The time has come, perhaps, to discard or limit the visionary goal of ‘one law’ or ‘one code’ for the whole world and to substitute for it the more realistic aim of crystallizing a common core of legal principles.Footnote 1
1. Introduction
Numerous scholars have debated the formation, functioning, and practice of the International Criminal Court (ICC). One of the most contentious of these debates is on the issue of the general principles of law that can be applied by the Court in various cases. During the Rome negotiations, Islamic states supported the existence of an international criminal-justice institution. However, they also viewed it with suspicion and showed reluctance in ratifying the statute, because of the selectivity of the Court in the application of principles of criminal law.Footnote 2
It has been noted by scholars that there is a tendency towards viewing Islamic law as a static or non-progressive legal system, whose main principles are derived from religious texts.Footnote 3 Most Western scholarly debates centre on Islamic criminal law on a basic level without an in-depth grasp of the subject. This has been thought to be due to a lacuna in the available English literature on Islamic criminal law that ‘cries to be filled’.Footnote 4 It has also been argued that it is almost impossible for Islamic law to be compared to the Western legal system, because the legal systems of almost all Islamic states are based on the principles of Shari'a, making the path to the creation of a dialogue between Islamic law and international institutions virtually non-progressive.Footnote 5
The aim of this paper is to find out whether it is viable for the ICC to adopt principles of international criminal law from the Islamic legal system. As it is obviously impossible to cover every aspect of Islamic law and its counterpart in the ICC Statute, the scope of this paper is limited to some fundamental principles of Islamic criminal law and its compatibility with international criminal-law principles, namely the principle of legality, the presumption of innocence, the concept of mens rea, and the standards used by Muslim jurists for determining intention in murder cases. Other general defences such as duress and superior orders are also included in this paper.
To achieve its purpose, the second and third parts of this paper examine in detail the sources of Islamic law, categories of crimes, the leading schools of Islamic thought (madhāhib), and Islamic legal maxims (al-Qawā’id al-Fiqhīyah).
2. Islamic law (Shari'a)
Islamic law (Shari'a) has its roots deeply embedded in the political, legal, and social aspects of all Islamic states and it is the governing factor of all Islamic nations.Footnote 6 It is often described by both Muslims and Orientalists as the most typical manifestation of the Islamic way of life – the core and kernel of Islam itself.Footnote 7 Other commentators deem this an exaggeration and do not believe Islam was meant to be as much of a law-based religion as it has often been made out to be.Footnote 8 In any case, Islamic law, one of the recognized legal systems of the world,Footnote 9 is a particularly instructive example of a ‘sacred law’ and differs from other systems so significantly that its study is indispensable in order to appreciate adequately the full range of possible legal phenomena.Footnote 10
Islamic law, like Roman law, used to be a ‘jurist law’, in the sense that it was a product of neither legislative authority nor case law, but a creation of the classical jurists, who elaborated on the sacred texts.Footnote 11 However, with the first codifications in the mid-nineteenth century, Islamic law became ‘statutory law’, promulgated by a national territorial legislature.Footnote 12
It is no secret that most Islamic nations are viewed as being non-progressive, especially with respect to their national legal systems and implementation of criminal laws.Footnote 13 On the other hand, the Islamic states view the West and East as being unethical, immoral, and unduly biased towards the religious, cultural, and political aspects of Islam itself.Footnote 14
2.1. The application of Islamic law in Muslim states today
Modern Islamic society is divided into sovereign nation states. Today, there are 57 member states of the Organization of the Islamic Conference (OIC), which is considered the second-largest inter-governmental organization after the United Nations.Footnote 15 The organization claims to be the collective voice of the Muslim world and aims to safeguard and protect its interests.Footnote 16 Most states who joined the OIC are predominantly Sunni, with only Iran, Iraq, Azerbaijan, Bahrain, and Lebanon having a predominantly Shi'a population. Apart from Lebanon and Syria, all Arab states consider Islam the state religion and the source of law.Footnote 17
Professor Bassiouni divides these countries into three categories. The first category comprises secular states, like Turkey or Tunisia, who, despite their moral or cultural connection with Islam, do not subject their laws to the Shari'a. Countries from the second category, such as Iraq and Egypt, expressly state in their constitutions that their laws are to be subject to the Shari'a; therefore, their constitutional courts decide on whether a given law is in conformity with the Shari'a and can also review the manner in which other national courts interpret and apply the laws to ensure conformity.Footnote 18 The third category of states proclaims the direct applicability of the Shari'a. According to one commentator, the majority of Muslim states fall between the two poles of ‘purist’ Saudi Arabia and ‘secular’ Turkey.Footnote 19 Most states have been selective in determining which Shari'a rules apply to their national legislations.Footnote 20 As a consequence of colonialism and the adoption of Western codes, Shari'a was abolished in the criminal law of some Muslim countries in the nineteenth and twentieth centuries but has made a comeback in recent years, with countries like Iran, Libya, Pakistan, Sudan, and Muslim-dominated northern states of Nigeria reintroducing it in place of Western criminal codes.Footnote 21
2.2. Sources of Islamic law: Shari'a and Fiqh
Islam is a way of life akin to a system that regulates the believer's life and thoughts in line with a certain set of rules.Footnote 22 The term ‘Islamic law’ covers the entire system of law and jurisprudence associated with the religion of Islam. It can be divided into two parts, namely the primary sources of law (Shari'a in the strict legal sense) and the subordinate sources of law with the methodology used to deduce and apply the law (Islamic jurisprudence or fiqh).Footnote 23
Shari'a literally means ‘the pathway’Footnote 24 and, in its original usage, it meant the road to the watering place or path leading to the water, that is, the way to the source of life.Footnote 25 It rules and regulates all public and private behaviour as well as legal aspects.Footnote 26 The word Shari'a occurs once in the Qur'ān: ‘Thus we put you on the right way [sharī’atan] of religion. So follow it and follow not the whimsical desire (hawā) of those who have no knowledge’ (Qur'ān, 45:18).
