Transitional Justice, the Seeds of Change: Secular Law or Divine (Islamic) Law, Quo Vadis?

29 Pages Posted: 21 Jun 2018

See all articles by Mohamed A. Arafa

Mohamed A. Arafa

Cornell University - Law School; Universidade de Brasília (UnB); Alexandria University - Faculty of Law; Indiana University Robert H. McKinney School of Law

Date Written: June 2, 2018

Abstract

In the aftermath of massive human rights misuses, victims have well-established rights to see the culprits penalized, to know the truth, and to receive reparations. Because systemic human rights transgressions touch not just the direct victims, but the entire society, states have obligations to guarantee that the defilements will not reoccur, and thus, a distinctive duty to reform institutions that were either involved in or incapable of averting the mistreatments. Academic scholars and activists cited that the core elements of a comprehensive Transitional Justice (“TJ”) strategy include criminal prosecutions and trials, principally those that address perpetrators considered to be the most accountable. Compensations (repressions), through which governments identify and take steps to address the injuries suffered. Such initiatives often have substantial components, as health services/cash payments as well as emblematic features, as public apologies or memorialization (day of remembrance). Furthermore, institutional reform of offensive state institutions such as the military, police enforcements, and judicial bodies (courts), to dismantle appropriately the operational machinery of manipulations and preclude reappearance of grave human rights abuses and impunity along with the Truth Commissions or other techniques to investigate and report on systematic patterns of exploitation, recommend changes and reforms in that field.

It should be noted that footsteps that must be taken in TJ should comprise peace process; renovation of institutions that are favorable to a stable and fair political system, including governance and judicial configurations; the procurement of the economic means required to achieve those ends, as economic stability is instrumental for political constancy, and the reinstatement of civil confidence (trust) in government’s institutions, means that the state works for all citizens irrespective of race, gender, nationality, religion, or political allegiance. Legally speaking, it is a combination of International Humanitarian Law (“IHL”), International Human Rights Law (“IHRL”), along with the due process principles in criminal prosecutions. This process proposed justice in all its forms, includes restorative justice, criminal justice, redistributive and social justices. This article will discuss TJ roots in religious perspectives generally in section two and if it is compatible with the recent positive international norms along with the TJ model in Islamic law in part three, highlighting Egypt as a case study regarding the death penalty as a tool of TJ. Finally it concludes that the axiomatic view of Islamic TJ policies is in essence fashioned by religious theories, laws, and divine practices and that Islam is more than appropriate to create a comprehensive design for victims’ care in transitional periods on both national and universal levels. This is a message that everyone can and must understand.

Keywords: Transitional Justice, Islamic Law, Human Rights, Humanitarian Law, Religion, Political Scene, Egypt, Death Penalty, Arab Spring, Uprisings, Criminal Procedural Law

JEL Classification: 29 Pages

Suggested Citation

Arafa, Mohamed A., Transitional Justice, the Seeds of Change: Secular Law or Divine (Islamic) Law, Quo Vadis? (June 2, 2018). Creighton Law Review, Vol. 9, No. 2, 2018. Available at SSRN: https://ssrn.com/abstract=3189520

Mohamed A. Arafa (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Universidade de Brasília (UnB) ( email )

Campus Universitário Darcy Ribeiro
Asa Norte
Brasília, Distrito Federal 70910-900
Brazil

Alexandria University - Faculty of Law ( email )

Moustafa Mousharafa Street
Soter
Alexandria
Egypt

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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