islamic law and international law...the interplay of islamic law and classical international law is...

1

Islamic Law and International Law

Peaceful Resolution of Disputes

E M I L I A J U S T Y N A P O W E L L

Powell090319ATUS_MU.indd 3 08-Sep-19 16:51:44

1Oxford University Press is a department of the University of Oxford. It furthersthe University’s objective of excellence in research, scholarship, and education

by publishing worldwide. Oxford is a registered trade mark of Oxford UniversityPress in the UK and certain other countries.

Published in the United States of America by Oxford University Press198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press 2020

All rights reserved. No part of this publication may be reproduced, stored ina retrieval system, or transmitted, in any form or by any means, without the

prior permission in writing of Oxford University Press, or as expressly permittedby law, by license, or under terms agreed with the appropriate reproduction

rights organization. Inquiries concerning reproduction outside the scope of theabove should be sent to the Rights Department, Oxford University Press, at the

address above.

You must not circulate this work in any other formand you must impose this same condition on any acquirer.

CIP data is on file at the Library of CongressISBN 978– 0– 19– 006463– 1

1 3 5 7 9 8 6 4 2

Printed by Integrated Books International, United States of America


Dla moich córeczek, Scarlett Sophii and Saski EmiliiAnd for Charles


vii

C O N T E N T S

List of Figures ixList of Tables xi

Acknowledgments xiii

1. Introduction 1

2. International Law, Islamic Law, and Islamic Law States 25

3. Islamic Law and International Law: Similarities and Differences 86

4. A Theory of Islamic Peaceful Resolution of Disputes 125

5. Islamic Law States and Peaceful Resolution of TerritorialDisputes 164

6. Islamic Law States and the International Court of Justice 202

7. Legal Schools and Regions 239

8. Conclusion 272

References 293

Index 311


Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford University Press (2020). © Oxford University Press.DOI: 10.1093/oso/ 9780190064631 .001.0001

3

Islamic Law and International LawSimilarities and Differences

Islamic traditions and law are neither “foreign” to international law nor are they different from “Western” conceptions of law.

— Awn Shawkat Al- Khasawneh, former vice president of the International Court of Justice1

In this chapter, I lay the groundwork for my theoretical argument about Islamic dispute resolution by describing the differences and similarities between the Islamic legal tradition and international law. In a way, this chapter constitutes a collection of arguments that relate more or less loosely to the theoretical chapter— chapter 4— and to each other, but nevertheless provide an important backdrop for the rest of the book. In a sense, in this chapter I am engaging in a comparative exercise that juxtaposes laws present in both legal systems. The focus here is a range of substantive as well as procedural laws. Any legal system, domestic or international, serves a multiplicity of purposes. Two, however, are the most important. First, a legal system provides substantive answers to questions, systematizes various human activities, and overlays categories onto certain concepts. Thus, the content of the rules matters greatly. Equally impor-tant is the second function: ordering human action— actions of individuals and human collectivities— into certain modes or procedures. The second purpose is particularly vital in the context of peaceful resolution of disputes, especially in legal mechanisms, such as arbitration and adjudication, where formal procedure plays a central role. Decisions of arbitration tribunals and courts simultaneously engage both modes of law: substance and procedure. Chapter 4, where I present my theory, explains that both types of rules can serve as points of convergence between sharia and classical international law. How rules are created, executed, where they come from, and how they are applied may correspond in both legal

1 Al- Khasawneh 2013, 39.


S i mi lar i t i e s and D i f f e re n c e s 87

systems. In general, the Islamic milieu espouses a distinct way of dispute resolu-tion, a nonconfrontational one that stands in sharp contrast with the overwhelm-ingly litigious culture of the West. Only certain specific methods of international dispute resolution, namely, the third- party non- binding methods, such as me-diation and conciliation, offer a parallel to principles promoted by Islamic law. Hence, setting the substantive differences aside, the preferred way, or procedure, of conflict management will be different in Islamic law and in some international conflict management venues. This is an important reality. Scholars argue that the authority of an institution to produce binding decisions is developed not only by the outcome, the substance of decisions, but also by the procedure employed to produce the outcome.2 Thus, as I further explain in chapter 4, where points of procedural convergence do occur, these can contribute to increased legitimacy of the international legal mechanisms in the eyes of ILS. Correspondence of procedural rules can either strengthen the effects of substantive similarity be-tween sharia and international law or provide a powerful countervailing force to any divergence in substantive law. In a more general way, legal homogeneity provides a bridge between legal systems. Legal heterogeneity, in contrast, pulls legal systems apart. The interplay of Islamic law and classical international law is an illuminating example of these processes.

This chapter provides a backdrop for the theory advanced in chapter 4, be-cause the matrix of procedural and substantive laws in international law and Islamic law constitutes the context in which ILS settle their interstate disputes. On the whole, the most pronounced points of divergence between sharia and international law hark back to the conception of secular versus divinely inspired law. The lesson to be drawn, though, is that legal disagreement is overshadowed by numerous points of convergence. Juxtaposing sharia’s tenets with inter-national law reveals important similarities between these two legal systems. These similarities can provide a springboard for inter- civilizational dialogue. Analytically, there is much to be gained through this type of comparison. Identifying analogous developments and processes at play in both legal systems is enlightening as one ponders the Islamic milieu’s views about institutionalized global justice.

This chapter starts with a brief account of the historical development of in-ternational law in the Muslim milieu. I then devote attention to the conversa-tion taking place in the scholarly literature. Some scholars believe that points of contention between sharia and classical international law prevent these legal systems from converging on any substantive or procedural point. Others enthu-siastically home in on similarities while dismissing existing discrepancies. As

2 Hibbing and Alford 2004; Tyler 1990.


88 I s l a m i c L a w a n d I n t e r n a t i o n a l L a w

I explain, my approach falls somewhere in the middle. Although there are sev-eral points of divergence between Islamic and international law, there also exist important analogous legal norms and principles that are at play in these two legal systems. Finally, I consider the particular differences and similarities between Islamic law and international law, and this is the bulk of the chapter. The chapter portrays both these legal traditions as dynamic and continuously evolving.

Historical Background

International law has been shaped by Western legal doctrine.3 The heavy influ-ence of the West has led some scholars to believe that rules of interstate behavior are “essentially the product of the European mind” and of “European beliefs.”4 The pronounced bearing of Western legal thinking is certainly visible across the mechanisms for peaceful management of international disputes, especially the legal mechanisms of arbitration and adjudication. International courts in particular feature traditional Western legal logic, argumentation, and juristic decision- making. The tradition of Islam, on the other hand, has its own distinc-tive way of thinking about international law. How has siyar, Islamic international law, contributed to the law of nations? Has there been any flow of legal know-ledge from the Islamic milieu to the West? While one cannot dispute Europe’s contributions to classical international law, it is essential to be familiar with the influences stemming from Islam.5 In the process of balancing competing interests and legal traditions— those of the West and those of Islam— the former largely defined the law of nations.

One of the first developments in international law dealt with state conduct during war and the treatment of civilians residing in conquered territories. In this area, as Awn Shawkat Al- Khasawneh notes, “the contribution of Islamic law was significant— and revolutionary— for its time. It prohibited the killing of noncombatants, enjoined respect for houses of worship, prohibited the cutting down of trees, required proportionality in response to wrongs committed.”6 But

3 As Gaubatz and MacArthur (2001, 242) argue, the concept of a more inclusive natural law that applies to “all people in all places” could be extrapolated from the works of Gentili, Grotius, Bodin, Vitoria, and Suárez. The more exclusive, European- centered international law dovetailed with the transition from natural to positive conceptions of international law in the eighteenth century. See also Mitchell and Powell 2011; and Roberts 2017.

4 Verzijl 1968, 435– 436. 5 Powell and Al Moussa 2019; and Weeramantry 1988. As Frick and Müller (2013, 11) argue, “there was no equality in the impact of the ‘Western’ political, cultural and religious traditions as compared to other traditions in terms of shaping the development of the discipline.”

6 Al- Khasawneh 2013, 30.



Islam’s contributions go beyond these rules to cover other areas, such as diplo-matic immunity, maritime law, asylum, interstate trade, laws of treaties, enemy territory and property, and laws of safe conduct.7 Additionally, as I mentioned in chapter 2, the Islamic milieu has contributed many scholarly treatises on in-ternational law. In the Middle Ages, specifically at the end of the eighth cen-tury, Muhammad ibn al- Hasan al- Shaybani, a prominent Islamic jurist, penned an Introduction to the Law of Nations, long before the time of Grotius’s De Jure Belli ac Pacis in 1625.8 This comprehensive volume on Islamic international law addressed previously uncharted domains of interstate interactions, with a partic-ular focus on dealings within the Islamic umma as well as dealings of the umma with the non- Islamic countries.9

According to Badr, Islam has experienced three distinct stages in the process of relating to the rest of the world: the age of expansion, the age of interaction, and the age of coexistence.10 During the first stage, which lasted for a little over a cen-tury after the birth of Islam, the interactions between the Islamic umma and the West were fairly conflictual, and thus siyar focused more on the laws of war than peace. Classical Islamic scholars saw the world as divided into two realms: the land of Islam, dar al- Islam, and the land of war, dar al- harb.11 Nevertheless, during these turbulent years many treaties were concluded between Islamic and non- Islamic entities, including the Constitution of Medina (622), which spelled out the relations between Muslims and the various clans inhabiting the area around Medina, most notably the Jews.12 It is important to note that while the Muslim community was not a state sensu stricto, as a discrete collectivity it saw a need to regulate dealings with others via legal means. Interestingly, during the age of expansion, there were important limitations on treaty duration: no agreement could exceed ten years, in harmony with a precedent set during the

7 See Bassiouni 2014; Fadel 2010; and Khalilieh 1998.8 For an in- depth analysis of Islam’s influence on Grotius, see Weeramantry 1988.9 The Islamic community, or umma, constitutes a fundamental concept of Islamic international

law. Of course, other areas of siyar were also developing during this time, including treaty law, diplo-matic immunities, and safe conduct.

10 Badr 1982, 56. 11 See Al Ghunaimi (1968) who dismisses the distinction between the land of Islam and land of war, arguing that this dichotomy is not grounded in Islamic ethics. See also Bassiouni 2014; and Fadel 2010.

12 The treaty addressed many issues and stipulated that representatives of all leading tribes, Muslim or non- Muslim, should participate in cases of negotiation with outsiders. God and Prophet Muhammad were endowed with final and absolute authority in all disputes arising between the tribes.



Prophet Muhammad’s lifetime.13 Also, many agreements concluded during this time included religious terms and concepts.14

The beginning of the age of interaction was marked by a gradual transition from the land of Islam/ land of war dichotomy to a three- pronged division of the world. A new category, the land of peace, dar al- sulh, was introduced.15 The land of peace comprised states that were not antagonistic toward Islam and entered into agreements with Islamic entities, but at the same time did not acknowledge Muslim authority over them.16 The conclusion of the age of interaction corresponds to the end of the Crusades and the expansion of the Ottoman Empire. The final stage, the age of coexistence, began roughly in the sixteenth century, according to Badr. Conflict between the Islamic domain and the rest of the world subsided, and peace became the norm for interstate rela-tions. From this period on, treaties concluded between Islamic and non- Muslim collectivities did not have to be confined to a fixed time limit. An excellent ex-ample of such a treaty is a military alliance entered into by Don Jaime II, James the Just, King of Aragon, and the Mamluk sultan of Syria and Egypt, al- Ashraf Khalil, which included the following stipulation: “The amity and friendship thus established will endure forever, for the kingdoms involved have become as one. This treaty will not be terminated by the death of either party or by his replace-ment; its provisions will be perpetuated over the years.”17

Interestingly, several Islamic legal scholars have challenged the distinction be-tween different divisions of the world, such as dar al- Islam, dar al- harb, and dar al- sulh. For instance, al- Zuhili writes that “this division has no textual support, for no provision is made for it either in the Qur’an or in the Hadith. It is instead a transient description of what happens when war flares up between Muslims and others. It is a narration of facts, similar to those confirmed by scholars of

13 Muhammad concluded a Treaty of Hudaybiyya with the Meccan chiefs, in which the two parties agreed to cease fighting for a limited period of ten years (Bsoul 2008, 117). 14 For example, the 630 treaty between Muhammad and the governor of Ayla, Yuhanna Ibn Ru’ba, includes the following religious language: “In the name of God, the Compassionate and mer-ciful. This is a guarantee from God and Muhammad the prophet, the Messenger of God, to Yuhanna ibn Ru’ba and the people of Ayla, for their ships and their caravans by sea. They and all that are with them, men of Syria and the Yemen, and seamen, all have the protection of God and of Muhammad the prophet” (Guillaume 1955, 607).

15 Khadduri 1966, 154– 155. 16 Badr 1982, 57. During these times, a shift occurred in the rationale for jihad, which was now interpreted as a defensive war waged only against unbelievers who threatened the land of peace. For an excellent discussion of jihad, see Afsaruddin 2013a.