Shari'a is derived directly from the Qur'ān and the Sunnah, which are considered by Muslims to be of divine revelation and thus create the immutable part of Islamic law, while fiqh is mainly the product of human reason. ‘Muslim jurists throughout history have not been concerned with establishing a particular field or science or even theory – to them the divine sources are comprehensive enough to encompass any possible human action, conduct or transaction.’Footnote 27 However, it is important to mention that in contrast to the belief of the Sunni, the Shi'a believe that divine revelation continued to be transmitted after the Prophet's death to the line of their recognized religious leaders (imams).Footnote 28 They thus consider as part of the divine revelation the pronouncements of their imams, whom they believe infallible.Footnote 29
2.2.1. Qur'ān
The Qur'ān is considered by Muslims to be the embodiment of the words of God as revealed to the Prophet Muhammad through Angel Gabriel. It is the chief source of Islamic law and the root of all other sources.Footnote 30 However, it is far from being a textbook of jurisprudence and is rather a book of guidance on all aspects of the life of every Muslim:Footnote 31 ‘We have sent down to thee the Book explaining all things, a Guide, a Mercy, and Glad Tidings to Muslims’ (Qur'ān, 16:89).
The Qur'ān consists of more than 6000 verses (ayat).Footnote 32 Jurists differ on the number of verses that are of legal subject matter, as they use different methods of classification for determining what constitutes a legal verse – estimates range from 80 up to 800 verses.Footnote 33 The legal verses are not accumulated in their own separate chapter (sura), but may occur alongside verses about belief, general behaviour, the nature of existence, or the history of bygone peoples. A particular judgment may occur on a number of different occasions and in different styles to deepen and broaden the understanding of the believer while reminding him of the rule.Footnote 34
The Qur'ān is an indivisible whole and a guide that must be accepted and followed in its entirety.Footnote 35 It was revealed, a few verses at a time, over a period of 23 years, ending with the death of Prophet Muhammad in 632 ce. To properly understand its legislation, one has to take into consideration the Sunnah as well as the circumstances and the context of the time of the revelation.
2.2.2. Sunnah
According to the common understanding of Muslims, the second sources of Islamic law are the sayings and practice of the Prophet Muhammad or the Sunnah, collected in hadīths. Footnote 36 While the Qur'ān is believed to be of manifest revelation – that is, that the very words of God were conveyed to the Prophet Muhammad by the Angel Gabriel – the Sunnah falls into the category of internal revelation, that is, it is believed that God inspired Muhammad and the latter conveyed the concepts in his own words.Footnote 37
The Sunnah is complementary to the Qur'ān as a source for knowing the divine will, which is explicitly stated in the Qur'ān itself: ‘And what the Messenger gives you, take; and what he has forbidden you, leave alone’ (Qur'ān, 59:7).
The Qur'ān authorizes the Prophet Muhammad to make legal decisions in response to developments in the Muslim community and delegates to him the task of explaining the judgements of the Qur'ān:Footnote 38
Judge between them according to what God has revealed, and do not follow them in their vain desires.’ Qur'ān (5:49); ‘No, by your Lord, they are not (truly) believers until they make you the judge of the disputes that arise among them, and find no resistance in their- selves to what you decide but accept (it) with complete submission. (Qur'ān, 4:65)
2.2.3. Fiqh
When an issue is not specifically addressed in either the Qur'ān or the Sunnah, the Prophet mandated the use of sound reasoning in reaching a judgment.Footnote 39 When appointing a judge to Yemen, the Prophet asked him:
According to what shalt thou judge? He replied: According to the Book of Allah. And if thou findest nought therein? According to the Sunnah of the Prophet of Allah. And if thou findest nought therein? Then I will exert myself to form my own judgement. [The Prophet replied] Praise be to God Who had guided the messenger of His Prophet to that which pleases His Prophet.Footnote 40
This concept of exerting one's reasoning in determining a matter of law is called ijtihad and it is the essence of ūsūl al-fiqh, a legal method of ranking the sources of law, their interaction, interpretation, and application.Footnote 41 The result of this method is fiqh, which literally means human understanding and knowledge in deducing and applying the prescriptions of the Shari'a in real or hypothetical cases.Footnote 42 As such, it does not command the same authority as does the Shari'a and it is the subject of different Sunni and Shi'a scholarly and methodological approaches.Footnote 43
In the formative period of Islamic law, the science of ūsūl al-fiqh did not yet exist as a separate branch of intellectual endeavour and no fixed hierarchy of sources was adopted.Footnote 44 Later, however, it became almost universally recognized that the Qur'ān has primacy over the Sunnah, followed by the two main proofs of law attained through human reasoning, namely ijmā’ and qiyas.
