1. Introduction
In July 2012, the Republic of Mali referred the situation in its territory to the International Criminal Court (ICC). On 30 September 2019, Pre-Trial Chamber I confirmed the charges of war crimes and crimes against humanity brought by the Prosecutor against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, an alleged member of Ansar Eddine and member of the Islamic police in the cities controlled by the armed group and al-Qaeda in Islamic Maghrib during a ten-month period.Footnote 1 The present case is second after the Al Mahdi case where the ICC came eye to eye with the question of Islamic injunctions.Footnote 2 However, in Al Mahdi, the defendant pleaded guilty, leaving less room for a discussion on Sharia’s position on the destruction of cultural property.Footnote 3
The Pre-Trial Chamber confirmed the charges brought by the Prosecutor against Al Hassan in 13 counts of crimes against humanity and war crimes.Footnote 4 Under the first five counts, Al Hassan’s conduct as a member of the Islamic police was presented as constituting the crime of torture or other inhuman acts as crimes against humanity (Article 7 of the ICC Statute) and the crimes of torture, cruel treatment, and outrages upon personal dignity as war crimes (Article 8 of the ICC Statute).Footnote 5 In that respect, Sharia punishments as mandated by the Islamic Court, such as flogging and amputation, were considered by the Office of the Prosecutor to amount to the above-mentioned crimes. Following the judgement delivered on 26 June 2024, similar to the Pre-Trial Chamber, Trial Chamber X did not consider these punishments as lawful sanctions, which would have exempted any pain or suffering arising from them from the definition of torture under Article 7(2)(e) of the Rome Statute.Footnote 6 The present paper engages with the broader implications of this judgment. The majority’s stance on the unlawfulness of Sharia punishments does not appear to differentiate between correct and incorrect applications of these punishments, potentially implying that all Sharia-based punishments could be considered crimes against humanity. This sweeping interpretation may undermine ongoing internal discussions on the applicability of Sharia punishments among Muslim scholars and practitioners in Muslim-majority countries and possibly hinder the international character of the ICC.Footnote 7 Judge Tomoko Akane’s dissenting opinion partially supports this view, suggesting that the majority’s blanket conclusion on lawful sanctions ‘may detract from the “international” nature of the Court’.Footnote 8
The main argument of the Prosecution supported by the majority of Trial Chamber X in the Al Hassan case is that the application of Sharia punishments constituted torture (counts 1 and 3) or other cruel, inhumane, or degrading treatment (count 4) as either war crimes or crimes against humanity based on two preconceptions: first, that Sharia punishments are imposing severe pain and suffering; and second, that they pursue no legitimate penological aim. We argue that these preconceptions are erroneous since the harshest penalties under Islamic law are contingent on strict procedural and evidential thresholds that must be met whilst simultaneously taking into consideration legitimate penological aims,Footnote 9 whereas other corporal punishments do not impose such severe pain or suffering at all.
Accordingly, the article attempts to question the broad generalization reached by both Chambers, which seems to imply that the application of Sharia punishments is inherently a crime against humanity. It also poses the following questions: Does the mere application of Sharia punishments amount to an international crime? Do Islamic punishments such as flogging and amputation amount to torture?
This article adopts the Third World Approaches to International Law (TWAIL) to examine the confirmation of charges decision of Pre-Trial Chamber I, the parties’ deliberation up until 25 May 2023, and the final judgment of Trial Chamber X in the present case.Footnote 10 According to this approach, the colonial legacy of international law influences the ICC’s decision-making process, which tends to favour Western powers over Third World states. As part of the Global South, Islam and Islamic law are often considered as ‘other’ by Western countries and the ICC’s operational system.Footnote 11 In this context, the decision of Trial Chamber X to consider Sharia punishments as crimes against humanity opens a new phase in support of the argument of TWAIL scholars that the entire body of international law could potentially be designed to further protect the white privilege of Western countries, dating back to the colonial era. Against this background, firstly, this article adopts TWAIL’s methodology to highlight what are argued to be Eurocentric,Footnote 12 imperialist,Footnote 13 and post-colonialistFootnote 14 traits in the Trial Chamber’s arguments in the Al Hassan case. Secondly, by rejecting the colonial hierarchy of the Western perspective on human rights and international criminal law, the article aims to pursue TWAIL’s objective to ensure that all cultural values and legal systems are treated with equal importance before the ICC. Keeping the TWAIL framework in mind, the next section explores Sharia law in the twenty-first century and, as is argued, its misinterpretation by the Prosecution and Trial Chamber X in the Al Hassan case.
The central hypothesis of this article is that the confirmation of charges, the trial judgment, and the Prosecution’s arguments are based on a narrow interpretation of the Rome Statute and demonstrate a perspective on Islamic criminal law and its punishments that emanates strictly from the lens of Western legal culture, which underpins dominant international legal standards. To substantiate this claim, Section 2 introduces the TWAIL methodology and how its perspective on human rights and international criminal justice has been adopted in this article. Section 3 outlines the relevant Sharia law and the purpose and values that underpin it, including an analysis of Sharia punishments, their implementation, the aims and the values they protect to counter the less nuanced approach towards them adopted by the Prosecution. Section 4 will present the tensions between Sharia law and international law in the context of the Rome Statute, highlighting concerns over the definition of torture, the exclusion of reservations, and the ICC’s limited engagement with Islamic legal traditions, as seen in the Al Hassan case. The final section will examine Article 21(3) of the Rome Statute as a potential tool to override the principle of legality and dismiss the cultural diversity of punishments by directly applying human rights standards as currently understood by international and regional human rights bodies.
2. Third World Approaches to International Law (TWAIL)
The Third World Approaches to International Law (TWAIL) is a critical methodology and an alternative perspective to the ‘mainstream international law scholarship’,Footnote 15 created in 1996 by ‘a decentralized network of academics’ at Harvard University, who shared ‘common commitments in their concern about the third world’.Footnote 16 TWAIL-ers do not intend to undermine the significance of international law. Rather, they seek to ‘make real’ its promise ‘to transform itself into a system based, not on power, but justice’.Footnote 17 In other words, TWAIL can be seen as a representation of a ‘dialectic of opposition’ and a resistance as well as a response to a hegemonic international law.Footnote 18 Hence, the primary objective of this approach is to ‘transform international law from being a language of oppression to a language of emancipation – a body of rules and practices that reflect and embody the struggles and aspirations of Third World peoples and which, thereby, promotes truly global justice’.Footnote 19 The modern experiences of the Muslim world align closely with those of the broader Third World, encompassing societies shaped by colonial rule and often characterized by a critical stance toward Western interpretations of international justice.Footnote 20 Considering that Islamic traditions are part of the so called ‘Third World’,Footnote 21 this article benefits from TWAIL’s methodology and related critiques to demonstrate Trial Chamber X’s possible biased interpretations of Sharia punishments and prohibitions in the Al Hassan case, despite ICC’s claims of universality.
