007), pp. 85-118. Lombois Claude, Droit Pénal International (1971 and 1979). Lombroso Cesare, L'uomo delinquente (1878). Ludwig von Bar, Das Internationale Private- und Strafrecht, (1862). Luper-Foy Steven, ‘Introduction: Global Distributive Justice’ in Steven Luper-Foy (ed.), Problems of International Justice (London: Westview Press, 1988), pp.124. Luper-Foy Steven, Problems of International Justice (Boulder and London: Westview Press, 1988). Macdonald D.B., Development of Muslim Theology, Jurisprudence, and Constitutional Theory (1905). Macdonald Duncan B., Development of Muslim Theology, Jurisprudence and Constitutional Theory (Lahore: The premier Book House, 1972). MacIntyre Alasdair, After Virtue: A Study in Moral Theory, (1982).

Corpus Juris of Islamic International Criminal Justice

727

MacQueen Hector L., Common Law and Feudal Society in Medieval Scotland (Edinburgh: Edinburgh University Press, 1993). Maged Adel, ‘Arab and Islamic Shariah Perspectives on the Current System of International Criminal Justice’ International Criminal Law Review 8 (2008) 477–507. MaতmaৢƗnƯ, ৡubতƯ. Al-aw‫ڲ‬Ɨҵ al-tashrƯҵƯyah fƯ al-duwal al- ҵArabƯyah (The writing of legislation in the Arab states) (Beirut, 1957). Makdisi John, ‘An Inquiry into Islamic influences during the Formative period of the Common Law’ in Nicholas Heer, Islamic Law and Jurisprudence (London: University of Washington Press), pp. 135-146. Malekian Farhad, ‘Armenian Genocide and the Questions of Responsibility of the Turkish Government,’ House of Commons Conference on the Armenian Genocide, Armenian Solidarity, British-Armenian All-Party Parliamentary Group, No Security Publication (2007), pp. 31-9. Malekian Farhad, ‘Comparative Substantive International Criminal Justice’, in Ronald Slye (ed.),The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (2017), pp.10-44. Malekian Farhad, ‘Emasculating the Philosophy of International Criminal Justice in the Iraqi Special Tribunal’, Cornell International Law Journal, 58/5 (2005), pp. 675-725. Malekian Farhad, ‘International Criminal Responsibility: International Criminal Responsibility of Individuals’ in M. Cherif Bassiouni, International Criminal Law, Vol. Crimes (2ed., ed., New York: Transnational Publishers, 1999). Malekian Farhad, ‘Mutilating the Philosophy of Justice in the Time of Armed Conflicts’, Contemporary Journal of International Criminal Law (2007). Malekian Farhad and Kerstin Nordlöf, - - ‘International Legal Status of Children’ in the Encyclopaedia of Criminology & Criminal Justice(United States: WileyBlackwell (5 volumes, 2013), vol.III, pp.1173-1178. Malekian Farhad, ‘The Canon of Love against the Use of Force in Islamic and Public International Law: Part II: The Anatomy of Love Against Violations,’ 15 International Criminal Law Review, 2015), pp. 861-895. Malekian Farhad, ‘The Canon of Love against the Use of Force in Islamic and Public International Law: Part I: The Chamber of Love within Legal Discipline,’ 15 International Criminal Law Review, 2015), pp. 591-628. Malekian Farhad, ‘The Child as an Autonomous Subject of Justice’ in Farhad Malekian, Kerstin Nordlöf, Sovereignty of Children in Law (Cambridge: Cambridge Scholars Publishing, 2012), pp.2-55. Malekian Farhad, ‘The Functions of International Criminal Law and the Problem of Positivism and Neutralism Philosophy’, Contemporary Journal of International Criminal Law (2007). Malekian Farhad, ‘The Heaven of Justice with Love,’ The Journal of the Henry Martyn Institute (2017), pp.5-29. Malekian Farhad, ‘The Homogeneity of International Criminal Court with Islamic Jurisprudence,’ 9 (4) International Criminal Law Review (2009), pp. 595-621. Malekian Farhad, ‘The Laws Governing Crimes against Women Constituting Obligatio Erga Omnes’ in David Wingeate Pike.

728

Bibliography

Malekian Farhad, Condemning the Use of Force in the Gulf Crisis (Almqvist & Wiksell International, 1th. ed.1992, 2d. ed.,1994,). Malekian Farhad, Kerstin Nordlöf, Confessing the International Rights of Children: The Basic documents with Analysis (Cambridge: Cambridge Scholars Publishing, 2012). Malekian Farhad, Documents on the Principles of International Human Rights (2007). Malekian Farhad, International Criminal Law: The Legal and Critical Analysis of International Crimes (2 vols. 1991). Malekian Farhad, International Criminal Responsibility of States: A Study on the Evolution of International Responsibility of States with particular Emphasis on the Concept of Crime and Criminal Responsibility (Stockholm, 1985). Malekian Farhad, International Criminal Responsibility, in International Criminal Law 155 (M. Cherif Bassiouni, ed., 1999). Malekian Farhad, Judgments of Love in Criminal Justice (Germany: Springer: 2017). Malekian Farhad, Jurisprudence of International Criminal Justice (Introduction by Professor Benjamin B. Ferencz, the former Prosecutor of the Nuremberg Tribunal (Cambridge: Cambridge Scholars Publishing, 2014). Malekian Farhad, Principles of International Criminal Law: A Comparative Search (Netherlands: Brill, 2011). Malekian Farhad, Principles of Islamic International Criminal Law: A Comparative Search (Netherlands: Brill & Nijhoff, 2011). Malekian Farhad, Prohibition Governing Child Soldiers Constituting an Integral Part of Jus Cogens and Obligatio Erga Omnes, XVII World Congress of the International Association of Youth and Family Judges and Magistrates, Belfast, Northern Ireland, 27 August – 2 September (2006). Malekian Farhad, Kerstin Nordlöf, Prohibition of Sexual Exploitation of Children Constituting Obligation Erga Omnes (Cambridge: Cambridge Scholars Publishing, 2013). Malekian Farhad, System of International Law: Formation, Treaties, Responsibility (Uppsala, 1987). Malekian Farhad, The Concept of Islamic International Criminal Law, A Comparative Study (1994). Malekian Farhad, The Miserable Wedding of Naturalism into Positivism, 2 ID EST Journal (2009). Malekian Farhad, The Monopolization of International Criminal Law in the United Nations, A Jurisprudential Approach (1st ed., 1993), (2nd ed., 1995). Malekian Farhad, Kerstin Nordlöf, The Sovereignty of Children in Law (Cambridge: Cambridge Scholars Publishing, 2012). Malekian Farhad., ‘Islamic Law Justice Systems’ in Albanese, vol.III vol., pp.1220-1225. Manacorda Stefano, ‘Cesare Beccaria e la pena dell'ergastolo’, Jus (2015), pp.165–182. Marinucci Giorgio, ‘Beccaria penalista, nostro contemporaneo’, Rivista italiana di diritto e procedura penale (2014), pp.2025–2042.