2.2.3.1. Consensus by collective reasoning (ijmā’). When the Qur'ān and the Sunnah do not provide an answer on an issue, learned jurists are to reach a consensus of opinion (ijmā’) – a practice established by the companions of the Prophet (Sahaba).Footnote 45Ijmā’ is a rational proof of Shari'a and, because of its binding nature, it requires that the consensus be absolute and universal; however, in practice, it has often been claimed also for rulings on which only a majority consensus existed.Footnote 46
2.2.3.2. Analogical deduction by individual reasoning (qiyas).Footnote 47Qiyas is the extension of Shari'a value or ruling from an original case to a new case, not found in the Qur'ān, the Sunnah, or a definite ijmā’, because the new case has the same effective cause as the original one.Footnote 48 An example of qiyas is the extension of the prohibition of wine to a prohibition of any drug that causes intoxication, because the prevention of the latter is the effective purpose of the original prohibition.Footnote 49
Other methods include istihsān (equity in Islamic law), maslahah mursalah (considerations of public interest), ’urf (custom), istishāb (presumption of continuity), and ijtihād (personal reasoning).Footnote 50
2.3. Categories of crime in Islamic criminal law
In Islamic law, offences have been divided into three categories according to complex criteria that combine the gravity of the penalty prescribed, the manner and the method used in incriminating and punishing, and the nature of the interest affected by the prohibited act.Footnote 51
The first category is hudūd crimes. These crimes are penalized by the community and punishable by fixed penalties as required in the Qur'ān and the Sunnah.Footnote 52 Both crime and punishment are precisely determined with some flexibility for the judge, depending upon the intent of the accused and the quality of the evidence.Footnote 53 Mostly, there are seven recognized hudūd crimes: ridda (apostasy); baghi (transgression); sariqa (theft); haraba (highway robbery); zena (illicit sexual relationship); qadhf (slander); and shorb al-khamr (drinking alcohol).Footnote 54 It has been argued that these matters cover the most vital areas of collective life (in the following order of priority: religion, life, family, intellect, wealth)Footnote 55 and require collective commitment to these values as law.Footnote 56 In these offences, it is the notion of Man's obligation to God rather than to his fellow man that predominates.Footnote 57 The state owes the right to Allah to implement the hudūd.Footnote 58
Opinions vary on which crimes are to be considered hudūd. For the Maliki school of law, there are two different sets of hudūd offences. Mawardi (Shafi'i school) claims there are four hudūd offences: adultery, theft, drunkenness, and defamation, while Ibn Rushid and Al Gazali (Shafi'i school) claim there are seven: apostasy, rebellion, adultery, theft, highway robbery, drunkenness, and defamation.Footnote 59
The second category consists of qisās and diyya crimes. In Islamic law, the punishment prescribed for murder and the infliction of injury is named qisās, that is, inflicting on the culprit an injury exactly equal to the injury he/she inflicted upon his/her victim. The right to demand retribution or compensation lies with the victim or, in cases of homicide, the victim's next of kin.Footnote 60 Sometimes, the relationship between this person and the offender can prevent retaliation.Footnote 61Qisās and diyya crimes fall into two categories: homicide and battery.Footnote 62 These crimes are thus treated in Islamic law as private, not public, offences.Footnote 63
The third category of crimes in Islamic law is called ta'azir crimes. These crimes are punishable by penalties left to the discretion of the ruler or the judge (qadi). They are not specified by the Qur'ān or Sunnah; any act that infringes private or community interests of the public order can be subject to ta'azir.Footnote 64 It is the duty of public authorities to lay down rules penalizing such conduct. These rules must, however, draw their inspiration from the Shari'a.Footnote 65 An example of a ta'azir crime is the trafficking of persons. It is not defined in the Qur'ān or the Sunnah but it constitutes a clear violation of the right to personal security, one of the five essentials of Islam.Footnote 66
Ta'azir is used for three types of cases:
1. Criminal acts which must by their very nature be sanctioned by penalties which relate to hudūd, for example attempted adultery, illicit cohabitation, or simple robbery;
2. Criminal acts normally punished by hudūd, but where by reason of doubt, for procedural reasons, or because of the situation of the accused, the hudūd punishment is replaced by ta'azir;
3. All acts under the provisions of the law, which are not punished by hudūd. Footnote 67
2.4. The leading schools of law (madhāhib)
Scholars tracing their doctrine to the same early authority regarded themselves as followers of the same school. Early interest in law evolved where men learned in the Qur'ān began discussions of legal issues and assumed the role of teachers.Footnote 68 At first, students rarely restricted themselves to one teacher and it only became the normative practice in the second half of the ninth century for jurists to adopt a single doctrine.Footnote 69 When prominent juristsFootnote 70 began to have loyal followers who would apply exclusively their doctrine in courts of law, the so-called ‘personal schools’ emerged and only a few of these leaders were raised to the level of founder of a ‘doctrinal school’, what is referred to in Islamic law as the madhhāb.Footnote 71 When they emerged, the doctrinal schools did not remain limited to the individual doctrine of a single jurist, but possessed a cumulative doctrine in which the legal opinions of the leading jurists were, at best, primi inter pares. Footnote 72
The four Sunni schools are the Hanafi, named after Imam Abu Hanifa, the Maliki, named after Imam Malik, the Shafe'i, named after Imam Al Shafe'i, and the Hanbali, named after Imam Ibn Hanbal. Out of these schools, the Hanafi school was geographically the most widespread and, for much of Islamic history, the most politically puissant. The Shi'a schools are the Twelvers, the Isma'ili, and the Zaydi.Footnote 73 Out of these, the Twelvers are the best known and have the largest percentage in Iran and Iraq.Footnote 74
It is hard to find consensus among the various schools and sub-schools; however, some consensus can be found among the four Sunni schools and some consensus among the four Shi'a schools. The difference in the rules for interpreting the Qur'ān is the fundamental element that separates the madhāhib from one another.Footnote 75 While there is no question that the Qur'ān is the first source of the Shari'a, followed by the Sunnah, there are differences among the schools as to the ranking of the other sources of law.