TWAIL scholars highlight the European origins of international law,Footnote 22 designed on ‘a geographical bias (it was a European law), a religious–ethical aspiration (it was a Christian law), an economic motivation (it was a mercantilist law), and political aims (it was an imperialist law)’.Footnote 23 This ‘racialisation of positivist law’Footnote 24 as ‘the rules that are universally recognised by white men’Footnote 25 and that mainly feed white privilege was essential to the European ‘imperial expansion, … conquest and domination’ that subordinated non-European peoples and societiesFootnote 26 as ‘barbaric and backward’.Footnote 27 To complement the TWAIL dichotomy between ‘Civilized/Barbarian, Believer/Infidel, White/Black and Advanced/Primitive, that both underpinned and legitimized the spread of international law’,Footnote 28 the Critical Race Theory, known as the ‘twin sibling’Footnote 29 of TWAIL, introduced race as an additional category to assess the Eurocentric roots of international law.Footnote 30 The two theories intertwine and mostly overlap to demonstrate how international criminal law reproduces the ‘colonial discourse’, as rooted in Western-based knowledge systems, picturing Third World countries as the ‘Other’, ‘children’ of empire and ‘primitive and degraded subject[s]’,Footnote 31 that need to be brought into conformity with the dominant white culture.Footnote 32
Accordingly, international criminal law has been called out for its selectivity since the aftermath of the Second World War due to its retroactive creation of crimes and its failure to prosecute crimes committed by the victors.Footnote 33 In these terms, Judge Radhabinod Pal’s critical perspective in his dissenting opinion at the Tokyo Trial has been defined as ‘the prototypical Third World approach to international criminal law’.Footnote 34 Recently, the ICC has faced similar criticism regarding its selectivity, false universality, and systemic racialization of black people.Footnote 35 Out of 31 cases currently before the ICC, relating to 17 different investigations, 47 out of 54 defendants were from an African country.Footnote 36 On the other hand, the Court has rejected initiating investigations into cases involving Western countries, including alleged crimes committed by British forces in Iraq,Footnote 37 Canada’s treatment of Afghan detainees,Footnote 38 alleged crimes of Western allies in Colombia,Footnote 39 and US violence in Afghanistan.Footnote 40 It is worth mentioning, however, that the ICC has recently issued arrest warrants for senior officials in the Situations in UkraineFootnote 41 and Palestine.Footnote 42 These developments may indicate a positive change of direction in the Court’s focus and its willingness to prosecute individuals from powerful countries and Western allies for alleged international crimes, towards a truly universal application of the Rome Statute. However, the differences in the way the investigations in Ukraine and Palestine are being conducted raise concerns regarding the ongoing double standards of the Court. In the words of Kai Ambos, ‘West’s unreserved support for Ukraine in the name of a rules-based international order … rings hollow in their ears (states of the Global South) given the West’s own history of breaking the very rules of international law it now claims to be defending’.Footnote 43 Recently, the investigation regarding the Situation in the State of Palestine became stagnant and lost its momentum due to the involvement of major Western powers requesting to submit their observations.Footnote 44
This data lead TWAIL scholars to assert that ‘international criminal law has been portrayed as a tool of Western domination’ and that its claimed universality is nothing more than ‘an empty ideological superstructure’.Footnote 45 As such, the TWAIL framework has embarked on a mission to decolonize all aspects of international law by not only putting it into a historical context but also highlighting the colonialist agenda and including diversity in its interpretation.Footnote 46 As expected, the movement was faced with strong scepticism and fought the allegations that the primary objective of the TWAIL approach is to abandon the international law all together.Footnote 47 This critique has been extensively explained by the TWAIL scholars stating that ‘Resistance, not abandonment, becomes a position that fuels their approach to international law and their tool to reform, to reconstruct, the international normative project and the world order.’Footnote 48 The TWAIL scholarship is more interested in overcoming international law’s problems while remaining committed to an international normative regime based on existing institutional structures.Footnote 49 Additionally, as mentioned by Mutua, the purpose of the TWAIL approach is to ‘understand, deconstruct and unpack the uses of international law as a medium for the creation and perpetuation of a racialized hierarchy … that subordinate non-Europeans to Europeans’.Footnote 50 One of the means of this subordination is perpetuating the notion that the states of Global South are unable, unwilling, or incapable to engage and actively participate in the advancement of international law. This statement can be easily challenged when put into a relevant historical context. History shows that contrary to the voices of the opposition of the Western states, African and Asian states were not only active participants during the negotiation process of some of the international conventions but were also the main voices behind a broader scope of their application.Footnote 51
Consequently, these authors explain the ICC’s focus on the Third World as an effect of the Rome Statute’s structural design, including the principle of complementarity, which is rooted in the liberal criminal justice values.Footnote 52 ‘A specific European vocabulary of “progress” and “modernity”, along with the idea of “humanity” and “civilisation”, became pillars of an international order.’Footnote 53 This results, it is argued, in a racialized assessment of Third World national proceedings by the Prosecution as non-existent, impaired, or inferior to the Western liberal legal values, based on an assumption of cultural differences,Footnote 54 when they lack sufficient ‘mimicry’ of Western standards.Footnote 55
The international human rights framework is equally criticized by TWAIL scholars for its roots ‘in an arrogant Eurocentric rhetoric and corpus’,Footnote 56 demonstrated, for instance, by including terms such as ‘civilized nations’ in human rights instruments.Footnote 57 In this light, human rights rhetoric has been exploited by the West to justify their interventions in the Third World countries, represented as barbarians and cruel ‘savages’ which need to be rescued by a civilized Western ‘savior’.Footnote 58 The TWAIL methodology is devoted to unpacking this narrative and highlighting its implications. This duplicitous concern for human rights seems to omit the atrocities committed by the ‘saviors’ themselves.Footnote 59 NATO officials were never investigated for the alleged crimes in Kosovo or Libya while US/NATO forces escaped any accountability for the tragic turn of events in Afghanistan.Footnote 60 Even though TWAIL-ers are not entirely dismissive of human rights, it has been suggested that the international human rights corpus is, in fact, Eurocentric rather than truly universal in nature. This is because European standards are being imposed as universal standards.Footnote 61 This approach dismisses alternative interpretations of human rights based on cultural contexts, presuming that ‘human rights have been conceived in the West and hence should be promoted universally, disregarding Third World particularities’.Footnote 62 Additionally, the TWAIL perception indicates that the human rights corpus is presented within a framework that includes specific political forms, such as democracy and the liberal state, and has been instrumentalized to serve political objectives. For this reason, civil and political rights are prioritized over economic and cultural rights, which are of particular concern to the Third World countries. Consequently, TWAIL scholars advocate for a revision of the existing human rights corpus towards a more genuinely universal framework that embraces diverse interpretations rather than enforcing Eurocentric universalization. Similarly, the TWAIL assert that contemporary actors of international criminal law, including judges, prosecutors, lawyers, and academics, tend, on the other hand, to recognize the legitimacy of Third World legal systems only when they ‘mimic the legal imperatives of the West’ and align their domestic criminal justice systems to the model of the ICC.Footnote 63 On the other hand, they reject Third World legal values and domestic remedies as rudimentary and ‘inherently compromised’, ‘requiring international intervention’ in accordance with the ICC ‘global’ standards.Footnote 64
The TWAIL has been criticized for its over-emphasis on the Western powers rather than investigating human rights violations and the need for change more regionally. Since many post-colonial states have simply adopted or transplanted the law of the colonizer, TWAIL scholars assert that the decolonization on all levels is of paramount importance.Footnote 65 Moreover, there is an extensive critique against the Third World states when it comes to the treatment of their own citizens and the deployment of organized violence to suppress any dissent.Footnote 66 TWAIL scholars explain the two-tier division of the methodology: TWAIL I focuses on advancing and protecting the interests of the Third World countries, while TWAIL II develops a powerful critique of the Third World countries and aims to give a voice to the voiceless oppressed minorities.Footnote 67
In line with the TWAIL critique, the application of Islamic law is often seen as creating a conundrum with Western values and international law.Footnote 68 In the case of Refah Partisi v. Turkey, for instance, the European Court of Human Rights defined ‘the institution of Sharia law and a theocratic regime’ as ‘incompatible with the requirements of a democratic society’.Footnote 69 The basics of Islam, such as God being the source of rights, have been widely overlooked by the drafters of human rights instruments, such as the Universal Declaration of Human Rights on the grounds of impracticability and non-secular justification.Footnote 70 Hence, although the Declaration was crafted to be ‘value-free’, this approach might have been appropriate if subsequent instruments had allowed each culture to interpret it in accordance with their own values. However, the source of human rights was ultimately defined from a secular, positivist perspective, which marked a departure from a truly universalist approach.
Despite this history of indifference to Islamic values, the authors submit that the Islamic culture and Sharia are not inherently incompatible with human rights and international law. In fact, ‘the sources and methods of Islamic law contain common principles of good governance and human welfare that validate modern international human rights ideals’, aiming to protect the dignity of human beings.Footnote 71 However, the way in which international human rights and international criminal law have evolved seems to confirm TWAIL’s concerns about reviving Eurocentric interpretations of the law which undermine and demonize Third World values, practices, and legal systems, such as in the case of Al Hassan.
3. The purpose and values of Sharia law: Its legitimacy within the international legal system
Islamic law, based on the Qur’an (the word of God according to Islam) and the Sunnah (sayings, practices, and tacit approvals of the Prophet Mohammed) as the two fundamental sources of Islamic legislation,Footnote 72 is not an ancient law that ceased to apply in the contemporary world.Footnote 73 Rather, there are many countries with Muslim majority whose legal systems fully or partially apply Sharia,Footnote 74 including its prescribed punishments. Among the states where Sharia punishments are applicable to varying degrees are Sudan, Mauritania, and Nigeria in Africa; Saudi Arabia, Qatar, and the UAE in the Middle East; as well as Malaysia, Brunei, Indonesia, and the Maldives in South Asia, and Afghanistan and Pakistan in Central Asia.Footnote 75 Sharia punishments are applicable in these countries with a certain degree of variation, mostly based on the madhabs (schools of law) which they follow and their cultural differences.
According to the four main schools of Islamic law, there are three types of crimes/punishments in Sharia law: hudud (fixed penalties), qisas (retaliation), and tazir (discretionary penalties).Footnote 76 This classification reflects the gravity of the crime and its prescribed penalty, the evidentiary standards for proving the crime as well as the nature of the interests affected by the offence.Footnote 77 In essence, hudud could be described as offences mentioned in the Qur’an and hadith and entailing fixed penalties.Footnote 78 These crimes are, therefore, not only punishable by fixed penalties but also by the community as required in the Qur’an and the Sunnah.Footnote 79
While the applicability of hudud punishments in some Muslim-majority countries cannot be denied as part of the Islamic criminal law system, their execution remains rare due to the strict evidentiary rules stipulated in the fiqh (Islamic jurisprudence) that must be satisfied before any punishment can be applied.Footnote 80 While flogging and the death penalty are common in these countries, the implementation of rajm (stoning) has been a subject of extensive debate in practice.Footnote 81 It can be observed that new approaches to stoning in the literature, coupled with social unacceptance within Muslim societies, have led to its (practical) abolition in many countries.