Corpus Juris of Islamic International Criminal Justice

729

Matthew Lippman,, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York, Westport, Connecticut, London, 1988). Maududi, A., Human Rights in Islam (1977). Maududi, Sayyid Abul A’la., Islamic law and Constitution (7th ed. 1980). Mawdudi Abdul A’la, Human Rights in Islam (Leicester, 1990). May Larry, Aggression and Crimes Against Peace (2008). May Richard and Marieke Wierda, ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, 37 Columbia Journal of Transnational (1999). Maydani, Riyad, “‫ޏ‬UqnjbƗt: Penal Law’, in Law in the Middle East, edited by Majid Khadduri and Herbert J. Liebesny (Washington, D.C., 1955), pp. 223– 235. McCaffrey Stephen C., ‘The Thirty-Seventh Session of the International Law Commission’ 80American Journal of International Law (1986). McCauley Finbarr and J. Paul McCutcheon, Criminal Liability (Dublin, Round Hall Sweet & Maxwell, 2000). McDonald Gabrielle Kirk, Olivia Swaak-Goldman, eds., Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, Documents 3 vols. (2002). Memoriam: Vespasian V. Pella 1897-1952’, 46 American Journal of International Law (1952). Mitchell David S., ‘The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine’, 15 Duke Journal of Comparative & International Law (2005), pp.219-57. Mohammad Ovey N., Muslim-Christian Relations: Past, Present, Future (UK: Wipf and Stock Publishers, 1999). Mohammadi Majid, Judicial Reform and Reorganization in 20th Century Iran: State-Building, Modernization and Islamization (New York: Routledge, 2008). Moinuddin Hasan, The Charter of the Islamic Conference and legal framework of economic cooperation among its member states : a study of the Charter, the General Agreement for Economic, Technical and Commercial Co-operation and the Agreement for Promotion, Protection and Guarantee of Investments among Member States of the OIC (Oxford: Clarendon Press, 1987). Mokhtar Ali, ‘Nullum Crimen, Nulla Poena, Sine Lege: Aspects and Prospects’, 26 Statute Law Review, pp. 41-55. Montet Edward, ‘La Propagande Chretienne et ses Adversaries Musulmans,’ Paris 1890. (Also in T.W. Arnold in ‘The Preaching of Islam,’ London 1913.) Montgomery W. Watt, Islam and the Integration of Society (London, 1961) pp.199-209. Montgomery W. Watt, The Faith and Practice of Al-Ghazali, translated from alMunqidh min al-DalƗl (London: George Allen and Unwin LTD, no year provided), available at http://www.ghazali.org/works/watt3.htm. Morgan-Foster Jason, ‘A New Perspective on the Universality Debate: Reverse Moderate Relativism in the Islamic Context’ 10 ILASA Journal of International & Comparative Law, pp.35-67.

730

Bibliography

Mosaffa Nasrin, ‘Does the Covenant on the Rights of the Child in Islam Provide Adequate Protection for Children Affected by Armed Conflicts?’ 8 (1) Muslim World Journal of Human Rights (2011), pp.0-19. Available at https://www. degruyter.com/downloadpdf/j/mwjhr.2011.8.issue-1/1554-4419.1220/1554-4419 .1220.pdf. Moulavi Cheragh Ali, A Critical Exposition of the Popular Jihad (Calcutta, 1988). Muchnik Pablo, Kant’s Theory of Evil: An Essay on the Dangers of Self-love and the Aperiodicity of History (Lexington Books, 2010). Mueller Gerhard O.W., ‘International Criminal Law: Civitas Maxima,’ 15 Case Western Reserve Journal of International Law (1985). Muhammad Ali, A brief Sketch of the Life of the Prophet of Islam (Lahore, 1928). Muhammad Ali, Islam or the Natural Religion of Man: A Brief Sketch of Its Principles as given in the Holy Quran, (Lahore, 1912). Muhammed Khalafalla Ahmad, ‘Islamic Law, Civilization and Human Rights,’ 12 Egyptian Review of International Law (1956). Muin Abdul Rahman Abdul, Witnesses in Islamic Law of Evidence (Pelanduk Publication: Selangor, 1999). Muqtedar M. A Khan, ‘What is Enlightenment? An Islamic Perspective’, 16 Journal of Religion & Society (2014). Murphy, Ray. El Zeidy, Mohamed M., ‘Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War’, International Criminal Law Review. Nadjma Yassari, (ed.), Changing God's Law: the Dynamics of Middle Eastern Family law (Farnham, Ashgate Publishers, 2016). Nadjma Yassari; Moller Lena-Maria; Gallala-Arndt Imen; (ed.), Parental Care and Best Interest of the Child in Muslim Countries (The Hague, T M Asser, 2016). Nasr Seyyed Hossein, Islamic Studies: Essays on Law and Society, the Sciences, and Philosophy and Sufism (Beirut: Librairie du Liban, 1967). Nawaz, M.K, The Doctrine of 'Jihad' in Islamic Legal Theory and Practice,8 The Indian Year Book of International Affairs (1959). Nazi Conspiracy & Aggression, Volume I, Chapter VII, Office of the United States Chief Counsel for Prosecution of Axis Criminality, United States Government Printing Office (Washington, 1946). Nelken David (ed.), Comparing Legal Cultures (London: Routledge, 1997). Newton M., ‘The Iraqi Special Tribunal: A Human rights Perspective,’ 38 (3) Cornell International Law Journal (2005), pp. 863-897. Nicholas Heer (ed.), Islamic Law and Jurisprudence, (Seattle, 1990). Nordlöf Kerstin, Argumentation i Nordisk Straffrätt (2013). Nordlöf Kerstin, see also Malekian, Confessing the International Rights of Children: The Basic documents with Analysis. Nordlöf Kerstin, see also Malekian, Prohibition of Sexual Exploitation of Children Constituting Obligation Erga Omnes. Nordlöf Kerstin, see also Malekian, The Sovereignty of Children in Law.

Corpus Juris of Islamic International Criminal Justice

731

Nordlöf Kerstin, Straffprocessuella Tvångsmedel: Gripande, Anhållande och Häktning (1987). Nordlöf Kerstin, Straffrättens Processer för Unga Lagöverträdare (1991). Nordlöf Kerstin, Unga Lagöverträdare i Social, Straff- och Processrätt (2005). Novak William J., The People's Welfare: Law and Regulation in NineteenthCentury America (Chapel Hill, NC: University of North Carolina Pres, 1996). Oba Abdulmumini Adebayo, ‘The Shariah Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction’, 52 (4) The American Journal of Comparative Law (2004), pp. 859-900. Oette Lutz (ed.) Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan, (London: Ashgate, 2011). Okon Etim E., ‘Hudud Punishments in Islamic Criminal Law’, 10 (14) European Scientific Journal (2014), pp.227-38. Oncescu Iulian, Europe as Viewed from the Margins An EastCentral European Perspective from World War in to the Cold War (Silvir Miloiu, 2007). Ortwein Bernard Michael II, ‘The Swedish Legal System: Introduction’, 13 IND. INT'L & COMP. L. REv., pp.405-45. Osiel J. Mark, ‘Obeying Orders: Atrocity, Military Discipline, and the Law of War’ 86 (5) California Law Review (1998), pp.939-1129. Osman,Abd-el-Malek al-Saleh, ‘The Right of the Individual to Personal Security in Islam’, in Bassiouni, the Islamic Criminal Justice System, pp. 55-90. Owaydhah Khalid A, ‘Justifications and Concept of Criminal Liability in Sahri’ah’, 3 (2) Humanities and Social Sciences Review (2014), pp.55-71. Patterson Dennis (ed.), Postmodernism and Law (1994). Pella V. Vespasian, La criminalité collective des états et le droit pénal de l'avenir, Bucarest : Imprimerie de l'état, (1925). Pella Vespasian V., Fonctions Pacificatrices du Droit Pénal Supranational et Fin du Système Traditionnel des Traités de Paix, Le Droit Internationale Public 1 (1947). Pella Vespasian V., La Guerre-Crime et les Criminels de Guerre (Paris, 1946). The International Association of Penal Law and the Safeguarding of Peace (Paris, 1947). Pella Vespasian V., Plan d’un Code Répressif Mondial, 6 Rewe International de Droit Pénal 1948 (1955). Pella Vespasian V., Plan for World Criminal Code, 17 Revue Internationale de Droit Penal (1946). Pella Vespasian, Revue Internationale de Droit Penal (1928). Pella Vespesian V., ‘Towards an International Criminal Court’, 44 American Journal of International Law 57 (1950). Penner Schiff, and Nobles, eds., Introduction to Jurisprudence and Legal Theory: Commentary and Materials (2002), pp. 1058-1065. Perelman C., The Idea of Justice and the Problem of Argument (1965). Peter Koenig, ‘War Propaganda: Syria’s Destruction by the Lies of the Western Media. Washington will Never let Go, Their Target is World Hegemony’, Global Research, available at http://www.globalresearch.ca/war-propaganda-