In order to create greater legal certainty, rulers could direct the judge (qadi) they appointed to follow one school.Footnote 76 This was the practice of Ottoman sultans, while Saudi kings left their qadi totally free in choosing the madhhāb and opinions for deciding cases, as there is a strong sense of independence among the religious scholars staffing the courts, based on their view that the realm of the fiqh is their prerogative and the state should not interfere.Footnote 77
While, today, there is a general understanding in Islamic republics that the law has to comply with the Shari'a, the concurrence of legislation with the whole body of Islamic law, including Islamic jurisprudence (fiqh), and the doctrine of a particular school of Islamic law is not always included.Footnote 78 An example can be derived from the Constitution of the Islamic Republic of Pakistan, which states that ‘All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah’. Similarly, the Afghanistan Constitution declares that ‘no law can be contrary to the sacred religion of Islam’, but restricts the application of the Hanafi jurisprudence in Article 130 only to cases ‘when there is no provision in the Constitution or other laws regarding the ruling on an issue’. In Saudi Arabia, on the other hand, Hanbali legal rules constitute the laws of the kingdom.Footnote 79 In Iran, the constitution states that laws and regulations must be based on Islamic criteria, which, in practice, is covered by the Shari'a, fiqh, and fatwa, and by the doctrine of the Ja'fari fraction of Islam.Footnote 80
3. Islamic legal maxims (al-Qawā’id al-Fiqhīyah)
In public international law, ‘maxims of law’ are viewed as synonymous with ‘general principles of law’.Footnote 81 Similarly, in Western legal traditions, maxims play a vital role in the process of judgment. The significance and the role of legal maxims in Western law are observed as follows: ‘A general principle; a leading truth so called, quia maxima est eius dignitas et certissima auctoritas atque quod maxime omnibus probetur – because its dignity is the greatest and its authority the most certain, and because it is universally approved by all.’Footnote 82 For instance, by the time of Coke,Footnote 83 the maxim actus non facit reum nisi mens sit rea Footnote 84 (an act does not make a person guilty unless his mind is guilty) had become well ingrained in the common law.
‘Legal maxims’ (al-qawā’id al-fiqhīyah) is a term applied to a particular science in Islamic jurisprudence. Islamic legal maxims, similar to their Western counterparts, are theoretical abstractions in the form, usually, of short epithetic statements that are expressive of the nature and sources of Islamic law and encompass general rules in cases that fall under their subject.Footnote 85 They are different from ūsūl al-fiqh (roots and sources of Islamic jurisprudence) in that the maxims are based on the fiqh itself and represent rules and principles that are derived from the reading of the detailed rules of fiqh on various themes.Footnote 86 One of the main functions of the Islamic legal maxims is to depict the general picture of goals and objectives of the Islamic law (maqāsid al-Sharī’ah).Footnote 87 Today, legal maxims become ‘sine qua non for any Islamic jurist and judge to master a certain level of rules (al-qawā’id) in order to be able to dispense Islamic verdicts and to pass accurate judgment’.Footnote 88 As Imam al-Qarrafi (d. 684 ah) affirms:
These maxims are significant in Islamic jurisprudence. . . . By it, the value of a jurist is measured. Through it, the beauty of Fiqh [Islamic jurisprudence] is shown and known. With it, the methods of Fatwa [legal verdict or opinion] are clearly understood. . . . Whoever knows Fiqh with its maxims (qawā‘id) shall be in no need of memorizing most of the subordinate parts [of Fiqh] because of their inclusion under the general maxims.Footnote 89
Legal maxims aid judges in comprehending the basic doctrines of Islamic law on any contentious issue. For instance, the Islamic legal maxim that calls upon judges to avoid imposing hudūd and other sanctions when beset by doubts as to the scope of the law or the sufficiency of the evidence is frequently referenced and applied by judges of the Abu Dhabi Supreme Court of the United Arab Emirates.Footnote 90 It has been noted that ‘exploring this opportunity would also give scholars, judges and jurists of Islamic law the ability to deliver sound and just legal judgments’.Footnote 91
It is difficult to trace the precise dates for the emergence of the legal maxims (al-qawā‘id al-fiqhīyah) as a distinctive genre of roots of Islamic jurisprudence (ūsūl al-fiqh). Suffice to say that al-qawā‘id al-fiqhīyah has gone through three stages of development.Footnote 92 The first stage can be traced back to the seventh century (610–632) as the Prophet of Islam was endowed with the use of precise yet comprehensive and inclusive expressions (jawāmi’ al-kalim).Footnote 93 Despite the fact that the term qawā’id (plural of qa'idah) was not explicitly mentioned in the expressions of the Prophet, the prophetic hadīths are full of expressions of legal maxims. For instance, the hadīth lā darar walā dirār (‘let there be no infliction of harm nor its reciprocation’); innamā al-a'māl bil-niyyāt (‘acts are valued in accordance with their underlying intentions’); and al-bayyinah ’alā al-mudda'ī wa al-yamīn ’alā man ankar (‘the burden of proof is on the claimant and the oath is on the one who denies’) are a few of those prophetic hadīths that emerged as Islamic legal maxims.
The second stage at which al-qawā’id al-fiqhīyah began to gain popularity was in the middle of the fourth century of Hijrah (ninth century ad) and beyond when the idea of imitation (al-taqlīd) emerged and the spirit of independent reasoning (ijtihād)Footnote 94 was on the edge of extinction.Footnote 95 At this stage, legal maxims became recognized as a distinct subject from usūl al-fiqh.Footnote 96 The first visible work on Islamic legal maxims, usūl al-Karkhī, was written by Hanafi's jurist, Ibn al-Hassan al-Karkhī.Footnote 97 This was followed by other significant contributions by jurists from other madhāhib (legal schools), namely the Shafe'i's, the Hanbali, and the Maliki schools.Footnote 98
The Islamic legal maxims reach the stage of maturity around the thirteenth century ah/eighteenth century ad. According to one commentator, ‘one of the distinctive features of this stage is the establishment of maxims as a separate science in Islamic jurisprudence, while at the same time the formula of their codification was standardized’.Footnote 99
The Mejell-i Ahkam Adliyye, an Islamic law code written by a group of Turkish scholars in the late nineteenth century, is said to present the most advanced stage in the compilation of the Islamic legal maxims.