This practice is largely associated with the traditionalist approach in Islamic law, which does not accept the radical interpretation of foundational sources such as the Qur’an and hadith in opposition to established methodologies of madhabs.Footnote 82 However, this is not the only perspective within the Muslim world. There are, in fact, diverse Islamic law interpretations in the literature which propose a reformist agenda through various means to abolish Sharia punishments.Footnote 83
The pioneer for reformist thought regarding Sharia punishments in Al-Azhar was Mohammed Abduh (1849–1905).Footnote 84 Abduh argued that Sharia punishments required reform according to the context in which they are applied. From the socio-legal perspective, he considers the deterrent role of punishment and argues that it is unjust to impose cruel forms of punishment, such as compulsory hard labour or banishment, on a community that is civilized and possesses a gentle demeanour. In such cases, confinement serves as a more fitting penalty. Conversely, it is impractical to inflict imprisonment on ‘savage people’ who remain undeterred by severe punishments.Footnote 85 According to this view, corporal punishment can be replaced by modern penalties such as imprisonment and fines because they are more effective in deterrence than previous punishments.Footnote 86
In addition, it is argued that when Muslims or non-Muslims are living in the ‘age of crisis and necessity’ (daruriyyat) that makes ‘prohibited permissible’, Muslim-majority states might suspend the application of hudud because of foreign domination.Footnote 87 Rather than on foreign impact, some claimed that this interpretation is based on the rationale of Prophet Mohammed who suspended hudud in the time of war and the Second Khalifa Umar who did not apply hudud for theft in the time of famine.Footnote 88 A similar argument has been given by Abdullah Bin Bayya, who argued that as Prophet Mohammed did not apply hudud in the conditions of war, it is not appropriate to apply hudud in ‘a land of anxiety where many Muslims feel uncomfortable with the hudud’s harsh physical punishments’.Footnote 89 Otherwise, under the hegemony of Western secular values, the application of hudud punishments might bring about negative implications even among the Muslim population.Footnote 90 Similarly, Dar Al-Ifta, one of the first pioneering foundations to issue fatwas in Egypt, indicated that the first aim of Sharia is to prevent a thief, and not to cut their hands off.Footnote 91 By pursuing this objective in the conditions in which the application of hudud punishments ‘distorts the image of Islam because these are not the conditions imposed by Islamic law’,Footnote 92 the Islamic punishments can be suspended. Moreover, it is affirmed by many scholars that the top priority for Muslims is to believe that the Sharia is the ideal law and that the hudud is valid in theory. The actual implementation of the hudud comes ‘at the discretion of the ruler/state and is not necessary for people to be Muslim’.Footnote 93
In modern times, calls for a moratorium on corporal punishment among other Islamic law punishments were made by Tarek Ramadan in 2005.Footnote 94 Arguing from within the Islamic legal tradition, Ramadan contended that the application of hudud should be conditional upon the state of the society, which must be a just, equitable, and well-governed Muslim society. Failing any of these, the implementation of hudud would not amount to adl (justice) but zulm (injustice).Footnote 95 The aims of this reformist movement have been described as efforts to ‘modernize Islam’ by integrating Western thought, using approaches both within and outside of traditional fiqh. Ebrahim Moosa noted that these scholars were ‘tremendously impressed by both the ideals and reality of modernity’.Footnote 96 This reformist tendency has often been praised and labelled in Western literature as ‘progressive’.Footnote 97 However, critics argue that the traditional approach also offers ways to interpret Islamic sources to address the challenges of modernity within a ‘well-established corridor provided in Islam’,Footnote 98 rather than relying on what they see as apologetic reinterpretations that could undermine the established legal methodologies developed by the madhabs.
Although this article follows a traditional interpretation of Sharia punishments, the authors acknowledge the value of diverse interpretations of Islamic sources, recognizing efforts to adapt these sources so as to address contemporary issues without compromising the fundamental principles of Islam. This diversity underscores the evolving nature of Islamic law as it engages meaningfully with present-day realities. Notably, radical interpretations have generally not gained support from Muslim-majority states or societies, and international criminal law history suggests that, without localized solutions, complex issues tend to intensify. Accordingly, this article advocates for respecting the diversity within Islamic law and through supporting – rather than interfering with – the internal debates taking place across the Muslim world.
3.1 Understanding the principles of punishment in Islam
3.1.1 The application of Hudud punishments in modern times, their strict evidentiary rules and their avoidance in case of doubt
In the application of hudud punishments, stern restrictions and meticulous conditions must be carefully implemented and met before the execution of such penalties.Footnote 99 As stated by Badar, the mens rea requirement for hudud crimes is direct intention (amd/qasd) and the mere knowledge or negligence does not satisfy the mens rea threshold for such crimes.Footnote 100 According to Brown, for the violation of people’s rights, i.e., qisas (retaliation),Footnote 101 intention stricto sensu is not required; in this situation, the actual harm should be recovered. On the other hand, as hudud punishments are related to God’s rights, liability can only stem from intention.Footnote 102 Ibn Abdin (d. 1836), a Hanafi jurist, stated that part of the objective of hudud is to deter the offender from committing acts that lead to its application. Therefore, the offender’s intention must be of importance for the punishment to be executed.Footnote 103 This view is generally supported by the Prophetic hadith, which highlights the role of the good and the bad intention in performing good or bad acts.Footnote 104
Whilst the standards of proof required for the execution of hudud are derived from textual sources like the Qur’an and Prophetic hadiths, classical Muslim jurists set the relevant qualifying elements for their application by providing necessary legal definitions and conditions.Footnote 105 For hudud punishment to be applied to cases of adultery, for example, ‘four trustworthy and honest eyewitnesses must have seen … the intricate act of the sexual intercourse’.Footnote 106 Those who argue against hudud punishments because of their harshness overlook the fact that hudud punishments must first be proven beyond doubt and cannot be applied without a proof(s) that is very hard, if not impossible, to obtain, and that generally, Muslims are instructed to ‘restrict the application of ḥudud punishments as much as possible’.Footnote 107 The Qur’an ordains that those who commit adultery should be lashed 100 times, but just one verse later it states that anyone who accuses someone of adultery without four witnesses to the act is punished with 80 lashes for slander.Footnote 108 This has prompted Brown to ask the following question: ‘Why would a message seeking to establish an order of law set up harsh punishments but then make them almost impossible to apply?’Footnote 109
The main factor in eliminating the application of hudud is the principle of warding off if any ambiguity exists in the hudud. Footnote 110 This principle is based on the hadith narrated by Abu Hurayrah: ‘Avoid hudud punishments involving Muslims to the extent possible; if there is an exculpating cause for [the accused], then release him, as it is better that the imam make a mistake in pardoning than in punishing.’Footnote 111 Brown described this principle as ‘maximising mercy’.Footnote 112 Caliph Umar bin al-Khattab also stated the following: ‘I can suspend the hudud due to doubts, I prefer that to going through with the punishment in the face of doubt.’Footnote 113 In this regard, it is also essential to mention how the Prophet himself attempted to avoid the application of the punishment of stoning, if possible. In the most famous case, a man comes to the Prophet and confesses that he has committed adultery. The Prophet asks him if he is insane, and when he continues to insist the Prophet suggests that perhaps he only kissed the woman.Footnote 114
Based on this hadith, Muslim jurists concluded that for the hudud punishment to be applied for zina, the adulterer should confess at least four times. Even if he or she confessed to zina four times, the confession can be withdrawn at any time. Similar procedural safeguards apply to other hudud crimes. In terms of adultery as well as theft, it is stated that it is ‘nearly impossible for a thief or fornicator to be sentenced unless he wishes to do so and confesses’.Footnote 115 Hudud punishments are closely tied to two additional principles, namely ‘al-nahy an al-tajassus’ (forbidding the exposure of offences done in private) and ‘satr’ (turning a blind eye to private misconduct). These two principles, derived from the Qur’an Footnote 116 and the Sunnah,Footnote 117 are also safeguards against applying hudud punishments, which should be established by way of witness testimony or confession.Footnote 118
It is also argued that the legally appointed or elected ruler of a Muslim state or the state itself can suspend the application of hudud punishments in certain instances, as Allam and Ramadan stated earlier. Both backed their argument with reference to Umar ibn al-Khattab suspending the application of hudud for theft during the year of famine.Footnote 119 Al-Kasani has stated that ‘[i]t is not permissible to carry out the hudud without the probability of some benefit.’Footnote 120 Therefore, even if hudud is compulsory, the ruler or state can evaluate the conditions and suspend hudud if it creates injustice due to the changing conditions, such as the hardship of war or famine.