17 Badr 1982, 57– 58. During the eighteenth and nineteenth centuries, the Ottoman Empire entered into many peace agreements with the West, including the 1724 Russian- Ottoman Treaty of Constantinople for the Partition of Persia and the 1739 Peace Treaty of Belgrade signed between the Ottoman Empire and the Habsburg Monarchy, to mention two.



international law, namely that war splits the international community into two parties: belligerents, in particular the States involved in war; and nonbelligerents and neutrals, which comprise the remaining members of the international community.”18

Nowadays, Islamic law and classical international law coexist. ILS are part of the international community and have learned to operate within the existing system of global justice. International law constitutes the official legal frame for interstate dealings. It is highly developed and institutionalized. However, it functions according to principles embedded into it by the Western legal traditions. Thus, while international law may be viewed by the West as providing a legitimate, value- neutral and benevolent framework, some ILS see it as a tool rigged in favor of the West.19 Nevertheless, many contemporary ILS undoubt-edly embrace principles of the modern law of nations, are part of international organizations, and make use of international conflict management venues. In a way, ILS have been subject to the process of social influence. Sincere or not, ILS to a degree have adapted to norms and standards of behavior that prevail in the modern global system. Social pressure exerted by non- ILS and international institutions has the power to alter the preferences and, consequently, the beha-vior of ILS on the international level. Yet, this “acculturation” is partially halted by the norms of Islamic law.20 It is Islamic law that provides a backdrop for ILS’ interstate dealings.21 As this chapter demonstrates, it is certainly the case that international law and Islamic law converge on many issues. But this fact does not automatically imply that classical international law invariably constitutes the sole basis for ILS’ interstate dealings. In other words, partial consonance be-tween sharia and international law does not necessarily mean that all ILS ac-cept international law’s authority across the board. The Islamic milieu continues to push back against the Western law of nations and challenge the decisions of international courts. But modern international law is able to garner some au-thority in the Islamic milieu, even when there are strong Islamic counter norms

18 Al- Zuhili 2005, 278. See also Al Ghunaimi 1968; Bassiouni 2014; and Fadel 2010.19 For an in- depth discussion of the “international” nature of international law, see Roberts 2017.20 For an excellent analysis of how social mechanisms can shape states’ behavior, see Goodman

and Jinks 2013. According to these authors, acculturation “is the process by which actors adopt the beliefs and behavioral patterns of the surrounding culture, without actively assessing either the merits of those beliefs and behaviors or the material costs and benefits of conforming to them” (p. 22). 21 Many treaties, especially those concluded between ILS, mention the concept of Islamic umma and refer to the Muslim faith. For example, the 1936 treaty of alliance between Iraq and Saudi Arabia states, “In the name of Allah, the Compassionate, the Merciful! His Majesty the King of Iraq, His Majesty the King of the Kingdom of Saudi Arabia, In virtue of the Islamic bond and ethnic unity which bind them . . .” British and Foreign State Papers, 140: 620, London: Her Majesty’s Stationary Office H.M.S.O.



that leave little space and role for any secular legal system. I return to this point in much greater detail in chapter 4. I end this section with Badr’s sanguine thought: “Islam can make valuable contributions to the progressive develop-ment of the law in this universal international order. Certain basic principles of Islamic international law lend themselves to consolidating and expanding the scope of international law.”22

The Literature

Far too frequently, points of contention between Islamic law and international law have been either overemphasized or simply dismissed, leading to a dichot-omous division of the scholarship. In a way, each of these bodies of literature has continued to advance in an effort to counteract the arguments of the other side. Some academics, both political scientists and legal scholars, underline commonalities between international and Islamic law, centering on analogous development and legal cross- fertilization in areas such as protection of ci-vilian population, diplomatic immunity, maritime law, and asylum.23 This view emphasizes the consensual nature of international law, as well as its ability to rise above the particularities of different societies, countries, ideologies, and religions.24 At times, however, de- emphasizing distinctions between Islam and international law has led to unintended misunderstanding of what Islamic inter-national justice entails. Underscoring similarities— although potentially leading to mutual edification— must not entail fitting legal notions unique to Islamic law into the Western understanding of what law is and how it should operate. Framing Islamic law via the modalities of Western law can paint a distorted pic-ture. Islamic law operates on the basis of a unique logic that cannot always be charted out via universal categories offered by classical international law.

There is hard evidence that certain tenets of Islamic law diverge from in-ternational law. But some have advanced the argument that Islam is simply incompatible with the law of nations, projecting a continuing divergence be-tween the two systems.25 Additionally, it is not an overstatement that schol-arship originating both in the West and in the Islamic milieu has produced a fair amount of prejudiced writing. Sharia is criticized as being outdated,

22 Badr 1982, 58. See also Fadel 2010.23 Al- Khasawneh 2013; Powell 2015.24 Frick and Müller 2013. For an excellent overview of the scholarship on comparative interna-

tional law, see Roberts et al. 2015. 25 Westbrook 1992– 1993.



cryptic, and out of touch with modern global politics.26 Some criticize in-ternational law as being a Western construct that institutionalizes Western dominance at the expense of global justice and that, rather than being truly universal, articulates and promotes values of colonialism. This narrative tells a traditional irreconcilability story and proposes that effective dialogue be-tween international and Islamic law constitutes, for the most part, a futile endeavor. Either Islamic law should be domesticated to international law, or vice versa. As Frick and Müller critically observe, thinkers associating them-selves with these views believe that “international law is not much more than a device consolidating and stabilizing, and perhaps at times timidly taming, existing power structures and inequalities.”27 Such a stance is harmful to the international community’s efforts at settling interstate disputes in a nonbelligerent manner. Granted, there are important points of conten-tion between Islamic and international law. At the same time, however, the “unrepairable incompatibility” narrative can have a powerful negative grip on modern international relations by simply failing to recognize deeply en-grained commonalities between these legal traditions.28 It is troublesome that some scholars claim that sharia- based law and international law con-stitute two separate legal domains, without much in common. For example, Harris argues that “a future in which Islam and the West do not stand on the brink of mutual annihilation is a future in which most Muslims have learned to ignore most of their canon, just as most Christians have learned to do. Such a transformation is by no means guaranteed to occur, however, given the tenets of Islam.”29

This chapter shows that Islamic law and international law are not funda-mentally incompatible. To the contrary: there are many dimensions of com-mensurability between them— some of which reach deep into the heart of peaceful conflict management. How, or via what mechanisms, do the points of convergence and departure affect the way that ILS approach international peaceful settlement? The next chapter is dedicated to this question. Here, my goal is to describe differences and similarities between Islamic law and international law.

26 Since the relationship between Islam and the West became a subject of scientific inquiry, sev-eral scholars have portrayed Islamic law as being diametrically different from Western law. One can come across more than a few variants of this view, starting with the troublesome wording of Max Weber, who referred to the qadi justice as being arbitrary, ad hoc, based on inordinate discretion, and administered without any reference to norms or rules (Weber 1968). See also Schacht 1964.

27 Frick and Müller 2013, 11.28 See Al Ghunaimi 1968 for an interesting discussion of this topic.29 Harris 2004, 110.



DifferencesRelation between Law and

Religion— General Observations

The nature of international law is perhaps best captured by Brierly’s defini-tion: “The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another.”30 If there is a common theme running through this chapter, it is the predominantly secular character of classical international law and the predominantly religious nature of Islamic law. The former— especially in its contemporary form— rests on the Euro- American conceptions of law found in civil and common legal systems.31 From a historical perspective, the contexts in which Christianity and Islam materialized were fundamentally dif-ferent. Christianity was birthed in a world where a strong system of rules, the Roman law, already existed. As the Christian church grew, the canon lawyers drew largely from Roman law— at this point a comprehensive and mature legal system— overlaying upon it the fundamentals of the Christian faith. Islam, on the other hand, had no a priori legal system to work with other than unwritten tribal customs. Thus, legal and religious precepts developed simultaneously.32

Numerous principles of international law have roots in ancient Rome, Greece, and medieval Europe, including laws regulating the acquisition of ter-ritory and delimitation of boundaries.33 Although modern international law is a secular legal system, the Catholic Church, the Catholic doctrine, canon law, and ecclesiastical law had a significant impact on its rules. As Diehl and Ku note, “To the extent that international law was part of canon law, it had little need for any separate intellectual basis or tenets.”34 Some of the main contributions of canon law deal with conclusion and observance of treaties, the just war theory, inclusion of non- state actors in questions of international law, authority over ter-ritory, and human rights. Several key figures of the Catholic Church contributed immensely to the theory of the law of nations.35 For instance, while developing

30 Brierly 1963, 1. 31 See Mitchell and Powell 2011; Zartner 2014. For a broader discussion of the Eurocentrism of international law, see Anghie 2005; Hanqin 2012; Roberts 2017.

32 Weeramantry 1988, 30.33 Lesaffer 2005, 26. As Roman law was codified in the famous Justinian’s Corpus Juris Civilis, it

was never seen nor interpreted as Christian law.34 Diehl and Ku 2010, 8.

35 In this context it is interesting to note that Saint Augustine drew a distinction between the City of God and the City of Man. These cities, according to Saint Augustine, had distinct jurisdictions: the first one was ruled by God and his everlasting laws, and the second one was ruled by secular authorities and secular laws. All citizens were subjects of both cities (Augustine 1998).



his thoughts on the causes and conduct of war, Augustine drew largely from the Roman legal tradition while imbuing it with Christian teachings.36 Francisco de Vitoria, a sixteenth- century canon lawyer, Dominican priest, and theologian, was another key scholar of international law. His writings, especially De Indis, included philosophical and moral arguments concerning the legality of Spain’s invasion and occupation of the New World territories, and in particular the treat-ment of the Amerindians.37 Vitoria relied on his legal as well as his theological background to argue for the Amerindians’ rightful sovereignty over the terri-tory Spain had acquired. In his view, the just war doctrine should be extended beyond the Christian world. In particular, as Bain explains, Vitoria’s arguments were grounded in “the Biblical truth that all men are created in the image of God.”38

It cannot be denied, then, that international law, as it emerged and developed in the West, had deep roots in the Christian faith. According to Rosenne, “In the medieval period proper, largely under the influence of Saint Augustine and others of the Church Fathers, the undifferentiated concepts of international law and international morality were conceived as part of the discipline of theology, and in that form international law germinated within the framework of the feudal system.”39 Overall, however, the influence of religion on international law has been less direct in the Western than in the Islamic milieu: in the former, reli-giously rooted notions of morality have served merely as a foundation or an in-spiration for specific rules. It is true that during the medieval period, the process of international lawmaking, being deeply influenced by canon law, was believed to be inspired by God and thus there was limited, if any, need to search for ra-tional justification for norms and rules. Thus, many state practices during that period were “carried out as part of the Church’s ecclesiastical authority with little further theoretical or doctrinal justification regarded as necessary.”40 However, even in some Catholic theological writings of the period, there was an emphasis on reason and logic, on intellectual doctrine as the basis of international law. This is particularly the case in the writings of Augustine devoted to just war. For

36 But as Diehl and Ku (2010, 8) note, Augustine’s work on just war was in a sense “a turning point in moving international law from traditional religious dogma to something with a more reasoned basis.” Furthering the spirit of ecclesiastical inquiry, Augustine surmised that using force in order to preserve and support the church was honorable and righteous (O’Connell 2008, 22). 37 De Indis was written in 1537– 38 and delivered in 1539. The main form in which Vitoria’s ideas have been preserved is via students’ copies of his “relections,” or lectures given at the end of an aca-demic year that summarized material covered so far and focused on most crucial issues. 38 Bain 2013, 592. At the same time, however, Vitoria “recognised the power to wage war as a sov-ereign (non- Papal) prerogative” (Chinkin and Kaldor 2017, 67).

39 Rosenne 1999, 65.40 Diehl and Ku 2010, 8.



Augustine, there exist clear, rational standards according to which one can judge the legality of states’ behavior. These standards— though deeply informed by the Christian understanding of justice and morality— were external to strictly re-ligious Church doctrine. Importantly, though Augustine deeply acknowledged and accepted the Biblical teachings on the importance of interstate peace, he also drew on the writings of Cicero, Aristotle, and other philosophers.

An important shift in the approach to international law occurred with the writings of Vitoria and Suárez, the two great Spanish scholastics, who argued that the practice or behavior of states was an important consideration in the process of identifying rules of international law.41 Consequently, “the analytical framework for international law was shifting away from religious and philosoph-ical texts to patterns in real world events. This also opened up the possibility for changes in the law over time (from practice) as opposed to immutable and divine truths as the basis for law.”42 Grotius, whose comprehensive work On the Law of War and Peace (1625) encouraged the establishment of the inter-state legal order, promoted fundamental principles of the Christian teaching. Although his work contains references to diverse cultures and philosophies, Grotius’s optimistic view of people’s ability to do good was grounded in the spirit of Christianity.43 He also spoke in favor of the use of arbitration in inter-state disputes by gatherings of Christian powers.44 Nonetheless, On the Law of War and Peace embraces a much more secular interpretation of natural law. As O’Connell explains, Grotius “continued the work of the Scholastics but moved farther toward a secular understanding of natural law than they had in order to avoid the swirling religious controversies of his time.”45 Grotius stressed the im-portance of human reason in the process of deciphering the law of nature, as well as universally binding principles of justice and morality. It is also important to add that Grotius’s presentation of international law was that of a unified, even if not fully comprehensive, system of law that is to govern all interstate relations.46 The character of Grotius’s teaching was largely shaped by his historical context, the Thirty Years’ War and the Peace of Westphalia (1648). On the Law of War and Peace was written with hopes of forming a legal system that would govern the conduct of all warring sides. In Grotius’s view, no human community can be

41 It is, however, important to note that Suárez believed that the pope held the final authority “to decide between competing claims of justice” (O’Connell 2008, 25).