Islamic legal maxims are divided into two types. The first are those that reiterate the Qur'ān and the Sunnah, whereas the second are those formulated by the jurists.Footnote 100 The former carry greater authority than the latter. The most expansive collection of legal maxims is known as al-qawā’id al-fiqhīyah al-aslīyah or al-qawā‘id al-fiqhīyah al-kullīyah (‘the normative/basic legal maxims’). This kind of maxim stands as the pillars of usūl al-fiqh; they could be applied broadly to the entire corpus of Islamic jurisprudence; each of these maxims has supplementary maxims of a more specified scope; and there is consensus among the legal schools over them.Footnote 101 The five generally agreed-upon maxims are as follows: (i) al-umūr bi-maqāsidhā (‘acts are judged by their goals and purposes’); (ii) al-yaqīn lā yazālu bil-shak (‘certainty is not overruled by doubt’); (iii) al-mashaqqatu tajlib al-taysīr (‘hardship begets facility’); (iv) al-dararu yuzāl (‘harm must be eliminated’); and (v) al-’ādatu muuhakamatun (‘custom is the basis of judgment’).
The maxim ‘certainty is not overruled by doubt’ has several sub-maxims, one of which reads ‘knowledge that is based on certainty is to be differentiated from manifest knowledge that is based on probability’ (yufarraqu bayn al-cilmi idhā thabata zahirān we baynahu idhā thabata yaqīnan). Two examples are illustrative in this regard:
When the judge adjudicates on the basis of certainty, but later it appears that he might have erred in his judgment, if his initial decision is based on clear text and consensus, it would not be subjected to review on the basis of a mere probability.Footnote 102
This maxim also applies where a:
missing person (mafqūd) of unknown whereabouts is presumed to be alive, as this is the certainty that is known about him before his disappearance. The certainty here shall prevail and no claim of his death would validate distribution of his assets among his heirs until his death is proven by clear evidence. A doubtful claim of his death is thus not allowed to overrule what is deemed to be certain.Footnote 103
4. Principle of legality and non-retroactivity
One of the rare provisions set out as a non-derogable norm in all of the major human rights instruments is the nullum crimen sine lege rule.Footnote 104 Article 22 of the ICC Statute confirms the core prohibition of the retroactive application of the criminal law together with the other two major corollaries of this prohibition, namely the rule of strict construction and the requirement of in dubio pro reo.Footnote 105 The prohibitions of retroactive offences together with the prohibition of retroactive penalties, nulla poena sine lege,Footnote 106 form the ‘principle of legality’.
In Islamic law, there is no place for arbitrary rule by a single individual or a group.Footnote 107 In fact, long before the Declaration of the Rights of Man, which, in 1789, first proclaimed the legality principle in Western law, the Islamic system of criminal justice operated on an implicit principle of legality.Footnote 108 Evidence of this principle can be found in the following Qur'ānic verses:
Nor would We visit with our wrath until we had sent a messenger (to give warning). (Qur'ān, 17:15)
Messenger, who gave good news as well as warning, that mankind, after (the coming) of the apostles, should have no plea against Allah. For Allah is Exalted in Power, Wise. (Qur'ān, 4:165)
Islamic law includes a number of legal maxims that complement this principle, such as: ‘the conduct of reasonable men (or the dictate of reason) alone is of no consequence without the support of a legal text’, which means that no conduct can be declared forbidden (harām) on the ground of reason alone or on the ground of the act of reasonable men; rather, a legal text is necessary.Footnote 109 Another maxim declares that ‘permissibility is the original norm’ (al-asl, fi'l-ashyā’ al-ibāhah), which implies that all things are permissible unless the law has declared them otherwise.Footnote 110Shari'a also establishes the rule of non-retroactivity, unless it is in favour of the accused:Footnote 111 ‘Say to the Unbelievers, if (now) they desist (from Unbelief), their past would be forgiven them; but if they persist, the punishment of those before them is already (a matter of warning for them)’ (Qur'ān, 8:38).
This principle is also mirrored in the tradition of the Prophet. When ’Amr b. al-'Ass embraced Islam, he pledged allegiance to the Prophet and asked whether he would be held accountable for his previous transgressions. To this, the Prophet replied: ‘Did you not know, O'Amr, that Islam obliterates that which took place before it?’Footnote 112 Similarly, the Prophet refrained from punishing crimes of blood or acts of usury that had taken place prior to Islam:
Any blood-guilt traced back to the period of ignorance should be disregarded, and I begin with that of al-Harith ibn ’Abd al-Muttalib; the usury practised during that period has also been erased starting with that of my uncle, al-'Abbas ibn ’Abd al-Muttalib.Footnote 113
Hudūd crimes are firmly based on the principle of legality, as the crimes themselves, as well as the punishments, are precisely determined in the Qur'ān or the Sunnah. Qisās crimes are bound to specific procedures and appropriate penalties in the process of retribution and compensation and thus also show their basis in the principle of legality.Footnote 114 More problematic are ta'azir crimes, which, according to some schools of thought, give very broad discretionary powers to the khalifa (ruler) and to the qadi (judge) regarding what they punish and how.Footnote 115 While ta'azir crimes are, for that reason, viewed by Western scholars as clearly violating the principle of legality,Footnote 116 Muslim scholars have mostly defended the wide discretion given to the judges, claiming that this is merely a safeguard that serves to balance the principle of legality and thus avoid the problem of its potential inflexibility.Footnote 117
The conclusion of this author is that there is nothing in the primary sources that would allow for ta'azir crimes to be exempt from the principle of legality.Footnote 118 Furthermore, to arbitrarily punish under ta'azir those hudūd offences that do not meet their procedural requirements amounts to nothing more than an attempt to circumvent the Shari'a rule.
