Ius in Bello under Islamic International Law

In 1966, Judge Jessup of the International Court of Justice pointed out that the appearance of an English translation of the teaching on the ‘Islamic law of nations’ of an eighth-century Islamic jurist (Shaybānī) is particularly timely and of so much interest because of the debate over the question whether the international law, of which Hugo Grotius is often called the father, is so completely Western-European in inspiration and outlook as to make it unsuitable for universal application in the context of a much wider and more varied international community of States. However, there has been little analysis of the role of Islam in shaping the modern European law of war and its progeny, international humanitarian law. This article argues that there is a room for the contribution of the Islamic civilisation within international humanitarian law and a conversation between different civilisations is needed in developing and applying international humanitarian law norms

The Prosecutor v. Vojislav Šešelj: A Symptom of the Fragmented International Criminalisation of Hate and Fear Propaganda

In 2016, the icty Trial Chamber found one of the greatest hate and fear propagandists of the Yugoslav wars, Dr Vojislav Šešelj, not guilty on all counts of the indictment. A full comprehension of the role the propaganda played was lost and the partial reversal of the judgment at the Appeals Chamber provided little improvement in this regard. Yet the blame does not solely rest with the Chambers but also with the Prosecution and an utterly fragmented law applicable to hate and fear propaganda. This article looks in depth at the Šešelj case in order to highlight the many hurdles to effective prosecution, some specific to the case and others symptomatic generally of propaganda trials. It then takes a multi-disciplinary approach in presenting the nature of hate and fear propaganda to suggest a broader way of looking at causality as well as to argue for reform of the current applicable law

The Destruction of Cultural Property in Timbuktu: Challenging the ICC War Crime Paradigm

Cultural property has been destroyed, looted and trafficked throughout history, particularly during conflict situations.2 In many instances, the property that is destroyed belongs to, and / or represents, minority groups and its destruction impacts significantly on minority culture. ISIS, and related jihadist groups, have, in recent times, actively engaged in the deliberate destruction of cultural property in numerous States, including Iraq, Syria, and Mali. This has been described as ‘cultural cleansing’ by the Director-General of UNESCO,3 as jihadist groups aim to eradicate all signs of ‘other’ cultures within its newly formed State. The destruction of cultural property is now a strategy of war, with the objective being to eliminate cultural diversity and pluralism, ‘erase all sources of belonging and identity, and destroy the fabric of society.’4 The International Criminal Court (ICC) recently (2016) heard the case of Prosecutor v Al Mahdi, which focused specifically on the destruction of cultural property in Mali during a non-international armed conflict. The defendant was charged, under Article 8 of the ICC Statute, with the war crime of directing attacks against cultural property.5 Mr Al Mahdi, a member of the fundamentalist Islamic group, Ansar Dine, had been in charge of the Hisbah, the morality brigade set up in Timbuktu. One of his roles was to oversee the destruction of a number of religious monuments and mausoleums in the city..

The cognitive and linguistic implications of ISIS propaganda: proving the crime of direct and public incitement to genocide

This chapter of the volume presents a model approach to the legal analysis of the most intricate cognitive and linguistic aspects of propaganda within the framework of international criminal law. As indicated by the authors, Mohamed Badar and Polona Florijančič, the chapter offers an analysis of “key concepts and labels employed by ISIS by placing them in their linguistic, historical, religious and ideological contexts.” This approach presents an advanced method of investigating various manifestations of intent and mens rea evidence on the one hand and its potential impact on the prospective perpetrators of the physical crimes on the other hand. Two distinct, but potentially related, cognitive modes of criminal conduct emerge from this method: the intentional, propagandistic conduct and the anticipated impact of such conduct on the perpetration of the physical crimes. The key lies in the historically and culturally determined meanings of the linguistic concepts employed by the ISIS propagandists, as subsequently understood and acted on by the ISIS combatants. The authors ultimately demonstrate how this type of propaganda can be prosecuted as the inchoate crime of direct and public incitement to commit genocide. This chapter can provide both the legal and academic contextual roadmap for the ISIS-related prosecutorial enterprises, namely, the ICC investigations into the mass atrocity crimes committed by this terrorist organization in Syria and Iraq