732

Bibliography

syrias-destruction-by-the-lies-of-the-western-media-washington-will-never-letgo-their-target-is-world-hegemony/5549508. Peters Rodulph, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005). Peters, Rudolph. Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century. (New York, 2006). Peterson Jeremy, ‘Unpacking Show Trials: Situating the Trial of Saddam Hussein’, 48 Harvard International Law Journal (2007). Philips Charles., Vacation Thought on Capital Punishments (London: William and Frederick G. Cash, 1857). Phillips Anthony, Ancient Isreal’s Criminal Law: A New Approach to the Decalogue (Oxford: Basil Backwell, 1970). Picotti Lorenzo (a cura di), Alle radici del diritto penale moderno: L´illuminismo di Cesare Beccaria di fronte al potere di punire (ESI, 2015). Pike David Wingeate, Crimes Against Women (New York: Nova Science Publishers, 2010). Pisani Mario, ‘Cesare Beccaria e la sua missione universale’, Rivista italiana di diritto e procedura penale (2014), pp.2043-2052. Pisani Mario, Cesare Beccaria (Giuffrè editore, 2015). Sergio Jacomella, L’ attualità del pensiero di Cesare Beccaria (per una giustizia penale più civile e più umana (Cenobio, 1964). Posner Richard A., Law and Legal Theory in England and America. Contributors (Oxford: Clarendon Press, 1996). Postema, Gerald J, Bentham and the Common Law Tradition (1986). Pound Roscoe, The Spirit of the Common Law (Publisher: Francestown, NH. Publication year, 1921). Proctor Harrris, J., J. (ed.) Islam and International Relations (London: Pall Mall Press, 1965). Proctor J. Harris (ed.), Islam and International Relations (New York, 1965). Publications of Centre Culturel Islamique (No.1), Introduction to Islam (Park Lane, Secunderabad, 1576 H/ 1957 A.C.). Qadri Anwar A., Islamic Jurisprudence in the Modern World (Dehli: Taj Printers, 1986). Quadri Kafayat Motilewa, Hunud Abia Kadaouf, Mohammad Naqib Ishan Jan, Mohd. Iqbal AbdulWahab and Haniff Ahama., ‘Adquisitorial: The Mixing of Two Legal Systems’ 3 (1) International Journal of Humanities and Management Sciences (IJHMS) Volume (2015), pp.31-36. Rahim Abdur, The Principles of Muhammadan Jurisprudence (Madras, 1911). Rahmdel Mansour ., 'International Judicial Criminal Cooperation in Combating Narcotic Drugs Crimes in Iranian Law’, 10/4 European Journal of Crime, Criminal Law and Criminal Justice (2002), pp.294-302. Rahmdel Mansour, ‘The Ne Bis in Idem in Iranian Criminal Code’, 1, no. 5 Journal of Financial Crime (2004), pp. 271-281. Rahmdel Mansour., ’Money laundering in Iranian law: present and future’, 6 Journal of Money Laundering Control (2003), pp.182-190.

Corpus Juris of Islamic International Criminal Justice

733

Rahmdel Mansour., ’New Developments in the Iranian Code of Criminal Procedure of 2014’, 127 (3) ZSTW (2015), pp. 788-821. Rahmdel Mansour., ’The “Ne bis in idem” rule in Iranian criminal law’, vol. 11 (3) Journal of Financial Crime (2004), pp.277-28. Rahmdel Mansour., ’The Right to Counsel in Iranian Criminal Justice System’, 60 Crime Law Soc Change (2013), pp.287–295. Ramadan Tariq, In the Footsteps of the Prophet: Lessons from the Life of Muhammad (Oxford: Oxford University Press, 2007). Ramadan Tariq, Radical Reform: Islamic Ethics and Liberation (Oxford: Oxford University Press, 2009). Ramadan Tariq, The Arab Awakening, Islam and the New Middle East (London: Penguin, 2012). Ramadan Tariq, The Quest for Meaning, Developing a Philosophy of Pluralism (London: Penguin, 2010). Ramadan Tariq, Western Muslims and the Future of Islam (Oxford: Oxford University Press, 2005). Ramadan Tariq, What I Believe (Oxford: Oxford University Press, 2009). Randall Kenneth C., 'Universal Jurisdiction under International Law' 66 Texas Law Review (1988). Rawls Johan, A theory of justice (1971). Raz Joseph, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994). Raz Joseph, The Morality of Freedom (1986). Rehman Javaid and Shaheen Sardar Ali, ‘The concept of Jihad in Islamic International Law’, 10 (3), Journal of Conflict & Security Law (2005), pp. 321343. Rehman Javaid, ‘International Law, US Foreign Policy and Post-9/11 Islamic Fundamentalism: The Legal Status of the "War-on-Terror"' 77(2) Nordic Journal of International Law (2008) pp. 87-103. Rehman Javaid, International Human Rights Law (London and New York: Longman Pub Group, 2nd ed., 2010). Rehman Javaid, Islamic State Practices, International Law and the Threat from Terrorism: A Critique of the ‘Clash of Civilizations' in the New World Order (Oxford: Hart Publishing, 2005). Reisman W. Michael, ‘Legal Responses to Genocide and Other Massive Violations of Human Rights’, 59 Law and Contemporary Problems 75 (1996). Reuven Firestone, Jihad: The Origin of Holy War in Islam (New York: Oxford University Press, 1999). Reydams Luc, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford: Oxford university Press, 2005). Richards David A. J., Why Love Leads to Justice: Love Across the Boundaries (New York: Cambridge University Press, 2016). Rinceanu Johanna, ‘The principle of legality (Nullum crimen sine lege) in Romania’ in U. Sieber, S. Forster, & K. Jarvers (Eds.), National Criminal Law in a Comparative Legal Context, vol.2 (1): Max-Planck-Institute für Ausländisches und Internationals Strafrecht, (2011c) pp.89-101.

734

Bibliography

Rinceanu Johanna, ‘Criminal Liability of Legal Persons in Romania’ in Riccardo Borsari, Responsabilita` da reato deli enti (Padova: Padova University Press, 2016), pp. 407–418. Rinceanu, Johanna, ‘Concept and Systematization of the Criminal Offense in Romania’ in U. Sieber, S. Forster, & K. Jarvers (Eds.), National Criminal Law in a Comparative Legal Context, Vol. 3(1): Max-Planck-Institute Max-PlanckInstitute für Ausländisches und Internationals Strafrecht (2011), pp. 73–85. Robinson Mary, ‘Genocide, War Crimes, Crimes Against Humanity’, 25 Fordham International Law Journal 275 (1999). Roksandiü Vidliþka S., Prosecuting Serious Economic Crimes as International Crimes: A New Mandate for the ICC?, Duncker & Humblot (fall 2017 forthcoming). Roksandiü Vidliþka S., Severe Economic Crimes Committed in Transitional Periods –Crimes under International Criminal Law, in Anna-Maria Getos Kalac, Hans Jörg Albercht, Michael Kilchling, pp.467-498. Röling B.V.A., International Law in an Expanded World (Amsterdam: Djambatan,1960). Romano C.P.R. and A. Nollkaemper, ‘The Arrest Warrant against the Liberian President Charles Taylor’, American Society of International Law Insight (2003), available at https://www.asil.org/insights/volume/8/issue/16/arrestwarrant-against-liberian-president-charles-taylor. Rorty Richard, Philosophy and the Mirror of Nature (1990). Rosen Lawrence, The Justice of Islam: Comparative Perspectives on Islamic Law and Society (Oxford: Oxford University Press, 2000). Rosenthal Franz,, The Muslim Concept of Freedom Prior to the Nineteenth Century (Leiden, 1960). Ross Alf, On Law and Justice (London: Stevens & Sons Limited, 1958). Rousseau J. J., The Social Contract, transl. M. Cranston, Book IV (Harmondsworth: Penguin, 1968). Rousseau Jean-Jacques, Discourse on the Origin of Inequality, part two: The Basic Political Writings, Hackett (1754). Russell Bertrand, A History of Western Philosophy (George Allen and Unwind, London, 1948. Ruthven M., Islam in the Word (London: Penguin, 1984). Ryngaert Cedric, ‘Jurisdiction in International Law: United States and European Prespectves (Katholieke Universiteit Leuven, Faculteit Rechtsgeleerdheid, 1979), available at https://lirias.kuleuven.be/bitstream/1979/911/2/doctoraat.pdf. Ryngaert Cedric, Jurisdiction in International Law (Oxford: Oxford University Press, 2009), PP.42-84. Comments from Kenya: The Scope and Application of the Principle of Universal Jurisdiction: The Report of the Six Committee (A/64/452-RES), available at http://www.un.org/en/ga/sixth/65/Scope AppUni Juri_StatesComments/Kenya.pdf. Ryngaert Cedtric, ‘Territorial Jurisdiction Over Cross-frontier Offences: Revisiting a Classic Problem of International Criminal Law’ 9 International Criminal Law Review 9 (2009), pp.187–209. Sadat Leila Nadya, ‘Competing and Overlapping Jurisdictions’, Bassiouni, ed., International Criminal Law (2008).