5. Presumption of innocence
The provision on presumption of innocence as enshrined in Article 66 of the ICC Statute is threefold and its mechanics have been best illustrated by the European Court of Human Rights in Barberá v. Spain:
It requires, inter alia, that when carrying out their duties, (1) the members of a court should not start with the preconceived idea that the accused has committed the offence charged; (2) the burden of proof is on the prosecution, and (3) any doubt should benefit the accused.Footnote 119
Under Islamic law, no one is guilty of a crime unless his guilt is proved through lawful evidence.Footnote 120 One of the sub-maxims of the maxim ‘certainty is not overruled by doubt’ is the maxim that reads: ‘The norm [of Sharī’ah] is that of non-liability’ (al-aslu barā’at al-dhimmah). The Prophet is reported to have said ‘everyone is born inherently pure’.Footnote 121 According to the legal principle of istishâb, recognized by the Shafi'i and Hanbali schools, there is a presumption of continuation of a certain state, until the contrary is established by evidence.Footnote 122 Therefore, an accused person is considered innocent until the contrary is proven. In the words of Kamali, ‘to attribute guilt to anyone is treated as doubtful. Certainty can . . . only be overruled by certainty, not by doubt’.Footnote 123 The Prophet is reported to have said:
The burden of proof is on him who makes the claim, whereas the oath [denying the charge] is on him who denies;Footnote 124
Had Men been believed only according to their allegations, some persons would have claimed the blood and properties belonging to others, but the accuser is bound to present positive proof;Footnote 125
and
Avoid condemning the Muslim to hudūd whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam errs, it is better that he errs in favour of innocence (pardon) than in favour of guilt (punishment).Footnote 126
From the latter, hadith jurists have derived the general principle and it is agreed by the four major Sunni schools that doubt (shubhah) also fends off qisās.Footnote 127 The following case is illustrative in this regard:
During the time of the Muslim polity's fourth caliph ’Alī, Medina's patrol found a man in the town ruins with a blood-stained knife in hand, standing over the corpse of a man who had recently been stabbed to death. When they arrested him, he immediately confessed: ‘I killed him.’ He was brought before ’Alī, who sentenced him to death for the deed. Before the sentence was carried out, another man hurried forward, telling the executioners not to be hasty. ‘Do not kill him. I did it,’ he announced. ’Alī turned to the condemned man, incredulously. ‘What made you confess to a murder that you did not commit?!’ he asked. The man explained that he thought that ’Alī would never take his word over that of the patrolmen who had witnessed a crime scene, he was a butcher who had just finished slaughtering a cow. Immediately afterward, he needed to relieve himself, so entered into the area of the ruins, bloody knife still in hand. Upon return, he came across the dead man, and stood over him in concern. It was then that the petrol arrested him. He figured that he could not plausibly deny having committed the crime of murder. He surrendered himself and confessed to the ‘obvious,’ deciding to leave the truth of the matter in God's hands. The second man offered a corroborating story. He explained that he was the one who had murdered for money and fled when he heard the sounds of the patrol approaching. On his way out, he passed the butcher on the way in and watched the events previously described unfold. But once the first man was condemned to death, the second man said that he had to step forward, because he did not want the blood of two men on his hands.Footnote 128
Having realized that the facts surrounding the above case had become doubtful without a fail-safe means to validate one story over the other, the fourth caliph ’Alī released the first man and pardoned the second.Footnote 129
The system of proof applicable for hudūd and qisās makes it very difficult and sometimes almost impossible to prove a crime.Footnote 130 On this matter, the Qur'ān states: ‘And those who launch a charge against chaste women and produce not four witnesses (to support their allegation) flog them with eighty stripes and reject their evidence ever after, for such men are wicked transgressors’ (Qur'ān, 24:4).
6. Mens rea
For the first time in the sphere of international criminal law, and unlike the Nuremberg and Tokyo Charters or the Statutes of the Yugoslavia and Rwanda Tribunals, Article 30 of the Rome Statute of the International Criminal Court provides a general definition for the mental element required to trigger the criminal responsibility of individuals for serious violations of international humanitarian law. This provision is in line with the Latin maxim actus non facit reum nisi mens sit rea. But Article 30 goes still further, assuring that the mental element consists of two components: a volitional component of intent and a cognitive element of knowledge.Footnote 131
In Shari'a, one of the basic legal maxims agreed upon by Muslim scholars is al-umūr bi maqāsidihā, which implies that any action, whether physical or verbal, should be considered and judged according to the intention of the doer.Footnote 132 The first element of the maxim, umūr (plural for amr), is literally translated as a matter, issue, act, physical or verbal.Footnote 133 The second word is al-maqāsid (plural of maqsad), which literally means willing, the determination to do something for a purpose.Footnote 134 Thus, for an act to be punishable, the intention of the perpetrator has to be established. Evidence of this maxim can be found in the Qur'ān and the Sunnah: ‘That man can have nothing but what he strives for’ (Qur'ān, 53:39); ‘But there is no blame on you if ye make a mistake therein: (what counts is) the intention of your hearts and Allah is Oft-Returning, Most Merciful’ (Qur'ān, 33:5). This stand is further affirmed by the Sunnah of the Prophet:
Actions are to be judged by the intention behind them and everybody shall have what he intends;Footnote 135
Verily, Allah has for my Sake overlooked the unintentional mistakes and forgetfulness of my Ummah (community) and what they are forced to do;Footnote 136
and
Unintentional mistakes and forgetfulness of my Ummah (community) are overlooked.Footnote 137
Yet, the general rule in Shari'a is that a man cannot be held responsible for a mere thought. In Islam, a good thought is recorded as an act of piety and a bad thought is not recorded at all.Footnote 138 According to Imam Abou Zahra, an eminent scholar, the criminal intent is the intent to act wilfully, premeditatedly, and deliberately, with a complete consent about its intended results.Footnote 139 Intentional crimes must meet three conditions: premeditation, a free will to choose a certain course of action, and the knowledge of the unlawfulness of the act.Footnote 140 The difference between intentional and unintentional results is in the degree of punishment.
