Exploring Legal Compatibilities and Pursuing Cultural Legitimacy: Islamic Law and the International Criminal Court

Abstract

Islamic law covers a broad scope and articulates norms regarding crime and punishment as well as what would today be considered international law. In fact, Islamic law contains many techniques relating to preventing and punishing crime, victim remedies and reconciliation, making it relevant to the elucidation and application of international criminal law by the International Criminal Court (ICC). This relevance is pertinent as many of the States with situations being considered by the ICC’s Prosecutor have a Muslim-majority, such as Afghanistan, Iraq, Libya, Mali, Palestine and Sudan. Furthermore, around two-thirds of the Red Cross’ (ICRC) present operations relate to armed conflicts in Islamic contexts. However, the positive role that Islamic law can play in such conflicts is under-appreciated. Despite the salience of Islamic law for the ICC, recognition, engagement and understanding is only nascent. For example, the Court has not, to date, drawn upon Islamic law in its rulings in such situations. This chapter advocates the ICC’s use of or reference to Islamic law in relevant cases to promote the Court’s cultural legitimacy in Muslim communities and to foster the engagement of Muslim-majority States in the Rome Statute system.

Keywords: Islam, International law, international criminal law, International criminal court,