ISLAMIC STATE PRACTICES, INTERNATIONAL LAW AND THE THREAT FROM TERRORISM In the post ‘9/11’ legal and political environment, Islam and Muslims have been associated with terrorism. Islamic civilisation has increasingly been characterised as backward, insular, stagnant and unable to deal with the demands of the twenty-first century and differences and schisms between Islam and the west are being perceived as monumental and insurmount- able. The 9/11 terrorist attacks have unfortunately provided vital ammuni- tion to the critics of Islam and those who champion a ‘clash of civilisations’. In this original and incisive study, the author investigates the relationship between Islamic law, State practices and international terrorism. It presents a detailed analysis of the sources of Islamic law and reviews the concepts of Jihad, religious freedom and minority rights within Sharia and Siyar. In eradicating existing misconceptions, the book provides a thorough commentary of the contributions made by Islamic States in the develop- ment of international law, including norms on the prohibition of terrorism. It presents a lucid debate on such key issues within classical and modern Islamic State practices as diplomatic immunities, prohibitions on hostage- taking, aerial and maritime terrorism, and the financing of terrorism. The book surveys the unfairness and injustices within international law—a legal system dominated and operated at the behest of a select band of powerful States. It forewarns that unilateralism and the undermining of human rights values in the name of the ‘war on terrorism’ are producing powerful reactions within Muslim States: the ‘new world order’ presents a dangerous prognosis of the self-fulfilling prophecy of an inevitable ‘clash of civilisations’ between the Islamic world and the west. Islamic State Practices, International Law and the Threat from Terrorism A Critique of the ‘Clash of Civilisations’ in the New World Order Javaid Rehman University of Ulster OXFORD AND PORTLAND, OREGON 2005 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA ©Javaid Rehman, 2005 Javaid Rehman has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: [email protected] WEBSITE: http//www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–501–1 (hardback) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain by MPG Books, Bodmin, Cornwall ‘The best form of Jihad is through persuasion’ Hadith of Prophet Mohammed, the Prophet of Islam (Peace be Upon Him) Acknowledgements This book is a result of my personal and longstanding interest in the field of international human rights law and Islamic law. After the terrorist attacks of 9/11 Islam and Muslims have increasingly been associated with international terrorism. It is nevertheless surprising to notice the lack of legal scholarship that deals directly with the possible relationship between Islamic law, Islamic State practices and international terrorism—a subject which in the post 9/11 legal and political environment has taken centre stage, and deserves a critical and detailed examination. Furthermore, in any such debate it is important to take account of the position of legal scholars from the world of Islam. While aiming to adopt an objective view of international law, the present study aims to reflect the positions, values and concerns emanating from Muslim legal scholars and jurists. The immediate incentive for working on a book project was provided through a grant made by the British Academy in June 2002. I am grateful for the generosity of the Academy for this award. The award allowed me to conduct very concentrated and detailed research into this area and to have the privilege of excellent research assistance. I was also able to con- duct research visits, consult documentation and in some cases interview experts on the subject in a number of countries. Many individuals and institutions have supported me in developing my ideas and for completing of this work. Special thanks are due to Professor John Bell (Cambridge University) for his kind support and encouragement during all these years. I would like to thank my colleagues, in particular Professor Christine Bell, Dermot Feenan, Jacinta Miller, Aisling Norrby and Ivan Topping from the University of Ulster for their time and support. I am grateful to the Library at the University of Ulster (Magee Campus) for providing me with all the relevant documen- tation. In this regard, I would like to thank Janice McQuilkin (the Law Librarian at