42 Diehl and Ku 2010, 9. 43 O’Connell 2008, 27. Importantly, however, Grotius emphasized states’ continued practice for the affirmation of interstate law, grounding international law’s authority in consent, and fundamen-tally in the moral sense of rational humanity (Nussbaum 1954, 107).

44 Von Glahn and Taulbee 2013, 483. See also Chinkin and Kaldor (2017).45 O’Connell 2008, 27.46 See O’Connell 2008, 28.



sustained without law and rules. To him, people have an inherent longing for so-cial life, “endowed with an ample measure of goodness, altruism, and morality, and capable of acting on general principles and of learning from experience.”47

After Grotius, international law continued to evolve in a dynamic way, moving steadily away from religious texts and doctrines. In their place, reason, logic, and secular rational calculations and philosophies became the benchmark for the establishment and interpretation of international law. Scholarly writers such as Christian Wolff (1679– 1754) and Emmerich de Vattel (1714– 1767) elaborated on numerous aspects of international law. The hope of preventing future wars fought on religious grounds was a major motivation for Vattel. Interestingly, he accepted that international treaties can be concluded between peoples of dif-ferent faiths: “Different people treat with each other in the quality of men, and not under the character of Christians and Mahommedans. Their common safety requires that they should be capable of treating with each other and treating with security.”48 Vattel believed that the universal community or society envisaged by theorists would not effectively constrain the freedom and sovereignty of states; diplomacy and the balance of power constitute the sole guarantors of interstate order. Vattel’s writings clearly express his belief in state sovereignty. For instance, he held that “normative decisions such as the just causes of war must be left to the private conscience of sovereigns.”49 Vattel’s writings propelled the growth of positivism. Under his influence, many scholars saw international law as an em-bodiment of the will of sovereigns and not what God or nature preordained.

To a great extent, these intellectual developments can be clearly traced back to the Peace of Westphalia. The rise of the principle of state sovereignty meant that states wanted to stipulate their legal obligations in a more clear and precise way via written agreements.50 To a large degree, as Armstrong and colleagues argue, “the reality of Westphalia was that a decisive shift had been made toward the positivist principle that international law was what a society of sovereign states consented to.”51 Simply put, Westphalia was significant for its “secularisation of legitimacy.”52 Moral and religiously based arguments formerly used to justify state actions began to shift toward the consideration of legality. Moreover, states sought increasingly to institutionalize their cooperation across numerous issue areas, including movement on rivers, shared borders, railway and sea travel, and public health. In this period, arbitration became a relatively popular method

47 Lauterpacht 1946, 24.48 Vattel 1834, 195– 196.49 O’Connell 2008, 37.50 See Armstrong, Farrell, and Lambert. 2012, 61.51 Armstrong et al. 2012, 61.52 Chinkin and Kaldor 2017, 67.



for resolving interstate conflicts. This development took place especially in the period following the Jay Treaty of 1794 between Great Britain and the United States to settle post- war disputes. Arbitration was used after the American Civil War to resolve the Alabama claims, which dealt with the United Kingdom’s obligations arising out of its neutral state status during the war.53 The Hague Conferences of 1899 and 1907 further articulated legalized dispute settlement in the international arena, developing an elaborate code of procedures should bilateral negotiations fail. The growth of international commerce, the propen-sity to rely on scientific evidence across a range of human activities, the solid-ification of the doctrine of sovereignty, and the ever- increasing complexity of international relations were important factors in the waning of the influence of the Catholic Church in matters of international law. Though some legal writers continued to espouse natural law theories, by the dawn of the nineteenth cen-tury, positivism had become, for the most part, the prevailing approach to inter-national law. Even so, as O’Connell writes, “Positive sources of law in the form of treaties and customary international law existed, but general principles of inter-national law and the foundation of international law continued to be described as based in natural law, much as Grotius had taught. Positivism alone could not supply solutions to questions once answered in natural law, including how law can bind the sovereign state.”54

As a continually evolving legal tradition, international law has always responded to major international events. The First and Second World Wars prompted the scholarship to continue to better conceptualize the workings of in-ternational law in the hope of improving its effectiveness. Hans Kelsen, a propo-nent of the Just War doctrine, revived many ideas earlier expressed by Augustine, Thomas Aquinas, and Grotius.55 He developed the concept of the Grundnorm, or ultimate norm that provides an underlying basis for a legal system. Hersch Lauterpacht’s writings draw deeply on Grotius’s works, arguing for a funda-mental need for a moral interpretation and justification of international law.56 He wrote, “In the absence of the overriding authority of the judicial and legisla-tive organs of the state there must assert itself— unless anarchy or stagnation are to ensue— the persuasive but potent authority of reason and principle derived from the fact of the necessary coexistence of a plurality of states. This explains the pertinacity, in the international sphere, of the idea of natural law as a legal source.”57 To Lauterpacht, international law binds sovereign states.

53 Merrills 2017.54 O’Connell 2008, 39– 40.55 Kelsen (1881– 1973) was an Austrian legal scholar.56 Born in Austria- Hungary in 1897, Hersch Lauterpacht served on the United Nations

International Law Commission, and as judge of the International Court of Justice. He died in 1960.57 Lauterpacht 1946, 22– 23.



Modern international law continues to develop, broadening its scope and deepening its connection to domestic legal systems. International law scholar-ship has been evolving in tandem with the goal of discovering the nature and role of international law. Contemporary writers push the development of interna-tional law further, providing a wealth of novel theoretical lenses and approaches to examine the functioning and effectiveness of international law. Some of these approaches are more dynamic than others; some focus on describing existing rules, others home in on the interaction of domestic laws with international laws. Some firmly hold to the positivist view, others draw on the naturalist theories of international law, still others look at international law through a policymaking lens.58 And some see international law as a comprehensive process of decision- making— a view that goes beyond interpreting international law as a set of norms, laws, and rules.59

Even with these developments, it is difficult for all the cultures of the world to reach consensus on the meaning of justice, law, or morality. But the general question of the relation between religion and law in the context of international law can be considered settled. As should be clear from the preceding historical discussion, the Bible was not considered a direct and exclusive source of inter-national law, and thus it was referred to alongside secular laws, or used as a nor-mative support for positive rules.60 That said, Onuma makes an interesting point in arguing that “West Europeans think, see, feel and act according to modern European civilization, which is basically secular. However, albeit unconsciously, most of them also think, see, feel, and act according to Christian civilization of culture, which originates in the premodern period.”61 With the pope’s authority confronted by the Protestant Reformation splintering the Catholic world, reli-gious normative considerations were supplanted by reason, consent, practice, and written letter of the law, treaties. There is a strong connection between in-ternational law and values that underpin the very concept of international law.

58 For a review of contemporary approaches to international law, see Diehl and Ku 2010; and Koskenniemi 2001. 59 For instance, the New Haven school is a policy- oriented view of international law that emphasizes social choices in the process of legal evolution. This theory’s main focus is on multiple processes of authoritative decisions. See Lasswell and McDougal 1992. 60 In general, law and religion are connected in some way in almost all legal systems simply because values rooted in religion find their way into law. Notwithstanding this subtle connection, there is a fundamental difference between applying secular rules— albeit grounded in morality or faith— and directly applying religious norms to solve a legal question. The latter process entails explicit use of re-ligious sources in the various processes of law, such as adjudication. The two contrasting approaches to law embrace different forms of legal reasoning, with appeals to different sorts of authorities. More generally, see Bornstein and Miller 2009.

61 Onuma 2010, 101. See also Roberts 2017, for an excellent analysis of this issue.



As Shaw writes, “Just as any domestic community must have a background of ideas and hopes to aim at, even if few can be or are ever attained, so the inter-national community, too, must bear in mind its ultimate values.”62 Yet, as the International Court of Justice explains in one of its rulings, these background values are de jure separated from the law itself:

It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered. Humanitarian considerations may constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations Charter constitute the moral and political basis for the specific legal provisions thereafter set out. Such considerations do not, however, in themselves amount to rules of law. All States are interested— have an interest— in such matters. But the existence of an “interest” does not of itself entail that this interest is specifically juridical in character.63

All else equal, the Islamic legal tradition rests on reasoning that is somewhat distinct from that of the Western legal systems: civil law and common law.64 In contrast to Christianity— which as I mentioned earlier developed with a secular legal system already in place— the creation of legal provisions and that of religious ones were often conjoined in Islam, especially at the very beginnings of Islamic polities. Hallaq describes this reality in the following way: “the Community, the common social world, organically produced its own legal experts, persons who were qualified to fulfill a variety of legal functions that, in totality, made up the Islamic legal system.”65 It is important to add, however, that though mo-rality and religion constituted an important basis for the building of the law’s and the state’s authority, the Muslim world has quickly introduced “the institu-tional differentiation of state and religion. Royal households or courts, political élites and the language and cultural style of the ruling classes were different from those of religious élites.”66 Yet, there are important religious bases to the Islamic legal tradition. This necessarily means that according to Islamic jurisprudence,

62 Shaw 2003, 12. 63 ICJ Judgment of July 18, 1966, second phase, South West Africa (Liberia v. South Africa) case, 32.

64 Mallat 2007, xii.65 Hallaq 2013, 52.66 Lapidus 1996, 24.



non- Islamic legal systems hold an inferior place to sharia. Nonetheless, human reason plays a decisive role in the process of legal reasoning and elaboration.67 As Weiss explains, “Although the law is of divine provenance, the actual con-struction of the law is a human activity, and its results represent the law of God as humanly understood. Since the law does not descend from heaven ready- made, it is the human understanding of the law— the human fiqh— that must be nor-mative for society.”68 It is this human agency that according to An- Na’im enables the Islamic law to “engage international law as an integral aspect of the context and experience of those societies.”69

Sources of Law

The sources of international law are exhaustively enumerated in Article 38(1) of the Statute of the International Court of Justice.70 They include international conventions, treaties, international custom, general principles of law recognized by civilized nations, judicial decisions, and the teachings of the most highly qual-ified publicists. The first three constitute primary sources; judicial decisions and scholarly writings are subsidiary sources of international law. Whereas at first, customary norms were the usual form of expression for international law, in the modern era treaties are the canon. However, rules governing interstate re-lations are far from being completely written down. Granted, the international community has succeeded in generating a string of comprehensive interna-tional agreements that one may call “codification treaties,” following Cassese’s terminology.71 These treaties systematize large bodies of laws. Examples in-clude the 1982 UN Convention on the Law of the Sea (UNCLOS), the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, and the Vienna Convention on the Law of Treaties.72 Treaties regulate not only issue areas that used to be covered by custom, but also new areas, such as environmental protection or cyberspace law, uncharted by other forms of lawmaking. In a way, because treaties have in essence become the main vehicle for international law, some scholars question the legitimacy and usefulness of custom.73 Interestingly, to this day there is no rule that would

67 See Fadel 2016 for an excellent discussion of law, nature, and the state.68 Weiss 2006, 116.69 An- Na’im 2004, 164. In an important way, the human element intrinsic to legal exposition and

belief in higher values is apparent in both legal systems.70 Statute of the ICJ is available at http:// legal.un.org/ avl/ pdf/ ha/ sicj/ icj_ statute_ e.pdf.71 Cassese 2005, 167.72 1833 UNTS 3, 500 UNTS 95, 596 UNTS 261, 1155 UNTS 331 respectively.73 Kelly 2000.



irrefutably establish an exact point in time when an observed repeated practice becomes an international custom.74 Practically speaking, the process of isolating state practice is a daunting task, as it entails combing through a wide range of states’ actions in search of a strong enough pattern. Two major opinions exist re-garding the meaning and scope of the general principles of law. According to the first, preponderant view, general principles of law refer to general principles pre-sent in domestic legal systems such as fair hearing or bona fides. The second view holds that general principles of law pertain to the principles of natural law.75 The drafters of the Statute of the Permanent Court of International Justice (PCIJ), the predecessor to the International Court of Justice, included a reference to “the general principles of law recognised by civilized nations” to circumvent the possibility that the Court might be unable to adjudicate because of a lack of ap-plicable law.76 By including general principles as an acceptable source of inter-national law, the PCIJ and then the ICJ could adjudicate in cases where an issue under consideration was not specifically governed by either a customary norm or a treaty. Yet, even a cursory look at the jurisprudence of both courts reveals that general principles have rarely been used as a basis for decisions. According to Cassese, the main reason for the underuse of these principles is that “in the international community a whole network of treaty rules had been established and in addition numerous customary rules had emerged, translating general principles of international law into treaty or customary rules.”77 In recent times, however, the notion of general principles of law has appeared in either statutes or practice of several international courts, including the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia. This practice of gap- filling via resorting to general principles has been criticized by some scholars as leading to “profound confusion in the jurisprudence, with dif-ferent judges and courts slipping and sliding between different notions of ge-neral principles with little clarity on the hierarchy of their application.”78 To some extent, the nature of international law inhibits exhaustive written regula-tion. There exists no single international body endowed with the power to create international rules, nor a unified, hierarchical system of courts with the power to interpret existing laws.

