The International Criminal Court, Islamic Legal Tradition, and the Arab World: Quo Vadis?

Almost twenty-five years after the conclusion of the Rome Statute, a ground-breaking international treaty which established the world’s first, permanent and (intended) universal International Criminal Court (ICC), the Court appears to have reached a quagmire, whereby its reach and jurisdiction is far from universal. The intended universal reach of the Court that was envisioned in 1998 has been undermined throughout the past quarter of a century by a singular operation of the Court and narrow interpretation of the Rome Statute that have placed Western international law principles and institutions on a pedestal, and largely neglected the alternative visions of law that exist in the world, particularly Islamic Law. The implication of this has been to alienate Islamic law countries from reach of the Court, notwithstanding that many of prosecutions that have been brought before the ICC have related to the Muslim world in one way or another. It is therefore critical that steps are taken to redirect the course towards a more inclusive, pluralistic Court, which acknowledges the legal traditions of the whole world, and not just those belonging to the West. In light of this, this comment seeks to provide some solutions for the Court, by illuminating the historical development of the Court and its place in the Muslim world, and exploring the points of contact and tension between international criminal law as it is traditionally conceived by Western international law institutions and Islamic law.

The Court is viewed as a Westernized adjudicator of international criminal law (ICL), which has alienated the East. This comment seeks to examine the extent to which the ICC has under-represented non-Western laws, traditions, principles, rules, and practices in its legal structure and system, and more importantly to propose solutions for the Court in order to address this issue. As Fraser has warned, “despite the salience of Islamic law for the ICC, recognition, engagement and understanding is only nascent.” 1 This comment explores this issue in the specific context of the Islamic legal tradition across the Arab world. The majority of populations in Arab countries, apart from Lebanon, are Muslims, and their constitutions place Islamic—or Sharia—law at the heart of their legal and political administration. Thus, it is important to clarify that this comment refers only to Arab States, and not to all Muslim majority States in the Muslim world.

Arab States refer to those post-colonial societies whose present realities have been significantly influenced by the colonial experience. This necessarily underpins their view of the imperialistic structures that persist within international criminal law (ICL), which, as this comment demonstrates, is central to the tension that exists between the westernized, or Eurocentric, conception of ICL that dominates international legal institutions, and Islamic law. The timely nature of this question cannot go unacknowledged, with many investigations under consideration by the ICC relating to Muslim-majority States, and the prominence of conflict in Islamic contexts,2 it is time for an international court that is truly universal in its jurisdiction. More particularly, this article addresses the extent to which Muslim majority states are skeptical of the ICC and its reliance on western systems of justice, and the extent to which Islamic law aligns with the principles of the ICC and could be better incorporated into the ICC’s jurisprudence.