The established jurisprudence of the Supreme Federal Court of the United Arab of Emirates (UAE) recognizes different degrees of mental states other than the one of actual intent. Most notably, the UAE adheres to Malik's school of thought, according to which, in murder cases, it is not a condition sine qua non to prove the intent of murder on the part of the defendant; it is sufficient, however, to prove that the act was carried out with purpose of assault and not for the purpose of amusement or discipline. A practical example is set forth in one of Malik's jurisprudence sources: ‘if two people fought intentionally and one of them was killed, retaliation (qīsas) should be imposed on the person who survived.’Footnote 141
6.1. Standards used for determining intention in murder cases
Because the intention of a person is difficult to determine, Muslim jurists do not envisage an exploration of the psyche of the killer, or any extensive examination of behaviour patterns or the gradation of the relationship between the killer and the victim.Footnote 142 Instead, they consider the objects used in the crimes described by the relative hadīths as external standards that are likely to convey the inner working of the offender's mind and thus distinguish between ’amd (intentional) and shibh al-’amd (quasi-intentional).Footnote 143
In drawing analogies from relevant hadīths, the majority of Muslim scholars concluded that the mens rea of murder is found when the offender uses an instrument that is most likely to cause death or is prepared for killing, such as a sword, a spear, a flint, or a fire.Footnote 144 Abu Hanifa excluded all blunt instruments, such as a wooden club, from the list of lethal weapons and claimed they testify to quasi-intention, irrespective of the size of the instrument or the force applied.Footnote 145 However, he does not exclude an iron rod, relying on the words of the Qur'ān: ‘We sent down Iron, in which is (material for) mighty war’ (Qur'ān, 57:25).Footnote 146
However, Hanifa's disciples, Imam Abu Yusuf and Imam Muhammad al-Shaybani, rebutted his arguments, saying that the stone and stick mentioned in the hadīth refer to a stone and stick that, in the ordinary course, do not cause death, not just any stone or stick.Footnote 147 This is also the opinion of the majority of jurists.Footnote 148
The overall balance between using subjective and objective criteria in determining intent thus tips decidedly in favour of reliance on objective evidence,Footnote 149 which seemingly becomes a constituent element of the crime in itself, replacing the actual intent. Accordingly, Hanafi Ibn Mawdud al-Musili defines intentional killing as ‘deliberately striking with that which splits into parts, such as a sword, a spear, a flint, and fire’,Footnote 150 and Hanbali Ibn Qudama deems intentional any homicide committed with an instrument ‘thought likely to cause death when used in its usual manner’.Footnote 151
7. Duress and superior orders
The ICC Statute recognizes two forms of duress as grounds for excluding criminal responsibility, namely duressFootnote 152 and duress of circumstances.Footnote 153 The latter form is treated by English courts as a defence of necessity.Footnote 154 The elements of the two forms are almost identical. Unlike the jurisprudence of the ICTY, the ICC allows the defence of duress to murder that runs contrary to Islamic law (Shari'a), as will be discussed later in this section.
In international criminal law, the defence of superior orders is often confounded with that of duress, but the two are quite distinct. For superior orders to be a valid defence before the ICC, three conditions have to be established: the defendant must be under a legal obligation to obey orders of a government or a superior; the defendant must not know that the order was unlawful; and the order must not be manifestly unlawful.Footnote 155
In Islamic law, duress (ikrāh) is a situation in which a person is forced to do something against his will.Footnote 156 The Qur'ān acknowledges such a situation and prescribes thus: ‘Save him who is forced thereto and whose heart is still content with Faith’ (Qur'ān, 16:106). The Prophet is reported to have said: ‘My Ummah will be forgiven for crimes it commits under duress, in error, or as a result of forgetfulness.’Footnote 157
Under duress, the person commits a criminal act not as an end in itself, but as a means to save himself from being injured. If the threat concerns persons other than the person under compulsion, the Maliki consider it duress, some Hanafis do not, while the Shafe'i and other Hanafis believe it to be duress only if the threat relates to the father, son or other close relative.Footnote 158
Islamic law recognizes two kinds of duress:
1. Duress imperfect – a kind of duress that does not pose a threat to the life of the agent. For example, the (threat of) confinement for a certain period or subjecting the agent to physical violence that does not pose a threat to his life. This kind of duress has no force in crimes.Footnote 159
2. Duress proper – a kind of duress in which the life of the agent is threatened. Both the consent and the choice of the agent are neutralized. Under duress proper, certain forbidden acts will not only cease to be punishable, but will become permissible. These relate to forbidden edibles and drinks. Other acts, such as false accusation, vituperation, larceny, and destroying property of another, will remain unlawful, but punishment will be invalidated.Footnote 160 However, murder or any fatal offence are unaffected by duress and will not become either permissible acts, or subject to lenient penalty.Footnote 161
In the latter situation of duress, Shari'a disapproves of both courses of action that the person under duress can choose from. It prohibits doing harm to others as well as endangering one's own safety. In this situation, two legal maxims apply: ‘one harm should not be warded off by its like (another harm)’ and, when this is inevitable, one should ‘prefer the lesser evil’.Footnote 162 Therefore, if a person has to choose between causing mild physical harm or being killed and he chooses the former, his action is justified.Footnote 163 In the case of murder, however, both evils are equal, as no person's life is more precious than another's.Footnote 164
The issue of punishment in the case of murder is disputed. Most Islamic scholars agree that there must be retribution (qisās); however, some prescribe only blood money (diyat) on the ground that duress introduces an element of doubt.Footnote 165 Within Hanifa's school, there are three different opinions:
1. qisās must be borne by the forced person, for it is he who actually carried out the criminal act;
2. neither the person who inflicts duress nor the person under duress shall be punished by qisās, as the person who inflicts duress is merely an inciter, while the person under duress, neither has the criminal intent, nor is he satisfied with the result of the act and only blood money should be paid by the person who compels;Footnote 166