Corpus Juris of Islamic International Criminal Justice

735

Sadat Nadya Leila, Custom, ‘Codification and Some Thoughts about the Relationship Between the Two: Article 10 of the ICC Statute,’ 49 DePaul Law Review 909 (2000). Sahovic Milan and William W. Bishop., ‘The Authority of the State: Its Range with Respect to Persons and Places’ in Max Sorensen, Manual of Public International Law (London: Macmillan, 1968), pp.311-380, Saloom Racehl, ‘Is Beheading Permissible under Islamic Law-Comparing Terrorist Jihad and the Saudi Arabian Death Penalty’, 10 University of California, Los Angeles Journal International Law & Foreign Affairs (2005). Salvadori Ivan, I Reati di possesso: Un’indagine dogmatica e politico-criminale in prospettiva storica e comparata (Edizioni Scientifiche Italiane, 2016). Sardar Ali Shaheen and Javaid Rehman, ‘The concept of Jihad in Islamic International Law’, 10 (3), Journal of Conflict & Security Law (2005), pp. 321343. Sardar Ali Shaheen, ‘Contextualising Family-Law Reform and Plural Legalities in Postcolonial Pakistan’ in: Yassari Nadjma, Changing God's Law, pp. 34-67. Sardar Ali Shaheen, ‘Evolving Conceptions of Children's Rights: Some Reflections on 'Muslim States' Engagement with the United Nations Convention on Rights of the Child', in Yassari Nadjma. Sardar Ali, Shaheen, Gender and Human Rights in Islam and International Law: Equal Before God, Unequal before Man? (The Hague/London/Boston: Kluwer Law International, 2002). Sayapin Sergey, ‘A ‘Hybrid’ Tribunal for Daesh?’ Blog of the European Journal of International Law (May 4, 2016), available at http://www.ejiltalk.org/a-hybridtribunal-for-daesh/. Sayeh Leila P. and Adriaen M. Morse, Islam and the Treatment of Women: An Incomplete Understanding of Gradualism’, 30 Text International Law Journal (1995), pp. 311-334. Schaack Beth Van / Ronald Slye, International Criminal Law and its Enforcement: Cases and Materials (United States: Foundation Press, 2015), pp.50-55, EU Copyright reform: Revisiting the principle of territoriality available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/568348/EPRS_BRI (2015)568348_EN.pdf. Schaack Beth van, ‘The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot’, 106 Yale Law Journal 2259 (1997). Schabas William A., An Introduction to the International Criminal Court (Cambridge University Press, 2011). Schabas William A., Genocide in International Law, the Crime of Crimes (2000). Schabas William A., Islam and the Death Penalty, 9 William Marry Bill of Rights journal (2000), pp. 223- 236. Schabas William A., Justice, ‘Democracy and Impunity in Post Genocide Rwanda: Searching for Solutions to Impossible Problems’, 7 Criminal Law Forum (1996). Schabas William A., The Abolition of the Death Penalty in International Law (2002 and 2005).

736

Bibliography

Schabas William A., The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006). Schedina Abdulaaziz Abdulhussein, The Just Ruler (al-sultãn al-ãdil) in Shite Islam: A Comprehensive Authority of the Jurist in Imamte Jurisprudence (New York, Oxford: Oxford University Press, 1988). Schick F.B., ‘The Nuremberg Trial and the International Law of the Future,’ 41 American Journal of International Law 770 (1947). Schiff Benjamin N., Building the International Criminal Court (Cambridge. Cambridge University Press, 2008). Schindler Dietrich, ‘State of War, Belligerency, Armed Conflict’, in 3 The New Humanitarian Law of Armed Conflict, edited by Antonio Cassese (Naples: Editoriale Scientifica, 1979). Schuon Frihjof, The Transcendent Unity of Religions (New York, 1953). Schwarzenberger Georg, ‘The Problem of an International Criminal Law,’ 5 Current Legal Problems (1950). Searching for “Justice, Equity, and Good Conscience”: A Muslim re-interpretation of law in British India. Available at http://www.academia.edu/5600739/Searching _for_Justice_Equity_and_Good_Conscience_A_Muslim_re-interpretation_of_ law_in_British_India. Italic added. Seen Carleton Kemp, Law in the Making (Oxford: Clarendon Press, 1939). Selim Mohammad El Sayed (ed.)., The Organization of the Islamic Conference in a Changing World (Egypt: Faculty of Economics and Political Science Cairo University, 1994). Senate Belgian, Parliamentary Commission of Inquiry concerning Rwanda / Commission d’enquête parlementaire concernant les événements du Rwanda, Report/Rapport, Brussels/Bruxelles, 6.12.1997. Shaffer Thomas L., ‘The Legal Ethics of Radical individualism’ 65 Texas Law Review (1997). Shah Niaz A., Islamic Law and the Law of Armed Conflict: The Armed Conflict in Pakistan () (UK and New York, NY: Routledge, 2011). Shah Niaz A., 'The Islamic law of qital among Muslims', in Niaz A. Shah, pp.6070. Shah S.B., ‘The Oversight of the Last Great International Institution of the Twentieth Century: The International Criminal Court’s Definition of Genocide,’ 16 Emory International Law Review 351 (2002). Shaheen Sardar Ali and Javaid Rehman, ‘The concept of Jihad in Islamic International Law’, 10 (3), Journal of Conflict & Security Law (2005), pp. 321343. Shaheen Sardar Ali, ‘Systematically closed, cognitively open? A critical Analysis of Transformative Processes in Islamic Law and Muslim State Practice’ in Christoffersen, pp. 119-140. Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law: Equal Before God, Unequal before Man? (The Hague/London/Boston: Kluwer Law International, 2002). Abul A'la Mawdudi, Human Rights in Islam (Leicester, 1990).