With the above in mind, it is not surprising that a Scottish doctor in Aleppo wrote around 1750 that ‘there are only six public executions in twenty years.’Footnote 121 Similarly, there is only one application of stoning recorded during the reign of the Ottoman Empire.Footnote 122 Importantly, the hadd for theft was applied only twice by the Prophet but this does not mean that only two thefts took place. Rather, there were only two thefts that were proven to be ‘prima facie amputate-able thefts’.Footnote 123
3.1.2 The aims of Sharia punishments
The failure of Trial Chamber X to consider that Sharia punishments amount to ‘lawful sanctions’ under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the Rome Statute – as will be explained in Section 3.2 – raises a further implication that Islamic punishments are considered torture, or cruel and inhumane treatment and therefore that they impose pain without a justified aim. Examining the literature on the philosophy of punishment in Islamic law reveals that, far from being purposeless, the aim of Sharia punishments is, in fact, ‘to protect the individuals, the community and the social system as a whole’,Footnote 124 serving legitimate penal aims, i.e., ‘deterrence, retribution, rehabilitation’.Footnote 125 Oudah underlined the main purpose of hudud punishments as protecting the family, individual right to property, social order, and system of government.Footnote 126 Beyond worldly punishment here on earth, punishment in the Hereafter is enough, whilst other acts require punishment both in this world and in the Hereafter since the latter alone ‘does not sufficiently deter people from committing forbidden acts’.Footnote 127
While, for example, qisas punishments, which are retaliation for homicide and bodily harm, are textually disclosed in the Qur’an as well as other holy books as ‘a life for a life, an eye for an eye and a tooth for a tooth’,Footnote 128 Hallaq states that the main reason for implementing qisas is ‘not exclusively an act of revenge but … rather the considered and measured equalization (supervised, in all cases, by the qadi) of loss of either limb or life’.Footnote 129 It is because qisas ‘was intended to reduce the power of the transgressing tribe by the same amount and extent suffered by the transgressed tribe, for the balance of power and strength, essential for survival, had to be maintained’.Footnote 130 So, for Hallaq, the main intention of implementing qisas is not to punish but rather recompense the loss, which restores the broken balance. This is one of the main differences between the Western and Islamic law. The restoration of this sought after balance of justice is further holistically attained through ‘[t]he expiation (kaffarah) or purification from sin’Footnote 131 as well as promoting general welfare and reducing social vices, as maintained by Khadduri.Footnote 132 All madhabs in Sharia, except the Hanafi, recognize this purpose in the sense that ‘the culprit atones for his sin and will not be punished for it in the Hereafter’.Footnote 133 The expiation is between the offender and God in terms of hudud punishments while in qisas, the victim’s heir can request compensation or blood money (diya) for expiation or retaliation. The expiation is one of the major differences between the Western penology and the philosophy of Sharia punishments.
Interestingly, Sharia law does not separate the aim of rehabilitating the offender from its aim of deterrence. It rather adopts a more holistic approach by considering both the offender’s earthly existence as well as their eternal life in the Hereafter. In this, God’s mercy is shown in the penalties that could be deemed harsh by some people. At the same time, the state is to assume its responsibility beyond punishing offenders by providing reformative and rehabilitative programs for them as members of the society.Footnote 134 To that end, if, during the criminal justice process, the state can help offenders ‘better recognise the nature of their actions and the effects on others and the community, it may aid psychological and moral growth, thereby serving reparative and rehabilitative ends’.Footnote 135
3.1.3 The infliction of pain in Western and Sharia punishments
There are many safeguards in Islamic law that prevent the infliction of pain that would be excessive to achieving the aim of the punishment. Rudolph Peters describes how punishment is postponed when ‘there are circumstances of a temporary nature endangering the life of the person who is to undergo corporal punishment, such as illness or extreme climatic conditions … until circumstances allow the punishment to be inflicted without the risk that the convict dies’.Footnote 136 Flogging, as a common penalty in Sharia, is to be administered with care by inflicting the least possible pain. For instance, the executioner ‘may not raise his hand above his head’ while administering the blows.Footnote 137 In addition, strokes should be equally distributed throughout the body and cannot hit critical spots like the head or genitals.Footnote 138 If the criminal is ‘weakened by a serious and incurable illness, the fixed punishment of lashing, which may not be waived after judgment has been given, is administered in a lightened form, for instance with a twined piece of cloth, a shoe, or, in extreme situations, with a bundle of fifty or a hundred twigs. In the latter case, provided that care is taken that all twigs touch the body of the condemned, only one or two blows are needed for administering the required hundred lashes’.Footnote 139
While the methods and aims of achieving justice in the context of Sharia law may significantly differ from the self-proclaimed ‘superior’ Western approach, it can be argued that the incarceration system practiced by the countries of the Global North is innately flawed. For years Abolitionists movements have comprehensively studied the shortcomings of the Western systems and have conclusively confirmed prisons’ inability to provide deterrence, let alone reconciliation and successful re-introduction of the offender back into society.Footnote 140
Studies show that imprisonment is a punishment which can cause a ‘high number of self-inflicted deaths’.Footnote 141 In England and Wales, a prisoner commits suicide every three days.Footnote 142 Irrespective of prison conditions, the mere ‘denial of personal autonomy, feelings of time consciousness, and lack of an effective vocabulary to express the hardship of watching life waste away’ could be factors which make imprisonment inherently more painful.Footnote 143 In addition, it is argued that as opposed to corporal punishment, incarceration spreads the pain over a far greater period. A study conducted in 2016 showed that 91% of the imprisoned population struggles with a mental health or substance disorder which cannot be effectively addressed in the current format of the conventional prison system.Footnote 144 Investing in the incarceration scheme has not proven to increase deterrence therefore ‘the costs associated with sustaining prisons are often disproportionate to the effects of the offending and they perpetuate cycles of harm’.Footnote 145 Considering which punishments align with human rights standards, the Committees, including the Human Rights Committee and the Committee against Torture, have ignored the long-term suffering of imprisonment and ruled out instead any corporal punishment imposing severe pain in a short period. In other words, they proposed six months of ‘a dull toothache’ instead of a one-hour migraine.Footnote 146 However, Scarre argues that ten months of imprisonment is in fact more inhumane than, for example, ten strokes of the birch.Footnote 147 Furthermore, on the impacts on dignity, Bernaz maintains that, ‘it is questionable logic that the act of receiving three strokes on the bottom is considered degrading, but the prospect of being sentenced to die in prison is not’.Footnote 148
According to the World Health Organization, incarceration affects prisoners’ mental health in many ways due to the isolation from family and other social networks, austere surroundings, loss of privacy and poor physical and hygiene conditions, aggression, bullying, fear, suspicion, the attitudes of unsympathetic and uninformed staff, lack of purposeful activity, personal control, the power to act as well as the loss of identity, the pressure to escape or to take drugs, shame and stigmatization, uncertainty, particularly among remand prisoners, and concern about positive re-integration into the larger community outside prison.Footnote 149 Even in prisons with relatively good conditions, mental and physical suffering still exists.Footnote 150 In contrast, mild corporal punishments such as flogging, when carried out with the prescribed methods described above, may inflict temporary physical pain but are less likely to result in long-lasting effects, leaving the offender in a good physical and mental condition.
4. The possibility of reconciliation between Sharia punishments and lawful sanctions: A critique of Al Hassan case
Many scholars have raised doubts about the basic tenets of Sharia law being able to coexist alongside the modern principles of international law. However, it is undisputed that Muslim societies around the world still consider the application of Sharia as an integral part of Islam. This section will critically evaluate the persistent attempts to challenge Western-born ideas of international justice. It will be argued that the dispute does not lie with Sharia’s incompatibility with internationally accepted human rights but rather the West’s inability to accept the true form of universalism. As argued by the authors in the paragraphs to come, the ICC had missed an incredible opportunity to appropriately interact with Sharia law, aiding the mission of the Court to establish itself as a truly universal mechanism of international justice.