All these sources of international law are per se inherently secular in na-ture, even if indirectly or historically informed by Christian principles. General

74 I address custom as a source of international law in much greater detail in the “Custom” section that follows.

75 Shaw 2003, 93– 94.76 See Article 38(1) of the ICJ Statute (n70).77 Cassese 2005, 193.78 Jain 2016, 113.



principles of law can potentially provide the only space— and a limited one at that— for any sort of religious argument. As Khaliq explains, “By referring to ‘ge-neral principles of law recognised by civilized nations,’ the other primary source of international law, the Court can draw upon something other than interstate practice and in doing so it can refer to religious and other values which then feed into the Court’s development of international law.”79 In reality, however, the ICJ sparingly makes reference to any religion while exercising its adjudicative powers. Reliance on secular, religion- neutral arguments is an organizing prin-ciple for all international decision- makers. Thus, in all international adjudicative bodies, such as the ICJ, the ICC, and the WTO Dispute Settlement Body, “poli-tics and morals are not, as a theoretical matter, acceptable bases for a judgment; decisions involving politics and morals are criticized.”80

Whereas a significant portion of international law emerged as a product of preexisting state practice, sharia imposes a different set of standards: standards rooted in God’s will.81 Thus, prior state practice, however well- established, must not contradict the spirit of those perfect laws.82 Islamic law has two pri-mary written sources, the Quran and the sunna, and two non- textual sources, ijma, or consensus, and qiyas, or analogical reasoning.83 The last two constitute analytical, methodological tools for determining the law and can be used as a supplement in cases where the primary sources are silent.84 The Quran is, ac-cording to the Muslim faith, the book of divine revelation of God’s will, and as such is believed to be perfect in both composition and content. It is the foun-dation of sharia. Notwithstanding its prominence as a legal source, the Quran does not contain many legal verses. Depending on how one defines a legal maxim, or a legal topic, the Quran encompasses anywhere from eighty to five hundred legal verses.85 However one counts, it is important to keep in mind that the Quran’s primary role was not as a legal code of conduct.86 In this context,

79 Khaliq 2013, 110.80 Picker 2008, 1097.81 For an excellent presentation of the sources of Islamic law, see Bassiouni 2014.82 Bsoul 2008, 25.83 According to Weiss (2006, 122), ijma “for all practical purposes amounted to a textual source,

since it had to find expression in quotable words in order to be effective, and these words had to be transmitted from generation to generation in the same manner as the words of the Qur’an and the Sunna.” However, he goes on to say that instances of ijma, or more accurately the laws on which the scholars agree, have not been compiled in a systematic, unified way (pp. 122– 123).

84 See Mallat 2007, 109; and Weeramantry 1988, 31.85 See Bassiouni 2014; Glenn 2014; Mallat 2007, 33; Weeramantry 1988, 32– 33; Weiss 2006.86 Similarly, introduction of a new legal system was not Muhammad’s main objective. Historically,

the presence of legal injunctions increased in the latter revelations, after Muhammad’s voyage to Medina. It was in Medina that Muslim believers organized themselves in a society and the need for legal regulations increased.



Bassiouni writes, “The Qur’ān contains the expressions of values, principles, and guidelines for conduct, admonitions against prohibited and wrongful conduct, and exhortations to do good and abjure evil. In that sense, it is all- inclusive, but not as legal prescriptions and proscriptions.”87

Sunna, the second main source of law, comprises traditions, acts, and words of Muhammad.88 The word “sunna” literally means a pattern of behavior, a manner of acting, a rule of conduct. If the Quran does not speak on a given issue, sunna is to provide guidance.89 To Muslims, the life of Muhammad is a living translation of legal precepts of the Quran.90 Scholars have parsed sunna into Muhammad’s sayings, also known as hadith; his actions; and his silence. The hadith is the most important constitutive part of the sunna.91 Many of the rules regulating peaceful resolution of disputes come from hadiths, as the Prophet was not only the spiritual leader for the Muslims, but also the supreme arbitrator and judge. In fact, Muhammad presided over a multitude of contentious cases, and if a solution could not be found in the Quran itself, Muhammad, inspired by God, was the source of resolution.92 In contrast to the Quran— whose divine nature and contents are not contested— the main Islamic schools of jurispru-dence disagree with regard to the contents and authenticity of the traditions of the Prophet and have their own compilations and books of reference.93 These

87 Bassiouni 2014, 23. 88 Modern ILS’ constitutions hardly ever refer to specific sources of Islamic law. If they do, these references are usually to the Quran. For instance, Saudi Arabia’s 1992 Basic Law of Governance in Article 1 declares that the country’s constitution is “the Holy Qur’an and the Prophet’s Sunnah (traditions).” Pakistan’s 1973 constitution mentions sunna in the preamble as well as in Article 31, which talks about the state’s responsibility to enable the Muslims of Pakistan “to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.” 89 Quran (Sura 59, verse 7) declares, “Whatsoever the Messenger give you, take it and whatsoever he forbids, abstain from it.” Sunna also provides legal guidance as a form of a commentary on more general Quranic passages. 90 Sunna “is an ancient Arab concept, meaning an exemplary mode of conduct, and the verb sanna has the connotation of ‘setting or fashioning a mode of conduct as an example that others would follow’ ” (Hallaq 2005, 46). 91 Mallat 2007, 35. A hadith consists of two parts: the actual statement or a norm, and then a proof of the statement’s legitimacy, isnad (Glenn 2014, 184). 92 Weeramantry 1988, 35. 93 For a comprehensive list of the main Shi’a and Sunni hadith compilations, see Juynboll 2007; Mallat 2007. Muhammad’s companions and followers and their successors collected discrete traditions, recorded them, and transmitted them from generation to generation. To prove their au-thenticity, each record was accompanied by a chain of transmitters linking the original tradition and the chronicler. Thus, hadiths are often evaluated not according to the insight they offer, but according to their reliability (Glenn 2014, 184)


S imi lar i t i e s and D i f f e re n c e s 105

disagreements demonstrate the unprecedented importance of interpretation in Islamic law. It is the divergence of views between the schools of jurisprudence that resides at the heart of sharia.94

Judicial consensus, ijma, denotes a common religious conviction among legal scholars. Mallat refers to ijma as “the decisive instance,” because it warrants the au-thenticity of the textual sources and ensures their accurate interpretation.95 The au-thority of ijma is based on the belief that a collectively reached decision is superior to that of an individual— a view that can be traced to Muhammad, who is recorded as saying that his nation will not agree unanimously on an error. In general, the like-lihood of such an error, a misinterpretation of God’s will, is much greater when an individual scholar makes a pronouncement of a legal nature than it is in the case of collective decision- making. In instances where no agreement exists, the jurists may continue to engage in interpretation of the divine law. Consequently, the entirety of law can be divided into two separate domains: one where there is a consensus about a particular exposition of law, and one where there is disagreement. Islamic schools of jurisprudence reside in the second area.96 Islamic scholarship diverges on whether the consensus must be shared by the entire community of Muslims or by the community of scholars, in part or in whole. But the most widely accepted view is that the presence of consensus is ascertained by “an absence of known ob-jection to the expressed opinion of a single mujtahid.”97 Despite the many obstacles in determining the actual presence of ijma, in many Islamic law textbooks judicial consensus is mentioned prior to analogical reasoning because only ijma can be “a source for irrefutably divine revelation.”98

In the event that a solution cannot be found in the three aforementioned sources, jurists are to develop a fitting legal prescription using analogical rea-soning, qiyas.99 Via this juristic technique, a specific rule found in the founda-tional texts may be applied to another legal question or a new problem.100 The

94 See Bassiouni 2014; Fadel 2016; and Abou El Fadl 2001. 95 Mallat 2007, 109. The collective judgment can be of either a confirming or a creative nature (see Vikør 2005, 75– 88; and Zweigert and Kötz 1998). Ijma of a confirming nature is established when jurists conclude that a specific variation/ exposition of a rule is best. The creative ijma is more inventive. It rests on the notion that a consensus is by itself an indication that a rule truthfully and ac-curately captures God’s will. This type of consensus is a source of Islamic law, because it can generate a rule that Muslims must subsequently follow. 96 Weiss 2006, 122. 97 Weiss 2006, 122. 98 Vikør 2005, 74. 99 Approach to qiyas varies across Islamic schools of jurisprudence. For the use of aql, reason or intelligence, in place of qiyas in the Usuli Jafari madhhab, see Al- Ṣadr 2003 (Mottahedeh translation). 100 Some scholars liken analogical reasoning to stare decisis in common law, whereby a judge is obliged to examine how previous judgments dealt with similar cases. The main difference is, however, that qiyas relies on repercussions and ramifications rather than a priori legal prescriptions. Whereas a



requirement is that the set precedent and the new problem have a common op-erative or effective cause. For example, qiyas is applied to the injunction against drinking grape wine to create an injunction against the use of modern drugs such as cocaine.101 Scholarly engagement in qiyas entails an arduous task of separating the causal mechanism, the rationale, from the factual circumstances of a case in the Quran or Prophetic traditions. Thus, analogical reasoning relies on identifying general concepts and principles submerged in specific situational circumstances. The fundamental role of qiyas cannot be underestimated: it provides a relatively flexible legal tool via which rules of the Quran and sunna can be extended to changing circumstances. In an essential way, qiyas has his-torically supplied a vehicle to bring local practices into a broadly understood structure of the law. As long as a desired outcome is achieved, local ways and local practices can fill in the missing legal spaces.102

Religious Features in the Courtroom: Religious Affiliation and Gender of Judges, Holy Oaths

The theory of law may be different from the practice of law. Do tenets of sharia trickle down to the courtroom? While chapter 4 addresses broader, more sys-temic differences in peaceful settlement as it occurs under Islamic law and in-ternational law, here I focus on three specific issues: religious affiliation and gender requirements of the judges, as well as holy oaths. Why would any legal

common law judge extracts detailed rules from specific cases and then applies these rules to a subse-quent case, an Islamic law judge focuses on consequences of a case in a specific context.

101 Similarly, although prohibition of pornography is not explicitly mentioned in the material sources, the Quran does call on believers to embrace modesty in clothing and to resist bodily temp-tation and lust. Via analogical reasoning it is logically deduced that pornography is forbidden. 102 Despite the inherently religious nature of Islamic law sources, some scholars portray them as similar to sources of international law. In fact, Khadduri (1956, 359) draws a direct analogy between them when he says, “These sources are not unlike the sources of the modern law of nations. The Qur’an represents the authoritative source of law; traditions are equivalent to custom; rules and prin-ciples expressed in treaties with non- Muslims fall in the category of agreement; and the opinions of the caliphs and jurists, based on legal deduction and analogy, may be regarded as reason.” Indeed, the human capacity to reason plays a significant role in the Islamic legal tradition, since it is thought that human reason connects humanity to God. Similarly, van Hoecke (2010, 48– 49) draws comparisons between the sunna and the codes of law found in Western Europe, arguing that just as “nineteenth- century civil codes were a synthesis of customary law, a long- lasting legal scholarship and newly introduced principles,” the sunna as well may be “compared to customary law, as it is based on the customs and life of Muhammad, later on written down in authoritative texts and rearranged by legal scholarship.” Van Hoecke goes on to suggest that judicial consensus in Islamic law is similar to the Western ‘‘legal dogmatics,” wherein a scholarly discussion may generate a consensus on how a legal text is to be understood (p. 49).



system— domestic or international— place an emphasis on the religious affili-ation of the judiciary? The main theme of Western legal thought and Western international law is that a judge, while exercising judicial duties, is to engage in unbiased application of law to specific cases. The principle of church- state sep-aration proscribes the explicit usage of religious sources or religious argumen-tation in the courtroom. In the same vein, there are no provisions pertaining to religious affiliation or gender of the judiciary. Instead, what is emphasized is the moral attributes and the competence of potential candidates for judicial seats.103 For instance, according to the ICJ Statute, the Court is to be composed of “in-dependent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.”104 The Statute further recommends that the Court’s body as a whole should represent the main forms of civilization and the main legal systems of the world.105 Similar qualifications are required from the members of the International Tribunal for the Law of the Sea (ITLOS), whose statute requires that its twenty- one independent members be “elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.” By the same token, the ITLOS talks about “the representation of the principal legal systems of the world and equitable geographical distribution.”106 Likewise, members of the Permanent Court of Arbitration (PCA) are to be persons of “known com-petency in questions of international law, of the highest moral reputation and disposed to accept the duties of arbitrators.”107 The World Trade Organization (WTO) clearly outlines qualification for the members of its Dispute Settlement Body as well as the Appellate Body, emphasizing independence in decision- making, diverse background, wide- reaching experiences, and expertise in law.108

103 However, international courts have historically been dominated not only by Europeans, but also more specifically by European males. Female judges until very recently have not only been ab-sent from these institutions, but have had limited influence on the development of international law and scholarship in general. More generally, see Charlesworth and Chinkin (2000). 104 Statute of the ICJ, Article 2. 105 Statute of the ICJ, Article 9. 106 Statute of ITLOS, Article 2, available at http:// www.itlos.org/ fileadmin/ itlos/ documents/ basic_ texts/ statute_ en.pdf. 107 Permanent Court of Arbitration, available at https:// pca- cpa.org/ en/ about/ structure/ members- of- the- court/ . 108 World Trade Organization’s Understanding on Rules and Procedures Governing the Settlement of Disputes, Articles 8(2) and 17(3). See also the World Trade Organization, available at https:// www.wto.org.