Corpus Juris of Islamic International Criminal Justice

737

Shaheen Sardar Ali, Modern challenges to Islamic law (Cambridge, Cambridge University Press, 2016). Shapiro Martin, ‘Islam and Appeal’, 68 (2) California Law Review (1980), pp.35038. Available also at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi? article=2293&context=californialawreview. Sharwani Haroon Khan, Studies in Muslim Political Thought and Administration (1959). Shihata Ibrahim F.I., ‘The Attitude of New States toward the International Court of Justice’, 19 International Organisation, (1965), pp. 203-222. Shihata Ibrahim, ‘Islamic Law and the World Community,’ I, No.4 Harvard International Club Journal (1962). Shukri Muhammad Hafiz Mohd and Mohd Khairul Hisyam Hassan, Should a child be allowed to give evidence? The position of child evidence under civil and Islamic laws in Malaysia (Universiti Malaysia Sarawak (UNIMAS), 2014), pp.1-24. Shytov Alexander Nikolaevich, Conscience and Love in Making Judicial Decisions (Law and Philosophy Library, Springer Science, 2001). Siddiqi Mohammad Mazheruddin, Women in Islam (Delhi: Adam Publishers & Distributors, 3ed., 1984). Silverman Adam L., 'Just War, Jihad, and Terrorism: A Comparison of Western and Islamic Norms for the Use of Political Violence', 44 (1), Journal of Church and State (2002), pp.73-92. Simpson A. W. Brian, Leading Cases in the Common Law (Oxford: Oxford University Press, 1996). Sliedregt Elies van, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003). Slye Ronald (ed.), The Nuremberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (2017). Slye Ronald / Schaack Beth Van, International Criminal Law and its Enforcement: Cases and Materials (United States: Foundation Press, 2015). Smith R. Bosworth, ‘Muhammad and Muhammedanism,’ Lectures delivered at the Royal Institute of Great Britain, 2nd ed. (London, 1876). Sowilet A., The Problem of the Creation of a Permanent International Criminal Court (1951). Starr, June. Law as Metaphor: From Islamic Courts to the Palace of Justice (Albany, N.Y., 1992). Stern Brigitte, ‘La Cour Criminelle Internationaledans le Projet de la Commission du Droit International’, in International Legal Issues Arising Under United Nations Decade of International Law (1995), pp. 739-60. Stimson Henry, L., ‘The Nuremberg Trial, Landmark in Law,’ 25 Foreign Affairs 179 (1946-7). Stone Julius and Woetzel Robert, Toward a Feasible International Criminal Court (1970). Sugarman David, ed., Legality, Ideology and the State (1985). Sukhash Khuda S., Contribution to the History of Islamic Civilization (1st ed., Calcutta, 1950), Vols. I and II.

738

Bibliography

Syed Tahir, Mahmood. Criminal Law in Islam (Pentagon Press, 2007). Sypnowich C, The Concept of Socialist Law (1990). Taha Jabir Al `Alwani., The Ethics of Disagreement in Islam (Herndon, VA: The International Institute of Islamic Thought, 1993). Talaat Al-Ghunaimi Mohammad, The Muslim Conception of International Law and Western Approach (Netherlands, 1968). Tariq Ramadan, The Quest for Meaning, Developing a Philosophy of Pluralism (London: Penguin, 2010). Tawfik Ahmed Hamdy, ‘The Concept of Crime in the Afghan Criminal Justice System: The Paradox between Secular, Tradition and Islamic Law: A Viewpoint of an International Practitioner’, 9 (4) International Criminal Law Review, (2009), pp.667-687. The Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg 1946, H.M. Stationary Office Cmd. 6964. Timothy C. Evered. ‘An International Criminal Court: Recent Proposals and American Concerns’, 6 Pace International Law Review 121 (1994). Trials of War Criminals before the Nuremberg Military Tribunal under the Control Council (1951). Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law,No. 10 ( Nuremberg, 1946-1949). Tyan, Émile. Histoire de l’organisation judiciare en pays d’Islam. 2 vols. Paris, 1938–1943. (Leiden, 1960). Unger R., ‘The Critical Legal Studies Movement,’ 96 Harvard Law Review 561 (1985). United Nations War Crimes Commission, History of the United Nations War Commission and the Development of the Laws of War (1949). Uvin Peter, ‘Difficult Choices in the New Post-Conflict Agenda: The International Community in Rwanda after the Genocide’, 22: 2 Third World Quarterly (2001), pp. 177-189. Vagias Michail, The Territoriality Jurisdiction of International Criminal Court: Certain Contested Issues (Bynkers Hoek Publishing, 2010). Vattel E. De., The Law of Nations or the Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereign, translation of the edition of 1758 by Charles G. Fenwick (Washington: Carnegie Institution of Washington, Books I, I, III, IV, 1916). Veintimilla D. Julian, ‘Islamic Law and War Crimes Trials: The Possibility and Challenges of a War Crimes Tribunal Against the Assad Regime and ISIL’, 49 Cornell International Law Journal (2016), pp. 497-519, Vers l'unification du droit pénal par la création d'un Institut international auprès de la Société des Nations", (1928) 3 Études Crimin, pp. 49-56. Vesey-Fitzgerald Seymour, Muhammadan Law: An Abridgment According to its Various Schools (first edition 1931), (Reprinted in Germany: Sciencia Verlaf Aalen, 1979). Vogel Frank E., ‘The Trial of Terrorists under Classical Islamic Law’ 43 Harvard International Law Journal (2002).

Corpus Juris of Islamic International Criminal Justice

739

Vyver John D. van der, ‘Prosecution and Punishment of the Crime of Genocide’, 25 Fordham International Law Journal 286 (1999). Warberg Lasse A,, ’Shariah: Om den Islamiske Strafferetten (Uqûbât)’, 80 (4) Nordisk Tidsskrift for Kriminalvidenskab (1995), pp. 260-285. Ward Ian, An Introduction to Critical Legal Theory (1998). Warren Allmand, ‘The International Criminal Court and the Human Rights Revolution’, 46 (1) McGill Law Journal (2000). Watt Montgomery, W., Muhammad at Medina (Oxford, 1956). Watt W. Montgomery, Free Will and Predestination of Early Islam (London, 1948). Watt W. Montgomery, Islam and the Integration of Society (London, 1961). Watt W. Montgomery, Muhammad, Prophet and Statesman (Oxford, 1961). Watt W. Montgomery, The Formative Period of Islamic Thought (Edinburgh, 1975). Webster Paul, France Denies, ‘Arming Hutus for Genocide’, Guardian Weekly (London, 18.1.1998). Weeramantry C.G., Islamic Jurisprudence: An International Perspective (New York: St. Martin’s Press, 1988). Welch Claude and Ronald Meltzer (eds.), Human Rights and Development in Africa (Albany, 1984). Wells H.G., The Outline of History, Being a Plain History of Life and Mankind (London, Cassell, 8th ed., 1925). Werle Gerhard and Florian Jessberger., Principles of international Criminal Law (Oxford university Press, 1014). Williams George, The Holy City: Or, Historical, Topographical Notices of Jerusalem with Some Accounts of Antiquities and its Present Condition (London: J. W. Parker, 1845). Williams Sarah and Lena Sherif, ’The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court’ 14 (1) Journal of Conflict & Security Law (2009), pp. 71–92. Wise E.M., ‘International Crimes and Domestic Criminal Law,’ 58 DePaul Law Review 925 (1989). Wise Edward M., ‘Prolegomenon to the Principles of International Criminal Law,’ 16 New York University Law Review (1970). Wood Allen, Kant’s Ethical Thought (Cambridge University Press, 1999). Wright Quincy, ‘Proposal for an International Criminal Court’ 46 (1), American Journal of International Law (1952), pp.60-72. Wright Quincy, ‘The Scope of International Criminal Law: A Conceptual Framework’, 15 Virginia Journal of International Law (1975). Wright Quincy., ‘The Law of the Nuremberg Trial,’ 41 American Journal of International Law 38 (1947). Yamani Ahmed Z., ‘Humanitarian International Law in Islam: A General Outlook’, 7 Michigan Yearbook of International Legal Studies (1985). Yasin Dutton,, The Origins of Islamic Law: The Quran, the Muwatta’ and Madinian ‘Amal (London: Curzon Press, 1999).

740

Bibliography

Yeun-Li Liang, ‘The Establishment of an International Criminal Jurisdiction: The First Phase’, 46 American Journal of International Law (1952). Younos Farid, Democratic Imperialism: Democratization and Islamization (Author House, Indiana, 2008). Ziadeh, Farhat J. Lawyers, the Rule of Law, and Liberalism in Modern Egypt (Stanford, Calif., 1968). Ziadeh, Farhat J.’Urf and Law in Islam’, in The World of Islam: Studies in Honour of Philip K. Hitti, edited by James Kritzeck and R. Bayly Winder, pp. 60–67. London, 1959. Ziegler David W., War, Peace and International Politics (7th ed. 1997). Zimmermann Reinhard, Daniel Visser, Southern Cross: Civil Law and Common Law in South Africa (Oxford: Clarendon Press, 1996). Zubaida Sami., Islam, the People and the State: Essays on Political Ideas and Movements in the Middle East (London: Routledge, 1989). Zwanenburg Marten, ‘The Statute of an International Criminal Court and the United States: Peace without Justice?’, 12 Leiden Journal of International Law 1-8 (no. 1, 1999).