4.1. Negotiating Sharia punishments in the travaux préparatoires of the Rome Statute and the Convention against Torture
A potential conflict with Sharia law is one of the determining factors for Muslim-majority states when considering the ratification of or accession to any international treaty.Footnote 151 The most evident example of this is the Sharia reservations placed by Muslim-majority states on international human rights treaties to avoid such a conflict.Footnote 152 The same issue arises with regard to ratifying the Rome Statute.Footnote 153
During the drafting process for the Rome Statute, Muslim-majority states raised their concern about the broad definition of torture that could be interpreted in a way that includes some Sharia punishments. Two options were proposed; the first was to adopt the definition of torture excluding ‘pain or suffering arising only from, inherent in or incidental to, lawful sanctions [in conformity with international law]’, whilst the second option was to adopt the definition of torture as provided for in Article 1 of the CATFootnote 154 that equally excludes ‘pain or suffering arising only from, inherent in or incidental to, lawful sanctions’ but without any reference to such lawful sanctions being compatible with international law.Footnote 155 After the discussions, the second option was adopted as Article 7(2)(e) of the ICC Statute.Footnote 156 During the travaux préparatoires of the CAT, it was argued that the ‘lawful sanctions’ exception should be restricted with reference to the Standard Minimum Rules for the Treatment of Prisoners.Footnote 157 However, many European states opposed this proposal, fearing that it would elevate the latter document to a legally binding status.Footnote 158 On the other hand, some states contended that the definition of torture would be undermined by a lack of qualification and proposed that the exception could be limited to lawful sanctions consistent with international law.Footnote 159 However, no consensus was reached and the clause was ultimately adopted without any qualification. Sharia punishments are considered ‘lawful sanctions’ in the context of the relevant judicial systems. Thus, in the absence of further qualification under the CAT, they do not constitute torture.Footnote 160
Muslim-majority states also made a request for reservations to be allowed in the Rome Statute concerning the practice of Sharia law.Footnote 161 However, other states denied this request, and as a result, Article 120 of the ICC Statute specifically states that ‘No reservations may be made to this Statute’. The representative of Sudan objected to this clause, arguing that ‘the right to express reservations should … have been granted. The removal of that right by Article 120 would be an obstacle to accession’.Footnote 162
Ultimately, voices of the opposition and different viewpoints raised by a number of states were ignored. As a result, despite the lack of an explicit line of interpretation pertaining to the notion of ‘lawful sanctions’, the concept of non-western and more comprehensive approach to justice was not meaningfully translated into the final draft of the Rome Statute, effectively excluding non-conforming legal regimes, including Sharia.
Despite the existence of extensive research on the relationship between Sharia law and international criminal lawFootnote 163 and the fact that many Arab states participated in the negotiations leading to the creation of the ICC, including the final negotiations of the Rome Statute in 1996–1998,Footnote 164 the concerns of Muslim-majority states regarding the Statute have not been remedied. As noted by Ali and Heer, during the Rome Conference delegates from Afghanistan, Lebanon, Libya, and Malaysia were keen to ensure the inclusivity of diverse legal systems within the Statute emphasizing the significance of a court that was ‘truly independent, fair, effective and efficient, so that it could dispense justice in accordance with principles acceptable to the international community, bearing in mind diverse legal systems and cultures’.Footnote 165 According to Khaliq, the richness of Sharia law, which is routinely disregarded, could enhance the role of international criminal law regarding diverse faith and cultures.Footnote 166
4.2. Al Hassan Judgment and the ‘applicable law’ saga under Article 21(c) of the ICC Statute
One missed opportunity was the ICC’s lack of engagement with Islamic law where there was a chance to do so.Footnote 167 Article 21(1)(c) of the Rome Statute could provide a proper venue to include Islamic law as applicable law in the part which states 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…’.Footnote 168 However, the records show that the ICC overlooks the examination of national jurisdictions, as it refers to the English and the US law more than local laws and legal traditions. A recent study found that out of 16,192 references included in the ICC judgments, ‘the Court rarely turns to national laws, but, when it does, it gives almost no attention to the laws of African and other global South countries and, instead, more frequently cites laws from the UK and the USA’.Footnote 169 One might question the universality of international criminal law as applied by the ICC when it relies so heavily on Western legal frameworks. This article is making a point in order to direct the attention of a diverse legal community towards the realization that in the Al Hassan case and in the similar cases in the future, specifically the one of Afghanistan, alternative legal frameworks, including Sharia law, must be considered.Footnote 170
A similar limitation to that found in the context of ‘lawful sanctions’ was added at the end of Article 21; this provision limits the application of general principles to those that ‘are not inconsistent with this Statute and with international law and internationally recognized norms and standards’.Footnote 171 The roots of international law lie in the Western legal tradition, and consequently, such a qualification of general principles by the ICC will exclude those principles which do not fit its seemingly secular approach.Footnote 172 In reality, basic legal tenets prevalent in the Western states, originate from canon laws.Footnote 173 The forceful dissemination of these ideals globally can be credited to colonialism and the prevalence of the Christian missionary activities. As such, international law cannot be deemed to be entirely secular given its history of origin and influence.Footnote 174 As argued by Paz, ‘the fact that in cases of emergency, ad hoc or otherwise, internationalists turn to a “universal consciousness” – that is entrenched in Christian reasoning – – demands questioning’.Footnote 175 This apparent disregard of Third World legal systems, including Islamic legal traditions, has led some scholars to propose the establishment of a hybrid court to handle the prosecution of crimes committed in Iraq and Syria by members of the so called Islamic State of Iraq and Syria (ISIS).Footnote 176
However, it must be noted that the tendency in international comparative law to pit Western law as secular against religiously rooted Sharia law is not entirely accurate. Indeed, one scholar deconstructed this depiction of Western law ‘as a thoroughly secular law’, a depiction which fails to recognize the religious dimensions borne out of the influence of Christianity on Western law and legal culture and ‘the role of religion in Western systems’.Footnote 177 He pointed to the hypocrisy of comparatists, who then appear capable of attaching religious aspects to ‘legal systems that exist beyond the boundaries of Western law’.Footnote 178 While modern international law may not stem directly from Christian scriptures in the way that Sharia law derives from the Qur’an and secondary Islamic sources, the historical influence that Christianity had on the development of modern international lawFootnote 179 means it is not completely alien to the religious values underpinning Sharia law.
The recent judgment against Al Hassan could further alienate and discourage Muslim-majority states from joining the ICC. According to Trial Chamber X, the application of Sharia Law in Timbuktu evidenced an organized policy to commit crimes against humanity as it involved widespread or systematic violence against the civilian population.Footnote 180 This accusation also encompasses the classification of Sharia punishments as torture, cruel treatment and outrages upon personal dignity, with the decision appearing to explicitly reject cultural relativism in favour of an approach of ‘radical universalism’.Footnote 181 The Defence in the case in question contended that adopting the Prosecution’s argument ‘would have catastrophic effects as concerns the potential universalization of the Rome Statute: clearly, States will not ratify the Statute for the mere fact that Sharia law is practiced in their territory renders them liable to be prosecuted for war crimes and crimes against humanity’.Footnote 182 This concern is visibly shared by Judge Akane in her Dissenting Opinion to the Trial Judgment where she asserted that
the Chamber must be mindful of the diversity of the forms of criminal punishment worldwide. In particular, to suggest that certain forms of punishment that are allowed/used in some non-western parts of the world, can never constitute ‘lawful sanctions’, in my opinion, may detract from the ‘international’ nature of the Court.Footnote 183
In addition, Trial Chamber X argued that the application of Sharia punishments served Ansar Eddine’s primary objective, mainly to demonstrate their victorious accession of the territory and their self-proclamation as the authority governing the population of Timbuktu.Footnote 184 According to the Chamber, it can be deduced that the implementation of the punishments legitimized the group’s establishment of a new political and religious order, according to their system of beliefs.
This implies that one of the main issues associated with implementing Islamic punishments was that the people of Timbuktu were unfamiliar with this system.Footnote 185 However, at the same time, the Chamber and the Prosecution considered the application of Sharia to be torture and thus unlawful due to the prohibition against torture being a jus cogens norm from which derogation is not allowed, irrespective of the public opinion on the matter. This discrepancy highlights the double standard in the Al Hassan case. Even though the authors of this article concur that the method in which Ansar Eddine applied Sharia cannot be considered appropriate, even by the reference to Islamic sources in many aspects, this does not prove that Sharia punishments in and of themselves are not applicable and constitute torture. One might inquire as to whether the inhabitants of Timbuktu would be willing to accept the implementation of Sharia punishments. Would the Chamber accept that these were legitimate rules that could not be considered as crimes against humanity and war crimes? The answer to this hypothetical question is negative as the Chamber indicated that Sharia punishments cannot be accepted due to their incompatibility with the internationally accepted norms.
According to the interpretation of the Pre-Trial Chamber, lawful sanctions could only be excluded from the definition of torture if they were ‘in conformity with international law’.Footnote 186 It then concluded that some Sharia punishments were not in line with international law and amounted to acts of torture. Although upheld by the majority of the judges of Trial Chamber X, this view was partially contested in the Dissenting Opinions by Judges Akane and Mindua. The Court’s restrictive interpretation was explicitly influenced by the recommendations from the Committee against Torture and other human rights bodies such as the Human Rights Committee.Footnote 187 It is safe to say that the Court did not consider the discussions in the travaux préparatoires of Article 7(2)(e) of the Rome Statute and Article 1 of the CAT, as discussed in Section 3.2 above. This shows a lack of consensus among states regarding the term ‘lawful sanctions’, implying that states had intentionally embraced constructive ambiguity on this matter. The ambiguities of what could constitute a legal sanction were partially addressed by Judge Mindua who admitted that the majority of Trial Chamber did not find it essential to address the matter.Footnote 188 He went on to discuss the legality of sanctions such as amputations, pondering whether, if administered in a painless manner yet still resulting in the loss of a limb, it would still be considered torture considering that the element of ‘suffering’ has been taken out.Footnote 189 When discussing flogging, Judge Mindua duly noted that there is no universal definition of its execution.Footnote 190 Given that both amputation and flogging are present as a legal penalty in many Muslim countries which are members of the United Nations, the practice is well established, and according to Judge Mindua operates within the ‘grey areas of international law’.Footnote 191 Therefore, it can be inferred that, although corporal punishments are illegal under the Rome Statute as is the case with the death penalty,Footnote 192 it does not render the practice unlawful for other states.