Magee) who has very patiently and generously supported me, addressing all my enquires. I am very thankful to Professor Abdullahi Ahmed An-Na’im and Professor Martha Fineman (both at Emory University, USA) for their kindness and generous support. I am also very thankful to colleagues at the International Islamic University (Malaysia), Dhaka University (Bangladesh), Peshawar University (Pakistan) and Cornell Law School (United States) for their invitations and for allowing me to benefit from their research resources. I am grateful to Professor Danielle Conway-Jones (Hawaii Law School), Mr Kamran Arif (Peshawar University) and viii Acknowledgements Mr Saman Mosafi (an Iranian scholar based in London) for their comments and support in the completion of this book. I am extremely thankful to my research assistants Daisy Cooper, Patrick Ferrari and Rocio de la Calle Porta for their hard work and enormous support. I am enormously grate- ful to Richard Hart, Mel Hamill and other colleagues at Hart Publishing for their generous support and for agreeing to publish this book at very short notice. Finally, and most importantly, I would like to thank my fam- ily for their patience and understanding while I have been working on this difficult, complex and potentially controversial project. I would like to thank Maleeha, my parents, my sisters and their families for their love, kindness and support. I undertake responsibility for any errors and omis- sions. I have been able to take account of law and information available to me up until the end of October 2004, although minor amendments have been possible at proof stage. Javaid Rehman City of Derry, Northern Ireland February 2005 Contents Acknowledgements vii Table of Cases xiii Table of Treaties xv Glossary xix Introductory Reflections and the Scope of the Study 1 Scope of the Study 3 Structure of the Book 4 The ‘Clash of Civilisations’ and the ‘New World Order’ 7 1 The Sources of Sharia and the Ethos of an ‘Islamic’ Identity 10 Introduction 10 The Sources of the Sharia and Siyar 11 Secondary Sources of Sharia 14 Understanding the Content and Scope of the Sharia 15 Extrapolating Legal Norms from Religious Sources 17 Permutations of Legal Schools of Thought 18 Surveying Islamic State Practices 21 Impact of European Imperialism upon the Muslim Peoples 24 Modern Islamic States and Issues of Islamic Identity 26 The Organisation of the Islamic Conference (OIC) 27 Institutions of the OIC 28 Subsidiary Organs of the OIC 30 Affiliated Insitutions 33 Additional Institutions 37 Specialised Institutions and Organs 37 Standing Committees 40 Conclusions 42 2 The Sharia and Siyar in the Development of the Law of Nations 44 Introduction 44 Sharia and the Law of Nations 45 Jihad, Violence and International Terrorism: Articulation of Legal Principles 51 Contextualising Jihad and the Use of Force: Intertemporal Law and Compatibilities with Modern Norms of International Law 53 x Contents The Use of Force and Religious Tolerance 60 Ideology of Tolerance and Modern State Practices 65 Conclusions 69 3 Conceptualising Terrorism in the International Legal Order 71 Introduction 71 The Definitional Issues 73 Recent Developments on Definitional Issues 77 Review of Comparative Regional Perspectives on Terrorism 79 Examining the Substance of Terrorism in the Development of International Law 83 International Efforts to Formulate Legal Principles Prohibiting All Forms of Terrorism 85 Dealing with Specific Terrorist Activities 92 Conclusions 95 4Hostage-Taking in International Law and Terrorism 97 against ‘Internationally Protected Persons’ Introduction 97 Hostage Taking: Denial of Fundamental Human Rights and the Breach of Peremptory Norms of International Law 98 Islamic Perspectives on the Convention 101 Internationally Protected Persons and International Law 112 The New York Convention and Internationally Protected Persons 113 Islamic Perspectives on the Protection of Diplomats 117 Articulation of the Rights of Internationally Protected Persons Under Islamic Law 119 The Sharia and Hostage-Taking of Internationally Protected Persons 123 Abuse of Immunity by Internationally Protected Persons 126 Conclusions 129 5 Aerial and Maritime Terrorism 130 Introduction 130 Aerial Terrorism 131 Combating Aerial Terrorism 132 Dealing with Aerial Sabotage 136 Islamic Treaty Ratifications on Aerial Terrorism 139 Incidents of Conflict and Islamic States 141 Judiciousness and Approaches to Accountability 142 Accountability for Terrorist Offences