INDEX

Agreements Cairo Declaration on Human Rights, 40, 198, 226, 336, 340, 353, 355, 440, 499 Convention on Civil and Political Rights, 151 Convention on Genocide, 97, 429 Convention on the Rights of the Child, 20, 21, 442, 443, 444 Covenant on Political Rights, 21, 387 Draft Code of Offences, 234 European Convention for the Protection of Human Rights and Fundamental Freedoms, 37 International Covenant on Civil and Political Rights, 42, 67, 81, 232, 266, 318, 387, 399, 411, 499 International Covenant on Economic, Social and Cultural Rights, 20, 499 Optional Protocol, 443, 444, 445 Universal Islamic Declaration of Human Rights, 40, 50, 268, 481

Arab Arab, 8, 14, 15, 19, 23, 27, 40, 41, 71, 77, 87, 96, 101, 145, 150, 151, 219, 220, 223, 229, 248, 253, 263, 298, 305, 310, 312, 335, 341, 352, 354, 355, 419, 420, 430, 455

Cases/Chambers Appeals Chamber, 129, 130, 141, 191, 192, 246, 247, 264, 266, 278, 288, 304, 403

arbitration, 101, 107, 123 Bosnia Genocide Case, 190 Court of the Star Chamber, 108, 147 Krstiü case, 380 Trial Chamber, 54, 55, 128, 129, 130, 141, 194, 245, 247, 250, 262, 264, 278, 279, 280, 281, 287, 288, 290, 300, 324, 377, 381, 403, 404, 446

Codes Christianity, 14, 21, 22, 29, 30, 32, 92, 171, 202, 230, 439, 449, 450, 452, 453, 716 Church, 13, 14, 31, 107, 208, 319, 737 Hammurabi Codes, 113 Iranian civil law, 112 Jew, 61 Jewish Levitical Code, 46 Hebrew, 453, 455King Solomon, 453, 455 Napoleonic Code, 109, 110, 113, 215 Orthodox, 83 Persian Civil Code, 113 Roman law, 2, 31, 113, 131

Countries and Cities Afghanistan, 8, 32, 144, 150, 216, 318, 336, 343, 417, 458 African colonies, 110 America, 3, 24, 28, 36, 47, 53, 57, 59, 60, 67, 72, 74, 89, 93, 97, 117, 121, 123, 132, 133, 150, 163, 200, 207, 214, 216, 219,

742 238, 240, 247, 264, 300, 309, 321, 441, 447, 454 Australia, 148, 416 Azerbaijan, 8, 10, 19 Bahrain, 8, 10, 336, 479 Bosnia and Herzegovina, 189, 190, 192, 288, 418 Bosnia, 9, 97, 189, 190, 192, 193, 194, 288, 412, 418, 723 China, 44, 220, 227, 262, 327, 332, 353 Chinese, 53, 67, 123, 174, 332 England, 107, 108, 120, 123, 131, 132, 133, 135, 204, 326 France, 13, 110, 112, 128, 327, 331, 416, 428 Germany, 6, 12, 31, 32, 73, 120, 122, 127, 218, 321, 325, 327, 393, 416, 447, 456 Hague, 85, 191, 192, 193, 216, 258, 323, 436 Iran, 8, 10, 27, 32, 48, 67, 108, 122, 127, 144, 150, 151, 214, 215, 216, 227, 230, 285, 318, 336, 343, 436, 458 Israel, 62, 88, 146, 212, 227, 248, 406, 409, 426, 453, 455 Kampala, 200, 201, 204 Lebanon, 9, 10 Libya, 141, 245, 246, 247, 404, 417 London, 2, 6, 11, 12, 17, 18, 26, 27, 28, 36, 46, 48, 52, 57, 59, 74, 76, 79, 85, 88, 96, 97, 101, 106, 112, 119, 125, 131, 135, 157, 210, 216, 220, 238, 240, 241, 263, 280, 291, 315, 354, 357, 360, 363, 385, 428, 439, 446, 449, 451, 453 Mecca, 8, 45, 84, 91, 96, 455 Medina, 84, 91, 96, 106, 171, 453 Middle East, 23, 27, 35, 40, 92, 96, 113, 207, 309, 424 Oxford, 5, 12, 23, 29, 35, 41, 47, 49, 51, 54, 67, 72, 89, 106, 133, 135, 172, 210, 214, 220, 243, 260,

Index 316, 332, 340, 348, 394, 400, 410, 446, 451, 452, 453, 454, 471 Romani, 23 Russia, 9, 26, 53 Rwanda, 53, 54, 73, 94, 185, 212, 241, 349, 361, 425, 428, 431 Saudi Arabia, 9, 67, 115, 150, 215, 216, 318, 336, 409 Serbian, 190, 192, 193, 194, 195, 196, 241, 380 South Africa, 133, 254, 347, 349 South Korea, 349 Soviet Socialist Republic, 241 Spain, 26, 75, 218, 326 Spanish, 31 Srebrenica, 190, 191, 192, 193, 194, 195, 196, 288, 380, 412 Stockholm, 16, 23, 28, 97, 239, 241, 332 Sudan, 9, 67, 150, 227, 249, 250, 253, 318, 336, 417, 436, 446, 447 Tokyo, 240, 323, 357 United Kingdom, 14, 32, 123, 134, 135, 147, 319, 331, 353, 376, 416, 429, 456 Vietnam, 28, 164, 189, 241 Yugoslavia, 53, 54, 73, 94, 97, 120, 190, 196, 212, 241, 288, 332, 361, 392, 425, 431, 447

Crimes Aapartheid, 92, 94, 95, 103, 147, 175, 179, 182, 184, 205, 235, 341, 347, 349, 423, 425, 456 Aggression, 9, 89, 101, 102, 150, 158, 162, 173, 174, 175, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 234, 242, 245, 248, 301, 338, 357, 366, 369, 371, 373, 392, 394, 405, 411, 465 Crimes against humanity, 49, 92, 95, 158, 162, 174, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 192, 196, 197, 199, 224, 227, 235, 238, 240, 241,

Corpus Juris of Islamic International Criminal Justice 242, 244, 245, 249, 250, 260, 288, 301, 315, 349, 357, 364, 366, 368, 370, 371, 373, 376, 377, 382, 394, 395, 400, 404, 405, 406, 409, 416, 417, 424, 425, 426, 430, 446 Discrimination, 20, 41, 68, 89, 94, 96, 177, 179, 187, 205, 207, 235, 238, 266, 272, 283, 344, 355, 399, 423, 426, 432, 457 Diyah, 59, 153, 154, 160, 161, 162, 337, 404 Duress, 364 Genocide, 49, 92, 95, 97, 103, 152, 158, 162, 175, 183, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 205, 224, 227, 235, 241, 242, 244, 245, 249, 250, 260, 301, 315, 334, 341, 349, 357, 359, 364, 366, 368, 370, 371, 382, 392, 394, 395, 400, 405, 406, 408, 409, 412, 413, 415, 417, 427, 428, 429, 430, 431, 432 highway, 158, 235, 334, 339 Hudud, 103, 136, 149, 150, 151, 157, 224, 225, 297, 338, 339, 475 Human trafficking, 10, 49, 235 murder, 3, 14, 32, 51, 55, 136, 153, 154, 155, 156, 160, 169, 176, 177, 178, 180, 181, 183, 184, 196, 198, 235, 241, 266, 292, 297, 339, 341, 347, 362, 369, 373, 382, 392, 406, 413, 420, 425, 426, 438, 446 Qisas, 30, 51, 149, 150, 152, 153, 154, 157, 161, 197, 198, 224, 225, 338, 339, 348, 475 Rape, 3, 92, 97, 162, 168, 170, 176, 181, 182, 184, 187, 235, 241, 285, 301, 366, 368, 373, 391, 392, 395, 400, 414, 415, 426, 433, 434, 451 Sexual abuse of women, 344 Slavery, 147, 216, 235 Tazir, 149, 156, 157, 476