3. qisās should be borne by the person who inflicts, as the person under duress is just a puppet or a tool of murder at the hands of the one who threatens him. For a person it is lesser evil to choose the death of another than his own. This does not mean however that he will be blameless in the next world, because his sin shall be forgiven by God on the day of judgement.Footnote 167
In so far as the defence of superior orders is concerned, ‘Islam confers on every citizen the right to refuse to commit a crime, should any government or administrator order him to do so’.Footnote 168 The Prophet is reported to have said: ‘There is no obedience in transgression; obedience is in lawful conduct only;’Footnote 169 ‘There is no obedience to a creature when it involves the disobedience of the Creator.’Footnote 170 The order of a competent authority that implies punishment of death, grievous injury, or imprisonment for the disobedient will be treated as duress.Footnote 171 However, if the order is given by an official who does not have the necessary powers, it will only be treated as duress if the person under his command is sure that if he fails to carry out the order, the means of duress will be applied to him or that the official in question is in the habit of applying such measures when his orders are defied.Footnote 172 In other cases, no offender may seek to escape punishment by saying that the offence was committed on the orders of a superior; if such a situation arises, the person who commits the offence and the person who orders it are equally liable.Footnote 173
8. Rulers are not above the law (irrelevance of official capacity/immunity)
Similarly to Article 27 of the ICC Statute (irrelevance of official capacity), in Islamic law, there is no recognition of special privileges for anyone and rulers are not above the law. Muslim jurists have unanimously held the view that the head of state and government officials are accountable for their conduct like everyone else.Footnote 174 Equality before the law and before the courts of justice is clearly recognized for all citizens alike, from the most humble citizen to the highest executive in the land.Footnote 175 A tradition was reported by Caliph Umar showing how the Prophet himself did not expect any special treatment: ‘On the occasion of the battle of Badr, when the Prophet was straightening the rows of the Muslim army, he hit the stomach of a soldier in an attempt to push him back in line. The soldier complained: “O Prophet, you have hurt me with your stick.” The Prophet immediately bared his stomach and said, “I am very sorry, you can revenge by doing the same to me.”’Footnote 176 When a woman from a noble family was brought before the Prophet in connection with a theft and it was recommended that she be spared punishment, the Prophet made his stance on the equality of everyone before the law even clearer:
The nations that lived before you were destroyed by God, because they punished the common man for their offences and let their dignitaries go unpunished for their crimes; I swear by Him (God) who holds my life in His hand that even if Fatima, the daughter of Muhammad, had committed this crime, then I would have amputated her hand.Footnote 177
9. General remarks and conclusion
Islamic law has developed over many centuries of juristic effort into a subtle, complex, and highly developed reality. Such a complexity does not, however, make Islamic law indeterminable.Footnote 178 The differences between the jurists and schools of Islamic jurisprudence represent ‘different manifestations of the same divine will’ and are considered as ‘diversity within unity’.Footnote 179 ‘Islamic law, like any other, has its “sources” (al-masadir); it also has its “guiding principles” (al-usul) that dictate the nature of its “evidence” (al-adilla); it equally employs the use of “legal maxims” (al-qawa'id) and utilizes a number of underlying “objectives” (al-maqasid) to underpin the structure of its legal theory.’Footnote 180
This study shows that Islamic legal maxims, the majority of which are universal, play a vital role in the process of judgment. Thus, the ‘presumption of innocence’, the most fundamental rights of the accused as enshrined in Article 66 of the ICC Statute, finds its counterpart in the Islamic legal maxim ‘certainty is not overruled by doubt’ and its sub-maxim ‘the norm of [Shari'a] is that of non liability’ – a very explicit rule that obligates judges not to start the trial with the preconceived idea that the accused has committed the offence charged.
The second paragraph of Article 66 of the ICC Statute, which stipulates that the burden of proof is on the prosecution, is equivalent to the hadīth of the Prophet that states: ‘The burden of proof is on him who makes the claim, whereas the oath [denying the charge] is on him who denies.’ But the practice of the ICC says otherwise. Our examination of the law of mens rea reveals that there are exceptions regarding the application of the default rule of intent and knowledge to the crimes within the ratione materiae of the ICC. The Lubanga Pre-Trial Chamber (PTC) has affirmed that the ICC Elements of Crimes can by themselves ‘provide otherwise’. The PTC considered that the fault element of negligence, as set out in the Elements of Crimes for particular offences, can be an exception to the intent and knowledge standard provided in Article 30(1) of the ICC Statute.Footnote 181 In such situations, where conviction depends upon proof that the perpetrator had ‘reasonable cause’ to believe or suspect some relevant fact, the prosecution does not have much to do and the burden of proof, arguably, will lie upon the defendant – a practice that apparently conflicts with the above-mentioned hadīth.
As far as the mens rea is concerned, the exclusion of recklessness as a culpable mental element within the meaning of Article 30 of the ICC runs in harmony with the basic principles of Islamic law that no one shall be held criminally responsible for hudūd crimes (offences with fixed mandatory punishments) or qisās crimes (retaliation) unless he or she has wilfully or intentionally (’amdān) committed the crime at issue.
The approach followed by Muslim jurists in determining the existence of mens rea in murder cases warrants further consideration. They consider the objects used in committing the crime in question as external factors that are likely to convey the defendant's mental state.
Both systems collided regarding the validity of duress as a general defence to murder. Unlike the ICC Statute, which allows such defence, Islamic jurisprudence has a firm stand on this point, as no person's life is more precious than another's. This position is based on the Islamic legal maxim ‘one harm should not be warded off by its like (another)’.
Based on this preliminary study and other scholarly works,Footnote 182 there is no reason for the Islamic legal system, which is recognized by such a considerable part of the world, not to be included in comparative studies to reveal to the international judge a more complete picture of legal systems from which he or she is to derive general principles of law. As Rudolph Schlesinger put it: ‘The time has come, perhaps, to discard or limit the visionary goal of “one law” or “one code” for the whole world and to substitute for it the more realistic aim of crystallizing a common core of legal principles.’Footnote 183