In contrast, in many ILS, religion finds expression in some courtrooms. A judge of a religious court, while making decisions, applies insights from God’s law to a particular case. Ibn Khaldun, one of the greatest Muslim historians, wrote, “The office of judge holds a place with God to which nothing else compares. It is God’s scales in which the conditions of men on earth are equalized.”109 Requirements associated with holding the office of an Islamic law judge, or qadi, have evolved over time. In the beginning, qadi performed mag-istrate functions, were an integral part of the state apparatus, and simply offered dispute resolution as representatives of the rulers. Judges were to be selected from free adult males, sane and sound, knowledgeable in jurisprudence, and of good moral character.110 With time, however, the office itself and qadi’s judicial tasks acquired an increasingly religious importance. At the end of the seventh century, qadis were expected to know the Quran. Judgments were directly based on the Quran, traditions of the Prophet, local custom, and, in the event of legal lacunae, judicial discretion. In the process of adjudicating difficult matters, qadis often referred to legal scholars, asking for legal opinions, thereby increasing the presence of religious argumentation in the courtroom.111

Modern- day qadi continue to administer justice according to the Islamic legal tradition, must be devout adherents to the Muslim faith, respect religious values, and provide a model for Muslims living in their local communities. Thus, re-ligious piety, devotion to sharia, and judicial duty must come together in the person of the qadi. By way of illustration, in Saudi Arabia, and Iran, judges must be graduates of sharia colleges or have other training in Islamic jurispru-dence.112 Saudi Arabia’s Law of the Judiciary requires that a candidate for a judge “shall be fully qualified to hold position of judge in accordance with the Shari’ah provisions. He shall hold the degree of one of the Shari’ah colleges in the Kingdom of Saudi Arabia or any equivalent certificate.”113 In some ILS, qadi positions are restricted to members of specific jurisprudential schools.

109 Ibn Khaldun 1958, 149. Khaldun’s Muqaddimah (Introduction or Prolegomenon) is considered the most important compilation of Islamic history of the premodern world, covering sociology, philos-ophy of history, economic thought, demography, and ethnography. Khaldun wrote the Muqaddimah in 1377, and it was first published as a complete translation in the English language in 1958. 110 Khadduri (1984, 146) writes that a qadi must be “in the possession of an adequate knowledge of the Law.” 111 This practice further solidified the position of scholars in the legal practice. At times, judges were selected from among the scholars. 112 In Afghanistan, judges must hold a degree from a sharia law college or alternatively have a di-ploma “on Religious Studies from an officially recognized centre or equivalent” (Sial/ Masoud 2018). 113 The Law of the Judiciary (Article 37) requires that a candidate for a judge “shall not have been sentenced to a had (Qur’anic prescribed punishment) or a ta’zir (discretionary punishment) or for a crime affecting honor, or punished by disciplinary action dismissing him from a public office, even though he may have been rehabilitated.”



The status of female judges remains a controversial issue in some ILS. Neither the Quran nor sunna contain specific provision that would explicitly prohibit women from serving as judges. But some of the founding jurists of the Shafii, Maliki, and Hanbali schools of jurisprudence viewed women as being disqualified from serving in a judicial capacity, on the basis of the Quranic prescription that men are protectors or maintainers of women.114 Thus, offices that require authority over men— whether of political or adjudicatory nature— could be, under a strict reading, restricted only to men.115 Other jurists place greater emphasis on the qualification of a judge and not the gender. Abu Hanifa, the founder of the Hanafi school, proposed that a woman can adjudicate over cases in which she fulfills requirements essential for a wit-ness. But sharia courts may at times value a man’s testimony more highly than that of a woman, drawing on the Quranic verse, “get two witnesses, out of your own men, and if there are not two men, then a man and two women.”116 This rule may be interpreted by some as undercutting a woman’s judicial authority in sharia courts. However, women can be appointed as secular court judges, since in secular courts male and female testimony has the same worth.117 And in any case, we must avoid the sweeping assertion that all sharia courts have considered female legal testimony to be worth half of that of a man, as in prac-tice this was not universally true.118 Perhaps the most egalitarian view is that of Jarir Al- Tabari, a prominent Persian jurist and scholar, according to whom a woman may serve as a judge since she can also be a legal expert, a position of a higher status.119

The status of women in the judiciary is a telling example of the jurists’ power to define law. Modern day ILS’ legal systems reflect these divergent views. For instance, women have been able to hold a judicial seat in Islamic courts in Indonesia since the 1960s, and have increasingly done so since the early 1990s.120 Women have been allowed to be appointed to Islamic courts in Malaysia since

114 Quran, Sura 4, verse 34. Different interpretations use different phrases, including “protectors,” “maintainers,” “men are in charge,” “men are the managers of the affairs of women.” 115 At times, factors such as emotional temperament, inability to be a witness in sharia courts, and periodical impurity while menstruating are brought up (see Cardinal 2010).

116 Quran, Sura 2, verse 282.117 See Cardinal 2010, 191– 192.118 As Fadel (1995) shows, in the premodern period, male jurists frequently considered a woman’s

legal testimony to be of equal value to a man’s testimony. It depended on the nature of the issue considered by the court as well as on which jurists and which madhhabs were involved. Interestingly, a more equalizing position was often taken by several conservative jurists, including Ibn Taymiyya and Ibn Qayyim al- Jawziyya.

119 Cardinal 2010, 199.120 Hirschl 2010; Nurlaelawati and Salim 2017.



2006, and have held such positions since 2010.121 In Afghanistan, during the Taliban rule from 1996 to 2001, women were excluded from any form of public service. While the post- Taliban Afghani legal system equalizes the position of female and male judges, in 2013, women constituted only less than 10 percent of the country’s judicial sector and less than 20 percent of lawyers.122 Such de facto discrimination is a product of the strict gender segregation engrained in the Afghan social order. There are also logistical issues such as the shortage of safe transportation and housing for women who attend law schools or attempt to complete sharia training.123 Obstacles of a social nature are deeply entrenched in several societies of ILS, whereby Muslim women rarely hold judicial seats— especially at higher levels— despite domestic laws that explicitly base judicial appointments on merit. In several ILS openly inclusive laws have not yet been able to successfully counterbalance societal skepticism.124

Oaths of a religious nature are not part of the vocabulary of modern interna-tional law. Arbitration between city- states in ancient Greece, one of the earliest instances of interstate dispute settlement, relatively quickly moved away from settlement by the Olympian gods, or a common religious body.125 The arbitra-tion process came to rest mostly on secular logic and logical reasoning. In fact, in the process of presenting their cases before an arbitral tribunal, the disputants offered material, hard evidence such as records of previous agreements, maps, historical records, and testimony of eyewitnesses. Later on, religious oaths returned to international practice in a rather sparing manner in the medieval pe-riod, when the Catholic Church had a strong influence on global relations.126 Over time, however, as secular international adjudicators appeared, any religious pledges were removed from the courtroom.

121 Zin 2017, 162. 122 “Out of the Shadows onto the Bench: Women in Afghanistan’s Justice Sector.” International Development Law Organization, 214, 7 available at https:// www.idlo.int/ sites/ default/ files/ IDLO_ Afghan%20Legal%20Professionals%20summary.pdf. 123 Caspani 2014. 124 In 2013, for the first time, women were appointed to Saudi Arabia’s Shura Council, which had been traditionally reserved for men only (Hamdan 2013). The Shura Council is an effort at sharia- recommended collective decision- making. The 150- member body advises the king, drafts laws, and debates major issues of interest to Saudi Arabia (see the Shura Council’s official website at http:// www.shura.gov.sa/ wps/ wcm/ connect/ ShuraEn/ internet/ Home). For a recent report on the status of women in Saudi Arabia, see Tran 2015. 125 Bederman 1999. 126 During these times, treaties were accompanied by religious vows. As Khaliq (2013, 106) observes, “so there would be both a religious obligation of observance as well as a moral duty of truthfulness, both of which the Catholic Church emphasized by excommunicating those who failed to comply with the treaty’s terms.”



In contrast, oaths of a deeply religious nature continue to hold a privileged position in Islamic law.127 They appealed to Arabs who, as the Quran’s primary audience, were well acquainted with oaths as a method for making credible commitments. The Quran repeatedly speaks about the process of oath- taking.128 For instance, Sura 16, verse 94 reads: “Take not your oaths as mere mutual de-ceit.” This verse underlines the community- based and relational character of sharia. Every individual contributes to the Muslim society and must recognize the importance of connection to others in all aspects of life. Oaths to God as well as oaths to other believers embody this aspect of sharia’s nature.129 Most impor-tantly, holy oaths reinforce a legal as well as a religious ethic in the courtroom.

The system of oaths was not only commonly acknowledged in early Islam, but proved to be indispensable in many aspects of social life in Muslim communities, including politics, culture, and law. The Constitution of Medina, the basis of Muhammad’s authority in Medina, was an oath- bound agreement.130 Oaths appeared repeatedly in treaties between collectivities, whereby two po-litical leaders swore an oath to guarantee a peace treaty, to establish a relation of subjugation, or to seal a conquest of a territory. In fact, a treaty without an oath was often considered invalid, or was downgraded from a peace treaty to a confirmation of “a state of ‘nonbelligerency.’ ”131 In general, some oaths were lengthy and detailed, while others were relatively succinct, simply confirming a concrete deed or action. Usually, oaths were taken in the presence of notable witnesses, such as notaries, qadi, and, in the case of treaty oaths, notables or a caliph. Regardless of the type and subject of an oath, God was considered not just a passive recipient of a valid oath, but an active party. If a believer swears by God, he or she is in effect invoking God’s judgment or punishment if the oath is not fulfilled. A vow could also take the form of an individual’s attestation to God. Such an oath provided a widely accepted way of stating one’s obligation. The gravity of this oath rests on the fear of His retribution if such a pledge is ill- taken.

Oaths remain an essential part of religious adjudication in several ILS, espe-cially in cases when testimonies or notarized documents of the litigating parties are contradictory. Disputants may also use a holy oath if there is a lack of hard evidence supporting their claims. In- court oaths have no established form, and

127 Hamoudi, Al- Sharaa, and Al- Dahhan (2015) examine the role of oath- taking during arbitra-tion proceedings in Iraq’s Shi’i tribes. The authors describe that oaths of religious nature are used especially in cases when “there is no evidence in favor of a claim on the part of an injured party, nor against it” (p. 236). 128 Ibrahim 2009, 476. 129 Rosen (2000, 185) writes that the Quran and sunna put great weight on “the role of the so-cially constructed person as the locus of moral and religious responsibility.” 130 Mottahedeh 2001, 45. 131 Mottahedeh 2001, 60– 61.



it is up to the judge to require that either one or both parties take the vow. To highlight their gravity, holy oaths used in litigation are commonly taken in the presence of two notaries at a local shrine, or a mosque. Thus, “it is not unusual for an individual to maintain a particular testimony right up to the moment of oath- taking and then to stop, refuse the oath, and surrender the case.”132

Similarities

Yes, I think we should definitely look at the similarities.— Hans Corell, the UN’s former Under- Secretary- General for Legal

Affairs of the United Nations133

Role of Scholars in Law Formation

Scholars have played a formative role in the development of international law.134 As Article 38(1) of the ICJ Statute stipulates, “the teachings of the most highly qualified publicists of the various nations” are regarded as a subsidiary source of international law.135 Writers such as Vattel, Vitoria, Grotius, Pufendorf, and Gentili constituted supreme authorities in the sixteenth to the eighteenth centuries, and their works have shaped the substance and interpretation of states’ legal obligations.136 The incomplete nature of international law and the lack of su-preme legislative as well as adjudicative institutions have necessitated the use of academic writings to articulate the rules of interstate relations. Scholars reflected upon existing state practice, analyzed the underlying reasons for legal regulation, proposed new rules, and identified weaknesses of the slowly developing system of international justice.137 In general, jurists have contributed enormously to the evolution of international law, stretching the law’s boundaries and identifying the focal points of academic discussions. In an important way, it is the interna-tional legal scholarship that spurred the development of the law among nations. As Diehl and Ku write, “International law’s historical development has been pushed along by the need to provide intellectual bases to increase the capacity for international law to meet the increasingly complicated needs of international

132 Rosen 2000, 11. 133 Author interview with Hans Corell, March 14, 2015. 134 I address the role of scholars in the development of international law earlier in this chapter. 135 ICJ Statute, available at http:// legal.un.org/ avl/ pdf/ ha/ sicj/ icj_ statute_ e.pdf. 136 Hugo Grotius’s Mare Liberum and On the Law of War and Peace; Emmerich de Vattel’s Droit des Gens; and Samuel von Pufendorf ’s The Eight Books on the Law of Nature and Nations are just a few examples of most influential scholarly works. 137 Shaw 2003, 106.



life. From the viewpoint of the scholar, the increase in international activity has provided a rich body of experience to draw on for observation and analysis.”138 Modern international law continues on its path of evolution, expanding its scope and strengthening its association with domestic legal systems. The scholarship, with its emphasis on structures, limitations, key values, and processes, advances our understanding of how international law works in theory and in practice. Whether explanatory, normative, or process- oriented, the various scholarly writings provide the means to assess the state of international law and articulate its nature. In an important way, modern writers drive the development of inter-national law, providing a wide range of fresh theoretical lenses to study interna-tional law. Some of these approaches stress the dynamic nature of international law, some put an emphasis on what the law should be, some focus on describing existing rules. Some scholars hold to the positivist view, some revive the natu-ralist theories of international law, some look at international law via economic or critical lenses.139 Rational- choice theory has furthered the scientific analysis of international law, with its move away from normativism.140