743

Theft, 3, 32, 150, 151, 158, 235, 297, 334, 339 Torture, 16, 17, 32, 42, 92, 97, 108, 165, 166, 169, 177, 181, 182, 184, 217, 235, 241, 277, 287, 301, 309, 319, 326, 344, 345, 348, 349, 352, 353, 366, 368, 382, 392, 393, 400, 414, 415, 420, 421, 423, 426, 430, 433, 438, 451, 474,

Criminal procetures capital punishment, 7, 13, 14, 16, 17, 150, 151, 152, 157, 176, 216, 335, 336, 337, 345, 348, 352, 353, 474 criminal intent, 54, 161, 362, 381, 412, 431 Actus reus, 54, 412 punishments, 15, 21, 86, 138, 150, 151, 156, 158, 197, 217, 219, 237, 283, 332, 333, 334, 335, 341, 342, 348, 352, 355, 383, 391, 393, 394, 451, 473 criminal responsibility, 23, 31, 46, 54, 55, 59, 154, 162, 186, 222, 230, 231, 232, 240, 242, 244, 250, 251, 277, 283, 287, 350, 351, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 369, 370, 371, 372, 374, 375, 376, 378, 380, 381, 412, 427, 441, 448, 475 criminological, 15, 17, 77, 145 evidence, 271, 274, 276, 298 impunity, 28, 42, 53, 60, 125, 141, 184, 195, 213, 244, 245, 248, 249, 251, 256, 289, 294, 331, 360, 369, 371, 383, 386, 404, 405, 407, 427, 429, 458 Rules of Procedures, 275

Enlightenments enlightenment, 13, 15, 17, 18, 19, 28, 71, 77, 86, 105, 145, 151, 219, 283, 298, 339, 400, 450, 458, 470

744

Grave Criminality Abu Ghraib, 345, 353 Guantanamo Bay, 345, 353

Index 345, 349, 353, 358, 360, 387, 390, 404, 416, 425, 428, 429, 430, 436, 443, 456, 471

Human Rights

Islamic

absolute necessity, 171, 205, 419 fundamental rights, 24, 68, 70, 80, 89, 98, 138, 150, 159, 174, 222, 267, 437, 443 Grave breaches, 165, 166, 421, 422, humanitarian law of armed conflict, 32, 78, 89, 91, 93, 95, 98, 159, 163, 174, 175, 202, 235, 244, 372, 421, 436, 438, 439, 440, 441, 445, 450, 452 Islamic human rights, 67, 69, 70, 85, 98, 102, 228, 230, 283, 309, 340, 424 self-defence, 3, 50, 55, 62, 134, 164, 172, 173, 202, 203, 205, 206, 207, 351, 379, 419, 465

Amnesty, 12, 197, 231, 347, 349, 404 brotherhood, 5, 48, 79, 88, 89, 149, 174, 182, 207, 209, 217, 362, 473 Caliph, 306, 436, 439 Islamic nations, 36, 48, 58, 61, 69, 98, 102, 108, 110, 114, 115, 116, 139, 151, 179, 187, 205, 212, 213, 215, 243, 246, 247, 248, 249, 250, 253, 264, 280, 286, 298, 316, 318, 331, 334, 337, 338, 343, 349, 352, 353, 355, 366, 368, 375, 386, 392, 445, 458 Islamic philosophy, 6, 7, 12, 17, 21, 27, 35, 39, 40, 49, 74, 87, 105, 155, 182, 221, 245, 248, 249, 250, 286, 307, 342, 362, 385, 419, 436, 463, 469 Islamic sources, 83, 225, 244, 249, 339, 392 Lay judges, 120, 122 Maliki, 11, 100, 136, 475 Muslim civilization, 88 Muslim, 6, 7, 9, 10, 11, 12, 17, 19, 22, 23, 25, 29, 34, 35, 38, 48, 50, 51, 52, 61, 62, 65, 76, 77, 83, 84, 87, 90, 92, 93, 95, 97, 101, 103, 105, 106, 109, 147, 161, 163, 172, 173, 175, 177, 179, 186, 187, 188, 190, 191, 192, 202, 204, 218, 220, 232, 233, 241, 254, 260, 265, 268, 271, 272, 283, 288, 292, 296, 307, 310, 312, 318, 321, 334, 336, 338, 340, 345, 360, 366, 367, 368, 370, 377, 380, 389, 391, 393, 394, 406, 410, 411, 419, 427, 436, 439, 443, 445, 449, 453, 457, 473 Nationality, 47, 48, 49, 122, 181, 199, 288, 442

International Organisations European Union, 1, 30, 78, 191, 228, 229, 232, 321, 388, 456 General Assembly, 20, 33, 37, 42, 70, 81, 94, 95, 201, 205, 387, 427, 443, 456, 580, 705 Islamic Council of Europe, 40, 50, 268 Organisation of the Islamic Conference, 9, 445 Organisation of the Islamic Cooperation, 8 list of membership 8, 9 Security Council, 23, 32, 60, 94, 95, 115, 126, 173, 174, 223, 248, 249, 250, 278, 324, 332, 399, 404, 413, 414, 416, 417, 425, 429, 430, 431, 448, 471 United Nations, 9, 33, 36, 37, 54, 59, 60, 62, 70, 78, 94, 95, 167, 169, 172, 173, 174, 175, 185, 190, 200, 201, 202, 203, 204, 205, 234, 238, 239, 241, 249, 254, 278, 301, 320, 324, 332,

Corpus Juris of Islamic International Criminal Justice Non-Western, 36, 63, 109, 213, 272, 293, 326, 337, 344, 376, 391, 408, 473

Islamic Divisions Hanafi, 11, 100, 136, 475 Shi’a, 101, 102, 419 Sufi, 10 Shia, 8, 10, 11, 133, 432 Sunni, 8, 9, 10, 11, 100, 102, 133, 291, 419, 432, 475, 476 Sunnah, 18, 27, 38, 46, 83, 84, 90, 91, 92, 93, 99, 100, 101, 103, 108, 127, 150, 225, 272, 348, 369, 459, 476, 481, 482, 483, 489 Shariah, 12, 17, 21, 37, 39, 45, 46, 50, 51, 64, 66, 71, 72, 73, 74, 79, 80, 83, 84, 85, 93, 99, 100, 101, 103, 105, 107, 110, 112, 127, 131, 136, 137, 139, 143, 144, 148, 149, 151, 161, 162, 198, 202, 210, 214, 215, 217, 243, 253, 263, 264, 279, 280, 295, 316, 333, 339, 340, 355, 362, 364, 381, 383, 424, 469, 470, 473, 476

Jihad Jihad, 3, 8, 28, 89, 71, 105,171, 172, 177, 202, 208, 214, 216, 412, 723, 724, 730, 733, 734, 735, 736, 737

Legal Reasoning adquisitorial, 58, 59, 60, 64, 66, 111, 119, 121, 144, 211, 252, 254, 289, 318, 319, 320, 322, 323, 327, 383 de lege ferenda, 225, 407 ex post facto, 224, 225, 236, 258, 315, 407 guilt in camera, 305 habeas corpus, 49, 50 hybrid, 57, 60, 127, 212, 253, 254, 255, 320, 322, 425, 735