Assessing Incitement to Hatred as a Crime Against Humanity of Persecution

The main issue this research paper aims to tackle is whether incitement to hatred, independently of direct incitement to violence should amount to the actus reus of persecution as a crime against humanity. Before determining whether hate speech can be treated as an international crime, this article assesses theories and current international legal standards in the field of freedom of expression in order to identify the space for such a drastic intrusion into this freedom. The most significant justification for an international criminalisation of hate speech in certain contexts is that it enables large-scale discrimination and threatens basic human rights, including the right to life, of the targeted out-group. Current international criminalisation, as interpreted by the jurisprudence of the Yugoslavia and Rwanda tribunals, still shows an overly narrow approach, excluding much of the hate propaganda that plays a vital role in the enabling of mass crimes. This article concludes that systematic incitement to hatred should be treated as a form of persecution, regardless of a call to violence, when the inciter has knowledge of the fact that his words might contribute to the commission of grave crimes or large-scale discrimination against the targeted out-group and the denial of human rights of its members

Article 11 Jurisdiction ratione temporis

Article 11 establishes the temporal threshold for the activation of the Court’s jurisdiction at the date of entry into force of the Statute, which occurred on 1 July 2002. Whereas the other facets of the Court’s jurisdiction – jurisdiction ratione materiae, ratione personae and ratione loci – may be modified or applied in the alternative, paragraph 1 of article 11 represents an absolute bar on the scope of the Court’s competence. Paragraph 2 of article 11 regulates the activation of the Court’s temporal jurisdiction for States joining the ICC after its entry into force. For those signatory States that deposited the instruments necessary to bring the Statute into force, temporal threshold will apply from the date of the entry into force of the Statute itself, per article 11(1). For those States that become Parties to the Statute thereafter temporal jurisdiction will apply from 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. Nonetheless, article 11(2) recalls that an acceding State may also lodge a declaration under article 12(3) with respect to the time period during which it remained a non-Party State, thereby investing the Court with jurisdiction from an earlier time although no earlier than the restriction contained in article 11(1)

The challenges of addressing transnational organized maritime crimes. A review of current law and practice in Djibouti

The threat of transnational maritime crimes has grown significantly in the past few years, particularly in the Gulf of Aden, due to the ongoing armed conflicts in the Middle East and Africa combined with the concomitant deteriorated diplomatic relations between states in the region. This background context has enabled organized groups to commit their crimes largely with impunity, benefiting from poor international cooperation between states in criminal matters. This article sets out the international legal framework on transnational maritime crimes and the internationally recognized definitions of major maritime crimes. It then takes the Republic of Djibouti as a case example of how the international legal framework has been incorporated into domestic legislation and assesses its enforcement in practice. The article identifies an underlying lack of international cooperation in criminal matters in respect of prosecuting transnational maritime crimes, particularly with regard to mutual legal assistance and extradition not only in respect of Djibouti but also in the Gulf of Aden as a whole. Based also on evidence gathered by one of the authors during a United Nations Office of Drugs and Crime’s workshop that took place in the Djibouti Regional Maritime Training Centre in November 2022, the article concludes that, in order to protect the peace and security of the region and implement the UN 2030 Agenda for Sustainable Development, states must enhance cooperation by entering into further bilateral as well as plurilateral agreements on cooperation in criminal matters. More importantly, in order to enhance mutual understanding, trust and the sharing of good practices, it is recommended that a judicial cooperation network in the Gulf of Aden and the Red Sea under the auspices of the United Nations Office of Drugs and Crime Global Maritime Crime Programme be established

Killing in the Name of Islam? Assessing the Tunisian Approach to Criminalising Takfir and Incitement to Religious Hatred against International and Regional Human Rights Instruments

The rise of different strands of political Islam in Africa, Asia, and the Middle East since the 1970s and the lack of a robust political alternative during the Arab Spring have paved the way for the widespread issuance of ‘accusations of unbelief’ (takfīri ‘fatwas’), i.e. pronouncements of unbelief against individuals, groups of people or even institutions by Islamist movements. These fatwas fit into the broader context of radical Islamist ideologies spread by systematic hate propaganda and together form a deadly combination amounting to instigation to murder. A need to address this particular form of incitement, together with the spread of terrorist ideology in general, has arisen in states with large Muslim populations in order to protect the essential human rights impacted by such speech and to fulfil the obligations imposed by UN Security Council Resolutions. Tunisia has chosen a head-on approach to addressing this problem by criminalising accusations of takfīr and incitement to religious hatred and loathing as terrorist offences. Such an approach can be seen as an encroachment upon the right to freedom of expression, yet it has to be balanced against states’ positive obligations in protecting essential competing human rights. Drawing on the jurisprudence of the Human Rights Committee of the ICCPR and the African Commission of the ACHPR as well as literature in the field of human rights, this paper demonstrates the interrelation between the right to life, freedom from fear, security of the person and the right to dignity and their violation through unfettered takfīrism