Considering the widespread application of Sharia punishments in the Islamic world, the Court’s failure to adequately consider Islamic states’ practice is further evident. Despite the different applications of Sharia, as already outlined, Islamic punishments are applicable to varying degrees in countries across the Arab World, Southeast Asia, and Central Asia.Footnote 193 Flogging is among the lawful sanctions in these countries, and there is no internal challenge to using such corporal punishments.Footnote 194 Moreover, it is not only Muslim countries that have corporal punishments in their penal codes; countries like Singapore and Trinidad and Tobago also implement them.Footnote 195 In addition, the Colombian Constitutional Court ruled that ‘whipping’ was a lawful sanction within the context of traditional justice for restoring community order.Footnote 196
The Trial Chamber in Al Hassan also failed to examine whether any subsequent state practice established an agreement among parties regarding the interpretation of the term ‘lawful sanctions’, only limiting itself to regional interpretations of the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights, and the European Court of Human Rights, all of which do not substantively engage with the notions of punishments under Sharia. In that regard, the Chamber did not examine the practices of Muslim states that employ these punishments. While the Court’s use of a variety of sources is commendable, they were not appropriate to adequately interpret the notion of ‘lawful sanctions’. Consequently, the Court gave preference to lex ferenda (the law as it should be) over lex lata (the law as it ‘is’). Additionally, the Court indirectly attributed a binding character to the statements of the Committee against Torture and other human rights bodies; a characterization that states have long rejected.Footnote 197 This method of interpretation, lacking a comprehensive examination of state practice and disregarding non-western traditions and cultural practices, may further weaken the ICC’s legitimacy in the eyes of Muslim-majority states.Footnote 198
Furthermore, Trial Chamber X contended that cultural relativism had been rejected by the drafters of the Rome Statute by recalling the proposal made by Arab countries such as Iraq, Kuwait, Lebanon, Oman, Qatar, Bahrain, Saudi Arabia, and others.Footnote 199 However, this does not prove that the universal definition of a ‘lawful sanction’ has been clarified. The Chamber itself acknowledged that the drafters left the meaning of lawful sanctions to the discretion of the Court.Footnote 200 Therefore, the claim of rejection of cultural relativism is not substantiated; instead, the drafters left the space to be filled by the Court to support the dynamic interpretation of the clause and to provide the space for other means of justice, considering the state practice. However, the Chamber opted for an interpretation of the concept that aligns with the European practice, rather than the global practice, by disregarding the experiences of ‘other’ world regions. Even though Muslim-majority countries are the minority, the Chamber is expected to respect their legal systems, which diverge from the European ones. Such interpretation precludes the possibility of applying Islamic law (or fails to distinguish the appropriate from the inappropriate application of Islamic law) notwithstanding the local population’s acceptance of such a legal system.
5. The interpretive challenge of Article 21(3) of the Rome Statute
Other than the torture clause in the Rome Statute, Article 21(3) could also present an impediment to interpreting the clause in line with the practice of Muslim-majority countries. In other words, it could be argued that the authors’ interpretation of Article 7(2)(e) of the Rome Statute (that Sharia punishments fall under the ‘lawful sanctions’ exception) could amount to a violation of Article 21(3) of the Rome Statute, which requires judges to take into account ‘internationally recognised human rights’. In addition of Article 21(1) and (2), the Rome Statute exceptionally provides an additional source for the primacy of human rights as provided for in Article 21(3). For the purpose of the argument of this article, this raises a critical question of how the ICC judges should comply with this obligation. This is a very legitimate question in order to prove our argument’s validity in the present article.
It is clear that the drafters of the ICC Statute provided a hierarchical structure of sources of law for the Court, similar to that of the International Court of Justice. However, Article 21(3) of the Statute introduces an additional source for the Court: ‘internationally recognized human rights’, which blurs the hierarchy by broadening the unclear reference to this term.Footnote 201 Gilbert Bitti argues that ‘Thus, “internationally recognized human rights” represent arguably a broader category of human rights which do not have to reach the level of “universal recognition”.’Footnote 202 According to Bitti, the ICC’s jurisprudence demonstrates that judges have assigned a broad interpretation to ‘internationally recognized human rights’, as they have extensively relied on the jurisprudence of regional courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights, as well as on resolutions adopted by the UN General Assembly.Footnote 203 Given that amending the Rome Statute is not feasible, this provision allows judges broad discretion in interpreting the Statute and other primary sources.
There are two possible approaches to interpreting this provision: a broad or a narrow interpretation. The broad interpretation risks overriding the Statute and other primary sources, contrary to the drafters’ intentions. Additionally, such approach could encompass universally recognized human rights instruments such as the ICCPR, along with the interpretations provided by its Committee. On the other hand, a narrow interpretation would respect the states’ original intent when drafting the Statute by limiting the application of this clause to the main Covenants, rather than incorporating non-binding interpretations from the Committees. In this context, it is important to outline the potential negative effects of a broad interpretation of Article 21(3) of the Statute.
The first pitfall of a broad interpretation of Article 21(3) of the Statute is the potential erasure of the distinction between human rights and criminal law. In other words, given the different scope and principles of international criminal law, it would not be appropriate to simply transpose international human rights standards into international criminal law. As noted by Bassiouni:
ICL is proscriptive, whereas international human rights law (IHRL) is prescriptive. In other words, ICL criminalizes, while IHRL does not. One of the consequences of this essential distinction is that ICL is at least theoretically bound by principles of legality, which requires its terminology to be more specific, whereas IHRL, which is not bound by such a requirement, tends to be more general.Footnote 204
Supporting Bassiouni’s distinction, the Appeals Chamber in the Gaddafi Judgment stated:
Indeed, the Court was not established to be an international court of human rights, sitting in judgment over domestic legal systems to ensure that they comply with international standards of human rights. However, if the interpretation proposed by the Defence were adopted, the Court would come close to becoming an international court of human rights.Footnote 205
The Appeals Chamber’s reasoning suggests that Article 21(3) of the Statute should be interpreted narrowly without criminalizing all human rights violations, which would undermine the well-established principle of legality in criminal law. Article 22(1)Footnote 206 of the Statute confirms the principle of nullum crimen sine lege, while Article 22(2)Footnote 207 of the Statute emphasizes strict interpretation, without extension by analogy.
A further potential pitfall of a broad interpretation is the risk of the misinterpretation of the drafters’ intention. It is asserted that states were intent on limiting the discretion of the judges, given the gravity of the international criminal charges. Joseph Powderly provides an apt reflection on this point that deserves lengthy quotation:
It has been argued that the objective of the Rome Conference was not to expressly codify rules developed before the antecedent criminal tribunals – the extent to which this occurred was little more than a welcome by-product – but was rather focused on arriving at a consensually drafted penal Statute constructed such as to attract as many ratifications as possible. It is evident that in drafting the Statute, states went to considerable lengths to attempt to ensure that the circumstances in which it would be deemed necessary to have recourse to judicial discretion in the interpretation and application of the law would be kept to an absolute minimum. In this respect, the internal law of the Court, taken as a whole, can be viewed as an attempt to reconfigure the traditional and prevailing contours of the international criminal judicial function.Footnote 208
States intended to limit judges to the restricted scope of crimes. However, as Powderly noted, Article 21(3) of the Statute provides ‘one obvious avenue via which the bench can free themselves from the constraints of the strict hierarchy of sources and the prioritization of text’.Footnote 209 While Powderly views this provision positively, as it allows judges to interpret the law progressively in line with changing circumstances, he also acknowledges that Article 22(2) of the Statute requires strict interpretation of the general principles of criminal law, including the definition of torture and the exemption of ‘lawful sanctions’.Footnote 210 Former British Supreme Court Judge, Jonathan Sumption, has also voiced concerns over the European Court of Human Rights’ judges’ discretion in interpreting the European Convention on Human Rights based on the ‘living instrument doctrine’, which is similar to the broad interpretation permitted by Article 21(3) of the Statute.Footnote 211 He argues that the European Court of Human Rights’ interpretation of the Convention through the ‘living instrument doctrine’ distracts the ‘natural implication from its terms’ and exemplifies ‘non-consensual legislation’.Footnote 212 Sumption’s criticism suggests that this doctrine has damaged the consensus on the Convention and created a ‘chink in the armour’ of the European Convention on Human Rights.Footnote 213
It is submitted that the broader interpretation of Article 21(3) of the Statute in a way which extends the definition of crimes provided for in the ICC Statute and ultimately convicts the offender would violate the legality principle and render the wording of Article 22(2) of the Statute redundant. The interaction between the above two provisions as understood by Leena Grover is significant in this regard:
First, the principle of legality in Article 22 applies to the interpretation of crimes and would not therefore have to guide interpretation of the scope and content of internationally recognized human rights. Second, the ‘background role’ for Article 21(3) – requiring that the interpretation of crimes in the Court’s jurisdiction does not violate internationally recognized human rights of the person investigated, prosecuted or convicted – would not prevent the Court from deeming it a guiding interpretive principle for another part of the Rome Statute (e.g., fair trial provisions).Footnote 214
This narrower role attributed to Article 21(3) of the Statute has been described as follows: ‘Article 21(3) relates to procedural consistency with IHRL, not substantive consistency.’Footnote 215 This interpretation suggests that the torture clause cannot be broadened by invoking international human rights instruments under Article 21(3) of the Statute.