In contrast with the civil law tradition, where the legislature plays a major role in the process of law creation, and the judge- made common law tradition, Islamic scholars are the backbone of sharia. They discover what law actually is and mold sharia into concrete rules and principles. As Hallaq writes, schools of jurispru-dence, madhhabs, in essence “produced law and afforded its axis of authority.”141 Historically, scholars held a monopoly on interpreting God’s will.142 Scholarly fiqh books were comprehensive texts filled with concrete cases, specific rules applicable to everyday life, such as the correct ways of worshiping God.143 With time, some of these compendiums became more authoritative than others; some jurists, such as Abu Hanifa, Malik Ibn Anas, Al- Shafii, and Ahmad ibn Hanbal, acquired strong positions in the society. Subsequently, their works provided the basis for the dominant schools of jurisprudence. In some instances the jurists’ position was so strong that they could juxtapose themselves against political authorities as the true guardians of sacred law.144 During the nineteenth century,

138 Diehl and Ku 2010, 15. 139 For a review of contemporary approaches to international law, see Koskenniemi 2001. 140 See, for instance, Goldsmith and Posner 2005; and Guzman 2008. 141 Hallaq 2009b, 71. 142 Feldman 2008. According to Khadduri (1984, 146), “the judges, indeed the whole commu-nity of scholars (‘ulamā’), were considered the light of the world and custodians of Religion and Law after the Prophet.” 143 Some fiqh books were more comprehensive than others, and usually consisted of two parts. The first part dealt with the law of rituals and was, because of its subject, mostly religious. The second part regulated contracts and types of transactions. See Bassiouni 2014; Fadel 2016; and Mallat 2007. 144 See, more generally, Hallaq 2009b.



comprehensive reforms changed the legal system of the Ottoman Empire. Scholars’ ability to pronounce law was substantially weakened, and written legal codes— molded in the spirit of the civil legal tradition— were introduced.145 Corresponding to this shift in lawmaking authority was a movement to promul-gate constitutional acts that incorporated Western legal thinking. These reforms fundamentally changed scholars’ authority.146 These changes notwithstanding, the strong connection between scholars and law remains a hallmark of the con-temporary Islamic legal tradition.147

Albeit indirectly, jurists affected the Islamic process of adjudication. Qadi consulted scholars, particularly in the context of hard cases and questions of law. In fact, some qadi “were in the habit of asking ‘people who know’ about difficult cases they faced— a practice highly encouraged by the Quran itself.”148 In some ways, then, jurists contributed to the way that the law was interpreted and overlaid onto real cases. As a result, there exists an important “feedback be-tween holy law and the real world.”149 I return to Islamic schools of jurispru-dence in chapter 7. There, I go beyond the particulars of the secular law/ Islamic law balance within ILS domestic legal systems, and consider whether teachings of Islamic jurisprudential schools might influence ILS’ views of international mechanisms for conflict management.

Custom

Custom, as evidence of a general practice accepted as law, is listed as one of the sources of international law in the ICJ Statute.150 Until the twentieth century, customary rules were the main form of public international law, covering a wide range of substantive legal space such as maritime activities or diplomatic immu-nity. Custom played a formative role in the development of private international law, especially principles governing conflict of laws, and international trade.151 With time, treaties became the major instrument of international law. As Diehl

145 See Fadel 2009. 146 In this context, it is important to add that within the Shia school of jurisprudence, scholars have largely kept their substantial influence in the process of determining sharia. See, for instance, Hamoudi (2010a), who in response to Feldman (2008), elaborates on Shia jurists’ position in Iraq, especially in the context of modern Iraq’s constitutionalism. 147 For an interesting explanation of how fiqh and Islamic jurisprudence work, see Abou El Fadl 2001; and Quraishi- Landes 2015. 148 Hallaq 2005, 89. The practice of consulting legal specialists was in most regions normative and non- obligatory. 149 Glenn 2014, 189. 150 The Statute of the International Court of Justice, Article 38.1(b). 151 Bradley and Gulati 2010.



and Ku argue, “Custom was once the most common source of international law, but its lengthy developmental process led treaties to assume the primary role in positive international law.”152 Not surprisingly, states prefer treaties to custom because treaties are “more certain and result from the willing participation of contracting parties in the negotiating process.”153 There is a rich library of studies that focus on the exact scope and meaning of custom. In principle, custom is composed of two elements: an objective element, general state practice, and a subjective element, a conviction that such practice indeed reflects law. These two components coexisting together generate international customary law. As a rule, constant, habitual, and common practice can be evidenced via states’ actions and omissions, but it is uncertain how long states must engage in such practice or how widespread such behavior should be. Lowe writes, “There is no set pro-portion of the States in the world that must conform to a pattern of behaviour in order for it to be a ‘general practice’: even less is there any need for every State in the world to conform. It is, however, necessary that those States whose interests are particularly affected by the rule should participate in the prac-tice.”154 Similarly, the subjective element of custom that captures the sense of legal obligation is difficult to ascertain.155 It is easy to see why it is challenging to establish whether the psychological component of a customary rule indeed exists. Statesmen often do not explicitly declare that their actions are in line with international law or that they indeed believe a certain expectation or pattern of behavior to be the law.

Despite the uncertainty surrounding custom as a source of law, these un-written norms continue to matter in modern international law. Although more constricted than in the past, custom fills in the gaps of treaties, regulates con-duct of nonparties to international agreements, and governs behavior in areas where states’ conflicting political interests impede the treaty- creation process.156 The position and character of custom, as well as the requirements for its forma-tion as a binding source of law, reflect the evolutionary character of international law. Whereas in the past, custom had to be based on long- lasting practice, cur-rently it takes considerably less time for customary law to emerge.157 In general, the concern with the passage of time in the context of customary international law centers on the establishment of authority. As Lowe writes, “It is necessary

152 Diehl and Ku 2010, 40. 153 Cassese 2005, 167. 154 Lowe 2007, 37. 155 In other words, it is difficult to know that states are indeed convinced of “conforming to what amounts to a legal obligation.” The North Sea Continental Shelf Cases, International Court of Justice, Judgment of February 20, 1969, para. 77. 156 Lepard 2010. 157 Roberts 2001.



to show that a putative rule is rooted in the community, and not an ephemeral reflection of the views or aspirations of particular litigants or lawyers.”158 The ICJ has in its jurisprudence confirmed that custom is by no means obsolete as a source of states’ legal obligations.159 In fact, some scholars argue that custom is enjoying a revival in international law. While it used to be considered an em-blem of international law’s conservatism and lack of progress, it has since be-come a vehicle of change, adapting treaty rules to the fluctuating requirements of today’s community of states.160 Generally, there is no hierarchy between custom and treaties, and either can regulate any subject matter. But a small percentage of international norms, some of which may be customary, enjoy a specific status. From these peremptory norms, called jus cogens, no derogation is allowed.161 Article 53 of the Vienna Convention provides a definition of jus cogens as a norm which is “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”162 Judging from the jurisprudence and practice of interna-tional courts, several norms belong most firmly in this category: rules against aggression, genocide, piracy, and forceful acquisition of territory, as well as the principle of self- determination of peoples. In addition to customs applicable to all states, there are plenty of local customary rules binding only on states of a specific geographical area. Existence of such local customs has been recognized by the ICJ in its judgments.163

In the Islamic legal tradition, urf, custom or usage, although strictly speaking not a source of law, constitutes an important cradle of legal obligations. Islamic law stipulates that everything which does not cross the limits established by God is permitted, and customary norms of behavior often fill in legal lacunae.164 The literal meaning of urf is “something that is known,” or practices of Muslims. Contrary to the Western notions of custom as residing outside the bounds of law,

158 Lowe 2007, 41. 159 Gabčikovo- Nagymaros Project (Hungary v. Slovakia), ICJ Judgment of September 25, 1997, ICJ Rep 1997, 7; and North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Judgment of February 20, 1969, ICJ Rep 1969, 3.

160 See Cassese 2005, 166.161 See Aust 2014.162 Vienna Convention on the Law of the Treaties, May 23, 1969, UNTS vol. 1155, p. 331.163 For example, in the Asylum case the Court discussed regional customs peculiar to Latin

American States with regard to granting diplomatic asylum (Colombia v. Peru, ICJ, November 20, 1950, ICJ Rep1950, 266– 289). Another example is the Right of Passage over Indian Territory case when the Court ruled that a local custom may be a source of legal obligation (Portugal v. India, ICJ Judgment of April 12, 1960, ICJ Rep 1960, 6).

164 Rosen 2000, 181.



urf is seen in many ILS not as separate from sharia, but as a locally acceptable var-iation or usage of sharia. Thus, rather than constituting dichotomous and exclu-sive categories, sharia and custom overlap and fuse in meaningful ways that are acknowledged by scholars, practitioners of Islamic law, and the average Muslim person.165 As Rosen suggests, “custom and nonjudicial modes of addressing conflicts are, therefore, not regarded as separate sources of law because they serve, both legally and culturally, as residual categories for all local practice not forbidden by the Quran.”166 Historically, mostly from the Ottoman times on, local customs were considered an acceptable basis for a qadi’s decisions and thus were explicitly quoted in judgments.167 In fact, judicial reliance on local custom invigorated the qadi justice, because people had almost no hesitation bringing cases to the courtroom for resolution. Custom continues to brings local flavor to ILS’ domestic legal systems: a situation similar to international law, where there are many customs confined to particular geographical regions.168

In the majority of ILS, urf is an important part of the legal landscape, appearing in judgments and books of jurisprudence. As long as customary local practices are not explicitly prohibited by sharia, urf is used in place of, or as a supplement to, written law.169 The Majalla, the 1877 civil code of the Ottoman Empire, de-voted several of its introductory articles to custom and reiterated traditional Arab legal maxims, such as “legal rules change with time” and “custom binds like a contract.”170 By way of contemporary illustration, Morocco’s family code, the Moudawana, talks about customary practices in the context of engagement,

165 Qadi played a vital role in incorporating custom into Islamic law, guided by a hadith that “whatever is considered good by the Muslims is good in the eyes of God.” Thus, qadi exercised dis-cretion with regard to what customary law would work well in the context of a particular court case.

166 Rosen 2000, 85.167 Vikør 2005, 210; Sonbol 2003, 234168 See Hussin (2016) for an excellent discussion of the role of local law in Malaysia. Customary

norms may vary regionally within one country. For instance, in Nigeria, “customary law is as multi-farious as are Nigeria’s many ethnic groups” (Ostien and Dekker 2010, 585). 169 Historically, in many instances, unwritten customary norms constituted a stronger legal source than a written document or a contract. Such was often the case in the context of the law of the sea (Khalilieh 1998, 15). 170 Articles 39 and 43 of the Majalla, as cited in Mallat 2007. Majalla is the nineteenth- century Islamic Civil Code that not only transformed but also reinforced traditional Islamic law. It comprised sixteen books preceded by an introduction, covering a wide range of substantive and procedural is-sues, including contracts, tort, and civil procedure. As a general pattern, the Majalla remained in force in several ILS until nationally tailored civil codes came into being, such as the 1949 Syrian civil code and the 1968 Kuwaiti civil code. Although the Kuwaiti civil code was not promulgated until 1980, the 1960 Law on Commercial Companies contained a significant portion of the subsequent civil code (see Huneidi 1986). In Jordan, the Majalla provided the basis for law until 1976, when the Jordanian civil code was promulgated.



financial maintenance in marriage, kinship, and commitment.171 The Qatari 2004 civil code references custom nineteen times and establishes customary practices as a subsidiary source of law in the absence of statutory provisions or relevant sharia proscriptions.172 Though some may see custom as calcifying tra-ditional laws, in more than one way it also provides an indispensable vehicle of subtle change in the Islamic legal system.173 As I mentioned in chapter 2, ILS’ constitutions often refer explicitly to custom and tribal traditions.174

Rule of Law

While debates over the meaning of rule of law are certainly important, I leave this task to legal scholars. In doing so, however, I recognize that there are many definitions of rule of law, some more encompassing than others, some that empha-size formal aspects, and others that home in on substantive values. Conceptually, the term “rule of law” denotes a set of norms and principles closely associated with legality and broader notions of justice. It is a vehicle for establishing and systematizing authority within a collectivity. As such, the substantive contents of the rule of law remain contested across different societies and time periods. According to Dicey, rule of law comprises three basic elements: the unquestion-able supremacy of law as opposed to the use of arbitrary power, equality in the eyes of the law for all citizens and government, and the privileging of the judi-cial process.175 The core definition of rule of law, regardless of cultural and polit-ical system, seems to suggest that law must apply to everybody in an equal way, including the sovereign. Thus, state powers cannot be exercised in an arbitrary manner. Laws must be clear and accessible.176

171 Article 5 states that an act of engagement should include “the reading of the Sura of Al Fatiha from the Holy Quran and the customary exchange of presents” (the Moroccan Family Code of February 5th, 2004); see also Articles 189 and 205. 172 Law No. 22 of 2004 Regarding Promulgating the Civil Code 22/ 2004, Article 1: “Where there is no statutory provision, the Judge shall rule according to the relevant provision of the Islamic Shariah, if any. Otherwise the Judge shall rule according to the customary practice. In the absence of such customary practices the Judge shall rule in accordance with the rules of justice.” 173 See Libson 1997. But see Ford (1995) for an extensive discussion of how the concept of custom in international law differs from that of Islamic law. Ford argues that derogation by practice, which is present in international law, is formally prohibited in Islamic law (pp. 523– 525). 174 For an interesting analysis of the interaction between state law and tribal customs, see Hamoudi et al. (2015). The authors argue, in the context of the southern part of Iraq, that inconsist-ency between two legal systems may not automatically lead to conflict, because “inconsistent legal systems may just as readily cooperate with one another using their disparate rules to maintain order as they might be in conflict over which rules to apply” (p. 216).