745

jus bellum, 170 jus cogens, 47 mens rea, 3, 17, 54, 55, 56, 155, 179, 180, 181, 362, 364, 374, 377, 381, 409, 412, 413, 414 ne bis in idem, 223, 228, 229, 230, 232, 253, 258, 407, 566, 691 nulla poena sine lege, 222, 223, 224, 225, 226, 227, 236, 237, 253, 258, 337, 407 nullum crimen sine lege, 222, 224, 225, 226, 227, 237, 238, 239, 407 positivist, 73, 133, 225, 363 Qadi, 18, 28, 66, 157, 211, 262 qatl-al-khata, 153 qatl-shibh-al-amd, 153

National/International Courts Bengal Civil Courts, 25 ICC, 2, 14, 25, 33, 34, 36, 49, 52, 53, 58, 64, 102, 103, 126, 128, 129, 130, 141, 159, 162, 163, 165, 166, 181, 184, 185, 187, 196, 199, 200, 209, 212, 223, 224, 225, 226, 227, 228, 229, 230, 234, 236, 237, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 254, 257, 258, 260, 262, 264, 265, 270, 271, 272, 273, 274, 275, 277, 278, 279, 280, 281, 282, 285, 286, 287, 290, 291, 293, 294, 295, 297, 298, 299, 300, 310, 311, 313, 314, 315, 316, 317, 318, 320, 323, 324, 331, 332, 333, 337, 342, 346, 353, 355, 357, 358, 360, 361, 364, 366, 367, 369, 370, 371, 374, 375, 376, 378, 380, 382, 383, 389, 392, 393, 395, 397, 398, 399, 400, 401, 402, 403, 404, 405, 407, 408, 414, 415, 416, 417, 420, 421, 446, 447, 448 ICJ, 2, 43, 53, 79, 102, 190, 192, 194, 195, 196, 390, 431

746 ICTR, 59, 97, 128, 165, 180, 181, 183, 184, 185, 189, 196, 236, 241, 254, 274, 286, 319, 324, 332, 344, 346, 359, 374, 381, 423, 425, 431 ICTY, 59, 62, 97, 128, 129, 165, 181, 183, 184, 189, 191, 192, 193, 194, 195, 196, 231, 236, 241, 254, 266, 274, 286, 319, 322, 323, 324, 332, 344, 346, 359, 361, 374, 377, 381, 382, 392, 423, 424, 425, 431, 447 Islamic international criminal court, 15, 24, 29, 33, 34, 36, 42, 52, 61, 85, 90, 93, 95, 102, 103, 129, 140, 158, 159, 162, 163, 165, 166, 179, 187, 199, 208, 209, 228, 230, 232, 242, 243, 244, 245, 246, 247, 248, 249, 251, 259, 261, 262, 264, 265, 271, 275, 278, 279, 280, 281, 282, 285, 287, 290, 291, 294, 318, 334, 337, 350, 358, 360, 362, 363, 364, 366, 367, 368, 369, 371, 375, 376, 378, 385, 386, 389, 392, 395, 399, 400, 402, 403, 408, 409, 414, 421, 423, 424, 425, 431, 432, 436, 446, 447, 448, 450, 451, 456, 459, 469, 471 Nuremberg Tribunal, 32, 132, 177, 183, 199, 238, 239, 240, 241, 257, 274, 293, 368, 424, 448 Russell Tribunal, 28, 241 Special Court for Sierra Leone, 54, 59, 60, 128, 189, 286, 361, 426, 447

Natural Law natural law, 13, 33, 41, 66, 72, 89, 170, 177, 228, 314, 333, 344, 360, 421, 450

Persons 207, 233, 309, 436, 724, 725, 729 Abraham, 5, 12, 38, 386, 469

Index Adam, 5, 12, 20, 144, 146, 208, 222, 459, 494, 737 al-Bashir, 178, 196, 213, 447, 739 Al-Bashir, 27, 446 Al-Bukhari, 10 Al-Ghazali, 105, 106, 729 Ali Ben Abi Taleb, 101 Avicenna, 75 Bahá'í, 39 Beccaria, 15, 16, 17 Bentham, 16, 76, 732 Bertrand Russell, 26, 97, 241 Cassese, 49, 73, 195, 196, 322 Cerkez, 54, 55 Drazen Erdemovic, 288 Dworkin, 219, 718 Eddie Mabo, 148 Gaddafi, 141, 245, 246, 247, 404 Gibb, 11, 29, 220 Hitler, 469 Ibrahim, 17, 43, 119, 310 Iman Abu Hanifah, 51 Iman Shafii, 51 Ishmael, 5, 12, 75 Kamali, 7, 65, 91, 92, 99, 100, 129, 143, 243, Kant, 11, 12, 13, 14, 15, 30, 36, 45, 57, 86, 123, 363, 453, 469, 473 Kantian, 12, 21, 36, 78 Kayishema, 180, 196 Kelsen, 35, 57, 63, 238, 453 Khadduri, 30, 35, 88, 91, 93, 163, Khadduri, 30, 35, 88, 91, 93, 163, Lenin, 469 Leo Tolstoy, 26 Lumumba, 469 Luther King, 21, 147, 453, 469 Malcolm X, 469 Marx, 469 Mary, 5, 97, 478, 733 Milosevic, 194, 196 Mladic, 195, 196 Mohammad, 7, 8, 11, 14, 15, 18, 20, 21, 22, 26, 37, 38, 40, 64, 65, 76, 77, 79, 84, 87, 91, 96, 108, 129, 143, 144, 145, 146, 150, 163,

Corpus Juris of Islamic International Criminal Justice 172, 211, 220, 254, 300, 322, 323, 340, 400, 404, 439, 453, 455 Montesquieu’s, 27 Moses, 5, 12, 38, 40, 92, 386, 463 Muctazila, 10 Muhammad ibn Abdullah, 22 Noah, 38, 67, 386, 719 Pella, 23, 24, 59, 63 Ramadan, 12, 23, 27, 29, 41, 357, 449, 451, 452, 733, 737 Robert H. Jackson, 34, 35, 724 Rousseau, 74, 473 Stalin, 469 Vattel, 4, 33, 385, 435, 436, 445, 738 Weeramantry, 2, 26, 27, 58, 75, 78, 79, 189, 210, 418 Wells, 26, 74, 79, 220

Reasoning in the Courts forgiveness, 21, 23, 27, 66, 70, 71, 87, 125, 151, 152, 153, 158, 161, 221, 231, 240, 256, 266, 286, 339, 340, 342, 347, 348, 384, 404, 449, 450, 452, 458, 465, 468, 469, 473, 474 testimony, 64, 144, 145, 146, 147, 219, 246, 251, 259, 271, 272, 274, 276, 282, 283, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 338, 355, 403 witness, 76, 107, 114, 126, 140, 144, 146, 249, 271, 272, 273, 274, 276, 283, 288, 291, 292,

747

293, 294, 295, 296, 297, 300, 303, 386, 389, 392, 395, 403

Religious Holy Books Bible, 145, 453, 455 Hindu, 25 Holy Book, 84, 109, 140, 219 Quran, 2, 5, 6, 7, 10, 12, 13, 15, 17, 18, 19, 20, 21, 26, 28, 34, 37, 38, 40, 46, 51, 54, 56, 59, 64, 65, 72, 75, 77, 79, 83, 84, 85, 86, 87, 88, 89, 90, 92, 93, 95, 96, 98, 99, 100, 101, 103, 125, 127, 137, 140, 144, 146, 149, 150, 152, 160, 161, 163, 197, 203, 207, 211, 225, 231, 253, 263, 272, 276, 298, 300, 305, 307, 309, 310, 315, 333, 339, 347, 352, 354, 370, 381, 386, 393, 395, 399, 401, 408, 410, 411, 417, 419, 427, 432, 443, 450, 451, 459 Quranology, 15, 17, 21, 77, 458

Shariah Legal Terms Al-nasab, 59, 475 amr, 7, 293 fatwa, 66, 97, 127, 217, 218, 433 hadith, 10, 51, 72, 90, 91, 99, 386, Ijma, 46, 84, 93, 99, 101, 127, 475 Imamah, 8 Mi'ad, 8 Territoriality principle, 47, 49, 735 Western states, 34, 376, 408