Although Trial Chamber X in Al Hassan case did not take these considerations into account, Judge Akane in her Dissenting Opinion appears to support some of the arguments raised by the authors of the present article. Similarly, Judge Akane set out to show that as a rule, corporal punishments do not necessarily constitute torture that amounts to a crime against humanity.Footnote 216 This stems from the fact that not all violations of human rights amount to international criminal acts.Footnote 217 It is true that under Article 21(3) of the ICC Statute, the Court may choose to use the decisions of human rights bodies to interpret the matters at hand; however, as pointed out by Judge Akane, it may not always be appropriate to use them as an interpretive tool.Footnote 218 The primary issue with this approach is that the work of the regional and universal human rights bodies is directed at states, the main stakeholders, whereas international criminal law is focused on individual criminal responsibility for the commission of international crimes.Footnote 219 In this way, Judge Akane demonstrated that the obligation under Article 21(3) of the Statute is not necessarily understood to mean accepting the interpretation of human rights bodies such as the Human Rights Committee and the Committee against Torture.
Developments in the interpretation of the legality principle in different areas of international law tend to define this principle not only as limited to the classical nullum crimen, nulla poena sine lege but also as implying a certain level of foreseeability as lex certa and lex stricta. This implies that the accused can foresee the punishability of the acts from the interpretation of the law, excluding any application by analogy, since the assessment must be conducted on a case-by-case basis.Footnote 220 The case-law of the European Court of Human Rights, for instance, envisages a clear correlation between the degree of foreseeability of criminal law provisions and the personal liability of the accused;Footnote 221 hence, the provisions must be accessible to the individuals and sufficiently clear, in a way that such individuals can reasonably assess the criminal nature of their act and the associated penalty.Footnote 222 The Court also had the opportunity to examine this principle in relation to alleged crimes against humanity and war crimes. In Korebely v. Hungary, the foreseeability principle was assessed, taking into account the domestic qualification of crimes against humanity and the additional international elements.Footnote 223 Moreover, in Kononov v. Latvia and Milanović v. Croatia, the Court considered the flagrant unlawful nature of the acts as a clear indicator to the offender that his conduct could have constituted a war crime, in addition to inferring foreseeability from his professional activity and education.Footnote 224 In light of the above, the framework developed by the European Court of Human Rights rings very close to international criminal law.Footnote 225 The International Criminal Tribunal for the Former Yugoslavia, for instance, explicitly recalled the foreseeability and accessibility test developed by the European Court to substantiate its reasoning in the Vasiljević case.Footnote 226 The same test has influenced the recent jurisprudence of the ICC,Footnote 227 which has applied an even stronger version of the foreseeability principle in the case of Ali Muhammad Ali Abd-Al-Rahman, assessing whether the criminal laws applicable to the accused under international law were accessible and foreseeable at the time of the events,Footnote 228 namely if he was in a position, as an ordinary person, ‘to understand and comply with his obligations … under international law’.Footnote 229 Accordingly, the Pre-Trial Chamber in the Al Hassan case should have considered whether the applicable international criminal law was ‘sufficiently clear and accessible to the accused’,Footnote 230 in other words, whether Al Hassan could have known that the application of Sharia law would be considered an international crime by the ICC.Footnote 231 On the contrary, Trial Chamber X dismissed all arguments related to a mistake of fact or law, not taking into the consideration the accused’s background, experience, and knowledge.Footnote 232 Since Islamic culture and religion constitute an essential element of individuals’ lives in Muslim societies, regulating their beliefs and behaviour, the Chamber should have given due consideration to the religiousFootnote 233 and cultural norms present in various Muslim communitiesFootnote 234 and how Sharia norms were perceived by Al Hassan’s community. In the words of Judge Akane, not all human rights violations, especially considering their rapid development and the differences in perception, give rise to the individual criminal responsibility.Footnote 235 This ambiguity is best resolved by the states and not by judicial interpretation.Footnote 236
James Anaya, the UN Special Rapporteur on the rights of indigenous peoples, has criticized the condemnation and lack of recognition by local, regional and national authorities of traditional practices used by indigenous communities to ensure justice, as diminishing legal pluralism and showing bias against cultural forms of justice,Footnote 237 perpetuating discriminatory and prejudicial attitudes against indigenous peoples and their justice systems. Similarly, at the international level, it is imperative to provide a space for cultural groups to interpret international human rights norms according to their diverse understandings.Footnote 238 On the contrary, a disregard of the cultural forms of justice and the criminalization of traditional practices could lead to a continuation of colonial repression, bearing in mind that people in the Global South are already suspicious of international law ‘due to its connection with colonialism and the West’.Footnote 239 Accordingly, it has been argued that disregarding the traditional practices of judicial punishments in a local contextFootnote 240 in favour of the Western-style punishments could result in inflicting more pain on the individual and the community.Footnote 241
As outlined in the present article, the application of imprisonment, for instance, can produce more suffering than traditional punishments among specific cultural groups, resulting in families suffering from economic problems and exacerbating anguish. On this basis, the Indigenous and Tribal Peoples Convention appropriately indicates that ‘methods of punishment other than prison shall be given preference’Footnote 242 in such cultural contexts. Furthermore, penalties based on cultural and traditional practices are perceived as a means to cleanse the offender in the eyes of the community and facilitate their reintegration into society.Footnote 243
Undermining the role of local cultures and systems of laws within the local penal system can be destructive for the community.Footnote 244 If the traditional sanctions are based on religion, such as within Islamic communities, the application of such punishment is also meant to cleanse the offender in the eyes of God. In these situations, according to Khadduri, the rapprochement between religion and law should be carried out in practice.Footnote 245 Significantly, some Muslim jurists maintain that if the offender received the prescribed punishment for the crime committed and repented from the sin(s), the punishment in the Hereafter is dropped.Footnote 246 It is submitted that offenders should be given the right to be punished with a penalty that encourages repentance and reform. According to Kamali, this should be considered an essential part of Sharia court proceedings in all criminal trials, including hudud.Footnote 247 For instance, according to the Qur’an 24:2, an unmarried man or woman found guilty of sexual intercourse outside marriage should be sentenced to 100 lashes. Therefore, a Muslim offender who commits fornication believes that the only punishment that allows them to clean their soul and seek forgiveness before God is this number of lashes. However, if the person is sentenced to imprisonment, it undoubtedly means inflicting more pain and suffering on them while at the same time disregarding their beliefs and the punishment they believe still awaits them in the Hereafter. Had the ICC Trial Chamber in Al Hassan engaged with a similar analysis of the values associated to Sharia punishments by Muslim communities, it would have probably recognized Sharia punishments as lawful sanctions, avoiding criminalization of domestic norms and traditional practices of Islamic law. Arguably, such a conclusion would have supported the unforeseeability of the categorization of Sharia punishments by the ICC as international crimes in the eyes of Al Hassan.
As mentioned, the perception of Sharia law by Al Hassan’s community constitutes an additional element to assess the degree of foreseeability of the criminal conduct in applying Islamic punishments by the defendant. It is reasonable to assert that Mali, and particularly Timbuktu, has a long history with Islam and Sharia law which was a respected legal system in the country before and after 2012. In this context, qadis (judges in the Muslim community empowered to resolve disputes under Sharia) and skeihks (qualified religious leaders) played a pivotal role in addressing the concerns of the local population, including matters of personal law such as marriage and divorce, as well as public law including theft and adultery. Despite the dichotomy between the statements of the Defence and the Prosecution regarding the varying level of the adherence to the Sharia principles of the local population, Trial Chamber X has noted that a concern for the raising influence of the Western ideas among the young generation was a subject of discussion among the more traditionalist members of the society.Footnote 248 In 2009 and 2010, the moral committees (comités des moeurs) established in some communities deliberated to address these concerns and further put forward their demands before the Mayor of Timbuktu.Footnote 249 The primary objectives of the proposed reforms were to bring the society back to stricter adherence to the Islamic principles.Footnote 250 While this was not the view of the population as a whole, it was certainly not a reflection of the beliefs of the minority given the influence that the committees had over the population. This, therefore, suggests that some communities were more than familiar with the pillars of Sharia and were, moreover, striving to enforce the adherence to its principles by the means of the collective action to propose reforms to alter the secular character of the Malian Republic.
Furthermore, Judge Akane’s Dissenting Opinion brings attention to the wording of the ‘lawful sanctions’ clause under Article 7(2)(e) of the Statute, which by its mere existence implies that there is a certain set of punishments which under ordinary circumstances would constitute torture, however, in the light of the provided exception does not.Footnote 251 It would be, therefore, wrong to suggest that any punishment that meets the degree of pain or suffering cannot be regarded as a lawful sanction; in that event, the term ‘lawful sanctions’ would be rendered void and meaningless.Footnote 252 Trial Chamber X implicitly suggested that corporal punishments as a rule could never fall under the exception, and this view is also contested in the Judge Akane’s Dissenting Opinion. Although the Chamber acknowledged that the term ‘lawful sanctions’ remains undefined in both the Statute and the Elements of Crimes, its statement could result in categorizing a particular set of punishments, essentially creating a hierarchy without merit considering the ambiguity of the provision providing for exceptions.Footnote 253
In light of this discussion, the analysis supports and embraces the views of scholars like Murithi, advocating for more interaction between modern and traditional approaches to international criminal justice where both processes work collaboratively in parallel rather than as a dichotomous system which must favour one approach at the expense of the other. He elucidates this in the context of transitional justice and reconciliation, arguing that cultural approaches to conflict resolution which are endorsed by the affected local communities tend only ‘to be used at the periphery of reconciliation efforts whereas they should be informing mainstream peace-building initiatives’.Footnote 254 The same approach could be reasonably applied to the creation of a truly universal international criminal justice system, the one which includes engaging with the values of justice and reconciliation that are held by the affected communities,Footnote 255 including Sharia law. This has the potential to meet the challenges and could effectively contribute to building bridges on the legal grounds, at least for the legal benefit of the Muslims of the Global South whose legal rights may likely continue to remain at stake, as well as for the ICC in relation to questions of its legitimacy as a truly universal court.
6. Concluding remarks
The charges, their confirmation by Pre-Trial Chamber I and subsequently the judgment delivered by Trial Chamber X may negatively impact the perception of the ICC as a truly international court,Footnote 256 as they condemn the principles of Sharia law without meaningfully engaging with its purposes, values and enduring application and importance throughout the Muslim world, as unequivocally presented in this article.
In the final hearings of the Al Hassan case, the Deputy Prosecutor, Mr. Mame Mandiaye Niang, at the beginning of his statement, contended that this was not a case against Islam:
The trial we are in today, allow me to solemnly state and repeat that this is not a trial about religion. Religion is not on trial here. Islam is not on trial here. It is true, however, that religion can be used, any kind of religion can be used, as the ideological basis and a justification for perpetrating mass crimes.Footnote 257
Yet, and as discussed in the present article, the religious nature of Ansar Eddine and its administration were addressed in the charges in a manner that does not adequately engage with the societal values prevalent in the Muslim-majority states and fails to differentiate between the appropriate applications of Islamic law and the incorrect examples presented in the Al Hassan case, which this article argues are significant in understanding these complexities. Trial Chamber X equated Ansar Eddine’s adherence to the strictest interpretation of Sharia law with violent and essentially unlawful practices based on a religious ideology.Footnote 258 The use of terms borrowed from a politico-ideological discourse appears to obfuscate the fact that the charges characterize many of Islamic law’s basic tenets as criminal.Footnote 259
The present authors argue that the Prosecution and the Trial Chamber in the Al Hassan case have lost a golden opportunity to meaningfully engage with Islamic law and what it forbids, and in doing so, they disregarded the existence of such prohibitions in other Muslim-majority countries. Without any reference to Islamic sources or the history of Sharia law in Mali, they ignore the validity of Islamic law and the legitimate aims of its punishments. There also appears to be a lack of understanding of the basic tenets of Islam or the daily diverse practice(s) of Muslim communities. For example, among other things described as criminal are the prohibition of co-education,Footnote 260 or the compulsory closure of shops during Friday prayers.Footnote 261 Given the approach of Trial Chamber X and Pre-Trial Chamber I and the Prosecution to these matters, it may appear to Muslims and Muslim-majority countries that the ICC is now putting Islam itself on trial, and it seems that the opportunity to develop international jurisprudence using Islamic legal principles was not taken in the present case. While a deep understanding of Islamic law cannot be a demand, proper engagement and the use of experts to explain these nuanced notions is a reasonable expectation. One would contemplate why the Office of the Prosecutor did not make a good use of an invited expert who could have delved more into the permissibility of the application of corporal punishments in Islamic law.
Additionally, as Julie Fraser stated in her commentary on the case, ‘judges should engage with Islam and Islamic law, rather than side-stepping the issue’.Footnote 262 In doing so, the ICC could have effectively demonstrated that it is not Islam itself that is on trial but merely a misinterpretation of it.
In the Golden Age of Islam, cities like Baghdad and Cordoba exemplified Sharia law-based societies that allowed other religions and entities to practice their faiths within a diverse society. In modern times, several Muslim countries with considerable non-Muslim populations apply Sharia law without harming societal cohesion. Malaysia and Indonesia, for instance, have large non-Muslim communitiesFootnote 263 and manage to operate Sharia law alongside civil law without damaging their pluralistic structures.Footnote 264 These examples show that Sharia law does not conflict with a diverse society but supports flexibility and adaptability through positive engagement with legal pluralism.
In the words of Martti Koskenniemi, ‘[t]he meaning and application of international legal doctrines, principles, concepts, and treaty provisions are dependent on interpretative priorities and presumptions that reflect larger – but specific and often contested – views and assumptions about the nature and objectives of international law.’Footnote 265 As already outlined in this article, it is acknowledged that the construction of international law is predominantly rooted in Western perspectives rather than being inclusive of national and regional variations.Footnote 266 Early decisions rendered by the ICC evidenced heavy reliance on concepts and theories originating from Common and Romano/Germanic legal traditions. This phenomenon is viewed as ‘legal transplantation’ where the foundations of a particular field of law are based on the most accessible and authoritative system regardless of whether that system is the most appropriate or whether it offers the most clear and appropriate rule.Footnote 267
As a result, non-western laws are essentially labelled ‘no laws’ and systems which offer different conflict-resolution or punitive mechanisms than their western counterparts, and are classified as ‘other’ which automatically makes them inferior in status.Footnote 268 Additionally, it does not remain unnoticed that the ICC as an institution is removed from the locale of the majority of the populations it renders the judgements upon.Footnote 269 As noted by the law and human geography scholars, the location of the law (in this instance a specific legal institution), has a significant impact over the creation and the interpretation while limiting access to justice groups or individuals who had less interactions with the particular legal principles.Footnote 270 Location of the Court, composition of the staff, and the undue political influence further damages the image of the ICC which fuels the accusations of ‘victor’s justice approach’.Footnote 271 Moreover, the absence of references to African national and regional laws in ICC decisions ‘reflects not only a failure of the ICC judges to give the same weight to the laws of Africa as they do to those of Europe or North America but also how the system is stacked against the global South and the rest of the periphery and that this bias is woven into the very fabric of the historical development of law’.Footnote 272
When evaluating the Prosecution’s arguments and the Trial Chamber’s decision in the Al Hassan case, it is argued that a similar flaw emerges, as Islamic law is not merely overlooked but even criminalized.
In principle, the ICC is not bound by its previous rulings and therefore not governed by the doctrine of precedent.Footnote 273 This provides the judges with the significant freedom and immense discretion in the interpretation of ever evolving principles of international law, including being able to consider the cultural diversity of different traditional legal systems. The Al Hassan case is a direct example of how the Court decided not to use that privilege and as such further damage its credibility in the eyes of non-western states. To some extent, universalism and the consolidation of definitions pertaining to core international crimes paved the way for the increased pursue of accountability. However, it further highlighted and exacerbated the differences between different legal systems and perpetuated the division between the Global North and South. This system of ‘othering’ more traditional justice systems portrayed them as inferior and more importantly barbaric as well as inconceivable with ‘universal’ human rights which as argued by the authors of this article is simply not true. Removing bias and adopting an inclusive approach to international justice is the only solution for the ICC to live up to the expectation of what this institution is supposed to be – a truly international court.Footnote 274
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