175 Dicey 1889.176 See Chesterman (2008); Macedo 1994; and Raz (1977) for more discussion of this issue.



Having briefly addressed its meaning, I now explore the rule of law’s presence in international law and Islamic law. In doing so, I also talk about the broader notion of justice, since justice is a major theme of law and legality.177 Moreover, in the Islamic legal tradition, the idea of law, or more specifically, the supremacy of law, is directly linked to justice.178 We will find that although the meaning of justice may be quite different in the two legal systems, and the source of justice, God, in Islam has no clear counterpart in international law, common to both is a fundamental pursuit of justice as a means to peaceful coexistence.

Judge Rosalyn Higgins, former president of the International Court of Justice, observed that “the concept of the ‘international rule of law’ is still a work in progress.”179 It is reasonable to expect that any attempt at legalization of in-terstate interactions is founded on the conjecture that law is somehow objec-tive and unbiased and improves the operation of any community.180 This law stands in contrast to states’ political preferences and power politics, which are hardly impartial.181 In general, rule of law has a broader meaning at the inter-national level. According to Corell, “the concept of ‘rule of law among the na-tions’ may have a richer association; it may include also harmonious interaction of internal and international law, in which international law has supremacy.”182 States’ actions suggest that most governments care about compliance with in-ternational law, and about their reputation. It’s not an overstatement to suggest that the international community expects states to adhere to the rule of law not only in the domestic realm, but also internationally. The mandate of compliance with international law is often interpreted as an essential precondition for state existence. Fundamental principles of bona fides and pacta sunt servanda are firmly grounded in the global order.183

177 In fact, several theories of rule of law directly rely on a substantive understanding of justice, framing rule of law as an amalgam of ideals, rights, and normative principles (Dworkin 1985).

178 Brown 1997. 179 Speech by Judge Rosalyn Higgins, “The ICJ, the United Nations System, and the Rule of Law,” November 13, 2006.

180 See Hurd 2014.181 See Koskenniemi 1990.182 Speech by Hans Corell, Under- Secretary- General for Legal Affairs, the Legal Counsel of

the United Nations, “Prospects for the Rule of Law among Nations,” lecture at the United Nations Vienna International Centre, February 24, 2004. 183 Bull 1977. In the context of international law, bona fides denotes good faith, or acting without deceit, and instead with honesty, fairness, and reason in all interstate relations. Pacta sunt servanda, one of the most important expressions of bona fides, means that all pacts/ promises must be kept (for more discussion, see Mitchell and Powell 2011). One of the first writers on public international law, Gentili, argued that good faith constitutes a wide ethical and legal principle that should be upheld in international relations. Drawing on the tradition of Roman law, Hugo Grotius granted bona fides a place among the universally accepted foundations of the law among nations.



The UN Charter expresses its hope “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”184 This means that law, not power, should be the basis for resolving disputes.185 Power- based considerations, coupled with states’ innate propen-sity to further their own interests and agendas, mean that international law is at times trampled upon. This in turn may suggest that international law is not al-ways equally and indiscriminately applied to all.186 In the words of Koskenniemi, “The fight for an international Rule of Law is a fight against politics, understood as a matter of furthering subjective desires and leading into an international an-archy.”187 But, as in the context of any legal system, one has to distinguish be-tween the principle or ideal of rule of law and the pragmatic reality. Although the domestic/ international analogy is not straightforward in this context, prin-ciples of rule of law as well as justice constitute premises of international law and courts.188 Thus, the International Court of Justice’s proper function is to administer justice through the application and interpretation of international law, which deepens international society’s legal cohesiveness.189 More generally, as Alter shows, international courts “are increasingly part of legal contestation about the meaning of international law and what government respect for the rule of law entails.”190 Like a good domestic court, an international court as an inher-ently legal institution is to embody the international rule of law and justice.191 According to Ratner, “The rules and structures of international law turn out to have their own morality and represent a real- world, albeit far from ideal, incar-nation of a vision of global justice.”192

Justice and the notion of supremacy of God’s law are the foundation of sharia.193 Ruthven writes, “If one could sum up in a phrase the essential dif-ference between the two great western monotheisms, one might say that whereas Christianity is primarily the religion of love, Islam is above all the

184 UN Charter, Article 1.The Charter’s Preamble also mentions the resolve “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.”

185 See Chesterman 2008.186 See Simpson 2004; Goldsmith and Posner 2005.187 Koskenniemi 1990, 5.188 See Hurd 2017, for an interesting analysis of the rule of law in the domestic and international

realms. 189 Gross 1971, 259. Beth Simmons (2009, 48) notes that the ICJ has articulated “for a global audience Western conceptions of the rule of law.”

190 Alter 2014, 28.191 Helfer and Slaughter 1997; Powell 2013a.192 Ratner 2015, 2.193 See Bassiouni 2014; and Fadel 2010.



religion of justice.”194 The Islamic conception of justice is absolute in nature, and it is to be pursued not only within the Muslim community, but also with the non- Muslim world, transcending any consideration of race, religion, or gender.195 Several Quranic verses convey the message of justice: “O ye who believe! Stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from jus-tice. Be just: that is next to piety: and fear Allah.”196 The ongoing pursuit of justice— as a natural responsibility of the human kind— is a precondition of a lasting peace between individuals as well as between states.197 Since the emer-gence of Islamic polities, Muslims have attempted to create a society guided by God’s laws. Rule of law takes on a specific meaning in these polities. Hallaq observes that “if God is the only sovereign— which is to say, if God is the ulti-mate source of moral authority— then any system that regulates human beha-vior must heed the general norms and technical rules and regulations derived from and dictated by the higher moral principles. This, for Muslims past and present, is the true and ultimate meaning of the rule of law.”198 A ruler’s po-litical powers are contractual in nature and can be understood as a form of trusteeship. Islamic jurists have extensively written about supremacy of law, arguing that all actions of the public authorities lack validity unless they are taken in accordance with the law.199

According to the Quran, judges must follow law in their decisions and no ruler can interfere in this process.200 In a way, judicial independence was the cor-nerstone of Islamic law.201 Judicial decisions were held in the utmost esteem, re-gardless of the ranking of the judge. The fact that sharia knew no formal appeal from judicial decisions substantially strengthened judicial independence. At the same time, because it was the jurists who were expounding upon law, the state

194 Ruthven 2006, 219.195 See Bassiouni 2014.196 Quran, Sura 5, verse 8. In 2012, 97 percent of ILS’ constitutions contained references to jus-

tice. For instance, Saudi Arabia’s 1992 Basic Law of Governance (Article 8) states that “the rule in the Kingdom of Saudi Arabia is based in fairness (justice), consultancy (consultative) and equality, in conformity with the precepts of the Islamic Shari’a.”

197 Abu- Nimer 2010, 77.198 Hallaq 2013, 158.199 See Hallaq 2005.200 Two verses of the Quran directly refer to this issue: Sura 5, verse 49, “So judge between them

by that which Allah has revealed,” and verse 45, “Whoso judges not by that which Allah hath revealed, such are wrongdoers.” Initially, the judge was a person of celebrated and incomparable position, and was referred to as the ruler through law (Weeramantry 1988, 79). 201 In 2012, 93 percent of ILS’ constitutions included judicial independence, while only 59 per-cent mentioned rule of law.



itself was “a state under the law.” 202 Thus, scholars, the state, and the people were to operate within legal limits established by God.

Of course, as with any legal system, whether domestic or international, the ideal of rule of law gets compromised by political realities. As is true in the Western world, practices of ILS often depart from the tenets and ideals of sharia and bow to the demands of coercive governance.203 In the twenty- first century, the rule of law suffers in several ILS: judicial independence is compromised, courts are marginalized, there is a lack of systematic case reporting, and judges are strategically chosen by political leaders.204 While all legal systems, some much more than others, face challenges, rule of law’s predicament in ILS neces-sarily has to do with the dilemma between Islamic governance and the modern paradigm of the secular nation- state.205 One must also take into consideration socioeconomic conditions and violent political movements, both of which fre-quently have a shattering effect on the quality of governance in many ILS.

Islamic law, like international law, embraces the pacta sunt servanda prin-ciple.206 The Quran obliges all Muslims to keep their contractual promises by stating, “O ye who believe! Fulfill (all your) obligations.”207 Notably, many

202 Al- Khasawneh 2014, 12; available at http:// www.barcouncil.org.uk/ media/ 291167/ eighth_ rule_ of_ law_ lecture.pdf. 203 The period of national independence after the fall of the Ottoman Empire witnessed a sub-stantial weakening of the rule of law when the judiciary in many cases became a tool of the state. More generally, see Bassiouni 2014; and Platteau 2017. 204 Mallat (2007, 214– 215) reports that in some Arab jurisdictions, finding judicial decisions is either impossible or very hard and cumbersome. For example, decisions of the Egyptian Court of Cassation were published six years behind schedule in the 1990s. However, some ILS such as Tunisia, Iran, Morocco, Lebanon, and Jordan have a better system of case reporting, often thanks to private publishing companies. 205 Hallaq 2013. It is also important to recognize that there have been, most certainly, secular rule- of- law movements in several modern- day ILS. Important examples are the 2007 Pakistani lawyers’ protests. More generally, in contemporary ILS, considerations of upholding the principle of rule of law are frequently advanced separately from Islamic law. As Hamoudi (2008) argues, sharia- grounded arguments are often brought up by Islamist groups as a means of pushing back against Western political or cultural values.

206 See Bassiouni 2014; and Fadel 2010. 207 Sura 5, verse 1. The Quran also mandates that Islamic collectivities, such as tribes, nations, and states, “fulfill the Covenant of Allah when you have covenanted” (Sura 16, verse 91) and avoid fighting with “those who join a group, between you and whom there is a treaty (of peace), or those who approach you with their breasts restraining from fighting you as well as fighting their own people” (Sura 4, verse 90). On a more general note, the Islamic version of pacta sunt servanda is elevated by the Quran to the level of a religious duty for all Muslim followers. This principle is to be held in utmost respect not only in the context of relations between the Muslim collectivities, but also with non- Muslim entities. In fact, as Badr (1982, 59) rightly noted, “The duty of honoring a treaty with non- Muslims is even given priority over the duty of mutual help among believers where the two duties are in conflict” (Sura 8, verse 72).



Islamic scholars draw no distinction between domestically concluded contracts of a civil or commercial nature and agreements between states. Both forms of agreements have the same validity. Interestingly, 1963 arbitration proceedings between the Kingdom of Saudi Arabia and the Arabian- American Oil Company (ARAMCO) declared that “Moslem Law does not distinguish between a treaty, a contract of pubic or administrative law and a contract of civil or commer-cial law. All these types are viewed by Moslem jurists as agreements or pacts which must be observed, since God is a witness to any contract entered into by individuals or by collectivities; under Moslem law, any valid contract is obliga-tory, in accordance with the principles of Islam and the Law of God, as expressed in the Quran: ‘Be faithful to your pledge to God, when you enter into a pact.’ ”208

Conclusion

There are important points of contact between international law and Islamic law, points that should be clearly isolated, analyzed, and accurately labeled. Global dealings and practices of the Islamic milieu are informed and transformed through the way that the Islamic legal tradition interacts with international law. ILS as collectivities operate in the context of two normative systems that coexist side by side. In an important way, Islamic law provides lenses through which ILS conceptualize interstate relations. The idea of subjugation to an additional value system— that of Islamic law— looms larger as an issue for ILS than for any other countries where religion plays an important societal role. Nevertheless, in this context, it is useful to think about whether religious beliefs are truly dif-ferent from other beliefs, such as beliefs in supreme, overarching values. As An- Na’im explains, “it is not true that international law seeks to achieve order without belief, unless one limits the realm and scope of belief to doctrinal re-ligious belief, which was never true of Muslims anyway. International law is in-deed based on shared belief, such as belief in the rule of law, in liberal values of equality and justice, or at least in the desirability and possibility of peace.”209 Mohammed Al Qasimi once told me, “There is a book called Al- Siyar Al- Kabir, written by Shaybani. This is the counterpart of Grotius’s book On the Law of War and Peace. So this is the main source for Islamic international law. It contains very similar principles and ideas about the nature of relations between Islamic states and other states.”210 But there are also substantive and procedural areas

208 Saudi Arabia v. Arabian American Oil Company, 1963, 27 I.L.R. 117.209 An- Na‛im 2004, 164– 165.210 Author interview with Professor Mohammed Al Qasimi, College of Law, United Arab

Emirates University, Al- Ain, March 2013.



where Islamic law and international law diverge, insofar as they lack analogous concepts. Chapters 5, 6, and 7— where I empirically consider ILS’ preferences toward international conflict management mechanisms— tell an interesting story about how the dual pull of Islamic law and secular law within ILS’ do-mestic legal systems matters. If we are to develop a meaningful understanding of how peaceful settlement works, we must gain knowledge of differences and similarities between the Islamic legal tradition and classical international law. In the following chapter, I lay out the theory of Islamic peaceful dispute resolution, which provides a clear picture of the processes that define ILS’ preferences to-ward international conflict management.


Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford University Press (2020). © Oxford University Press.DOI: 10.1093/oso/ 9780190064631 .001.0001

4

A Theory of Islamic Peaceful Resolution of Disputes

The hadith of the Prophet and other sources teach that Muslims are brothers and constitute a brotherhood. So Muslim countries should not be hostile to each other. They should instead try to conciliate.

— Aida Othman, Malaysian law practitioner1

Any group or community has to institutionally handle conflict among its members. At the level of the international system, disagreements between states are commonplace. The means used to manage conflict— as a simple form of social interaction— vary across legal traditions, cultures, and time. These differences are based on how each society defines law and understands the nature of con-flict, justice, and rule of law.2 A state’s domestic legal system, in turn, reflects how the society grapples with the process by which law can solve disputes. In a mean-ingful way, “law comes later than the moral knowledge.”3 In this context, several questions arise. Does the restoration of a relationship between the aggrieved parties matter in how disputes are settled? What is the relationship between the judge and the disputants? When are settlement decisions considered legiti-mate? Each legal system gives divergent answers to these questions. Approaches or paradigms of conflict resolution are sometimes deep- seated and strongly en-grained in the fabric of a state, reflecting not only its domestic legal system, but also culture and religion.4 How international law regulates and institutionalizes

1 Author interview with Dr. Aida Othman, a partner at Zaid Ibrahim & Co., Malaysia (a member of the ZICO law network of entities), August 28, 2015. Dr. Othman specializes in Islamic banking and finance, Islamic capital market instruments, and takaful products and operations. She also advises on sharia compliance and governance, including on the legal and regulatory framework for Islamic finance. 2 Cohen 2001. There is a voluminous scholarship on cultural and linguistic differences in the con-text of dispute resolution. See Abu- Nimer 2010; Cohen 1997, 2001; Rehman 2011.

3 Author interview with Imam Ibrahim Amin, Oxford, UK, May 16, 2016.4 Cohen uses the term “paradigms of conflict resolution” (2001, 26).



dispute resolution is largely based on idiosyncratic features of Western legal traditions: common law and civil law. In particular, the Western understanding of how a conflict should be resolved and what it means to administer justice is deeply implanted into international institutions— the issue which I addressed in chapter 3.

This chapter introduces the theory of Islamic dispute resolution and sheds light on how the Islamic approach to conflict settlement shapes contemporary interstate dealings of ILS. Fundamental to my argument is the distinction be-tween nonconfrontational practices of conflict management embraced by the Islamic legal tradition and the confrontational litigation culture present in the West. Careful parsing of the distinctions between Islamic and Western dispute resolution models opens up new ways of conceptualizing sharia’s presence in interstate dealings. I seek to understand how creeds of Islamic law, as embedded in ILS’ domestic legal systems, get translated into these states’ preferences to-ward international conflict management venues. My argument is that an inter-esting intersection of domestic and international law occurs when ILS make their decisions regarding what dispute resolution forums to choose. Setting po-litical and strategic considerations aside, there is a powerful drive on the part of the Islamic milieu to settle their international disputes according to procedures embraced by sharia. Thus, I argue that the promotion of Islamic collective values and brotherly informal settlement carries over from the domestic realm to inter-national relations of ILS.5 Importantly, however, there is no one way in which the Islamic legal tradition shapes ILS’ preferences toward international settle-ment venues, because the degree of Islamic law’s presence in the domestic laws of these states varies across time and space. Saudi Arabia or Mauritania, where almost the entire legal system is charged with the implementation of sharia (however interpreted), have different preferences from Lebanon and Indonesia, where only parts of state governance aspire to employ Islamic law.6 The depth of Islamic law’s amalgamation into ILS’ official legal systems shapes how much of sharia gets projected onto interstate relations.

I argue that, ceteris paribus, ILS whose legal systems are deeply infused with tenets of Islamic law are likely to gravitate toward international settle-ment venues that resemble traditional Islamic law: third- party non- binding methods, such as conciliation and mediation. In contrast, ILS whose domestic

5 As I mention at the end of this chapter, in the context of Islamic- Arab society, it is difficult to determine to what extent collective values can be attributed to Islam itself, and to what extent to the cultural values embedded in Arab tribal societies. 6 As I mention in chapters 1 and 2, there is a vibrant discussion in the literature about whether it is feasible to include “true sharia” in state institutions and laws. For more discussion, see Ahmed 2016; and Hallaq 2013.


Th eor y o f Is lami c Pe ac e f ul R e s olut i on 127

legal systems embrace secular features are more receptive to international legal mechanisms, namely, arbitration and adjudication. In other words, the design of their domestic legal systems— in particular the balance between Islamic law and secular law— shapes ILS’ preferences toward international conflict man-agement mechanisms. Hence there is an important design element that links domestic and international venues for dispute resolution. The theory presented here challenges the treatment of the Islamic milieu as a homogenous category where the presence of sharia shapes states’ preferences in a uniform manner. Thus, not only do I hope to provide a description of Islamic nonconfrontational practices of conflict management, but I also hope to point to shortfalls of many of the assumptions about the Islamic milieu’s views of institutionalized means of global justice. My theory provides a conceptual toolbox that enables me to em-pirically reconfigure the Islamic milieu’s responses to the variety of international conflict management mechanisms.

This is not to say that other factors do not shape states’ choices of settlement venues. They do indeed. For instance, power relations between disputants, strategic considerations, strength of legal claims, concerns for domestic pol-itics, regime type, the cost and length of proceedings, as well as feasibility of future compliance factor into states’ decisions to use the various mechanisms.7 Nonetheless, congruence between domestic legal design and the legal design of international resolution venues exerts an important measure of influence on states’ choices. The process of venue selection illustrates how micro- level processes and factors matter in shaping states’ decisions on the international arena. I argue that in the context of international dispute resolution, it is the set of interactions between international and domestic rules that constitute “microfoundational relationships” capable of explaining states’ behavior.8 My approach is in no way meant to discount the influences of power, material gains, and other non- law factors. I return to this important point at the end of this chapter, arguing that ILS’ preferences partially differ from preferences of other states. It is the commitment to Islamic law that explains this partial departure.

The chapter is organized as follows: I begin by describing the features of inter-national dispute resolution methods ranging from negotiations to binding third- party methods. I then present my theory of Islamic peaceful resolution, which

7 See Alter 2014; Davis 2012; Goertz, Diehl, and Balas 2016; Huth, Croco, and Appel 2013; Koremenos 2016; Scott 2014. As Koremenos (2016, 222) argues, states may be drawn toward the informal resolution procedures because of their more calculable character, their “reduced cost, con-fidentiality, and expedited procedure.” I address these issues at length in chapter 5, where I focus on ILS’ preferences toward conflict management mechanisms in the context of territorial disputes. In the context of international trade regime, Davis (2012, 6) argues that domestic politics plays a crucial role in generating “demand for adjudication as an enforcement strategy.”

8 Chaudoin, Milner, and Pang 2015, 303. See also Hedström 2005.



outlines its characteristics and logic. Examples of contemporary applications of sharia in ILS’ domestic governance further shed light on how deep- seated these traditional Islamic norms of conflict management are. ILS do not treat interna-tional law in a uniform way because some of their institutions, although perma-nent, offer a degree of flexibility to the states that use them. This is particularly the case for the non- binding mechanisms, mediation and conciliation. In a way, therefore, ILS do not simply reproduce patterns established by the West, patterns entrenched in international law, but subtly transform the existing structures to suit their own preferences.

Peaceful Settlement of Disputes in International Law

The proper management and resolution of international disputes is a bedrock of international law. The UN Charter, in Article 2(3), articulates it clearly by requiring states to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”9 All means of peaceful settlement— negotiations, good offices, inquiry, concil-iation, mediation, arbitration, and adjudication— are embraced by interna-tional law and organizations, giving states a multitude of options to settle their grievances. Of course, the lack of truly compulsory jurisdiction, equivalent to what is the norm in domestic courts, suggests that disputing states may never face adjudication. States tend to resist outside pressures to engage in judicial set-tlement, preferring less formal settlement venues.10 Nonetheless, international law’s reach is not limited to the courtroom. Law and the possibility of adjudi-cation loom over all contentions, even those lying outside international courts’ jurisdiction.11 While law is employed primarily in arbitration and adjudica-tion, legal arguments have a role in all resolution methods. This is an important point: if Western- derived rules are embedded in some way in all international settlement venues, ILS have to carefully consider their settlement options. Are

9 The UN Charter website: http:// www.un.org/ en/ charter- united- nations/ index.html. 10 Ratner 2006, 821. The scholarship has been prolific in trying to explain why and under what conditions states use legal mechanisms. See Allee and Huth 2006; Davis 2012; Gent and Shannon 2010; Helfer and Slaughter 1997; Huth, Croco, and Appel 2013; Mitchell and Powell 2011; Posner and Yoo 2005; Powell and Wiegand 2010 and 2014. Koremenos (2016) discusses why states include specific dispute resolution provisions in their agreements. I return to this topic in chapter 5 in the context of territorial disputes. 11 I elaborate on the definition of a legal dispute in chapter 2, under the International Law section. See also Bilder (1998) for his discussion of out- of- court effects.



they willing to subject themselves to the jurisdiction of international courts or arbitration tribunals, or would less formal venues better satisfy their preferences?

In bilateral negotiations— a method least laden with procedural details— countries attempt to resolve their differences without an intermediary. It is via the simple exchange of views, dialogue, and consultation that most interstate contentions are indeed settled. The ICJ in its jurisprudence has repeatedly recognized the importance of negotiations. For instance, in the 1969 North Sea Continental Shelf cases, the Court stated that “there is no need to insist upon the fundamental character of this method of settlement.”12 During negotiations, states’ representatives present their own interpretation of facts and rules, but as Baxter notes, international norms of behavior introduce “new standards of relevance for the negotiations between the parties. Certain arguments will be ruled out.”13 In other words, international law constrains disputants’ behavior in limiting the set of acceptable arguments that can be placed on the bargaining table.14 Importantly for ILS, negotiations offer quite a bit of flexibility in terms of form, limits, and the basis for dispute resolution. ILS may simply choose not to center negotiations on issues of interpretation of international law but phrase their arguments in the context of sharia— a point central to my theory.15

Negotiations as a dispute settlement method are frequently a de facto prereq-uisite to adjudication. An international court can be called upon only if a con-tention at hand is of a legal nature. In other words, at the heart of the contention there must be a specific question of a legal nature. Only if that is the case can international law as applied by a judgment of an international court provide a solution. Frequently, it is during negotiations that the parties can isolate a spe-cific question of a legal nature that lies at the heart of their dispute. Alternatively, the parties may conclude that their dispute is merely of a political nature and does not, therefore, fall under the jurisdiction of an international adjudicator. As Merrills notes, “negotiations will often be needed to make the points of disagree-ment sufficiently concrete for reference to a court or tribunal to be possible.”16

12 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Judgment of February 20, 1969, ICJ Rep. 1969, 3 at 48.

13 Baxter 1980, 565. 14 As Ratner (2006, 821) put it, standards and norms of international behavior “represent a sort of fact on the ground that neither party can ignore.”

15 Nevertheless, interpretation of international law is often brought up in the context of terri-torial disputes, because most of them entail some form of disagreement over treaty stipulations or colonially imposed borders. For example, the many attempts at peaceful settlement during the Bahrain- Qatar contention revolved around interpretation of agreements (see Schulte 2004, 234– 235). Similarly, negotiations between Afghanistan and Pakistan over their disputed border centered on interpretation of international law: in this case the validity of the 1893 Durand Treaty delineating the border and which Afghanistan claimed was signed under duress.

16 Merrills 2017, 19.



Importantly, however, as stated by the ICJ, the absence of negotiations does not per se preclude an international court from exercising jurisdiction over a dis-pute at hand.17 This is especially so in cases where one disputant is explicitly not willing to attempt resolution via negotiations.18

Serious disputes may cause the disputants to break diplomatic relations. This decision in essence rules out bilateral talks. This was the case in the dis-pute between the United States and Iran following the seizure and detention of US diplomats and consular staff in Tehran. In such circumstances, an interme-diary may be asked to come in with the goal of “reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at variance,” as the 1899 Hague Convention stipulates.19 The UN Charter lists the most common forms of non- binding third- party methods: inquiry, con-ciliation, and mediation, but states can employ other methods of their choice. Unlike the political nature of negotiations, resolutions involving third parties involve more specific procedures and rules. Good offices may greatly expedite settlement of a contention. A good officer’s task is to persuade the disputants to start communicating without actively participating in the crafting of settle-ment terms.20 When the contention centers on a specific question of law or a fact, inquiry can prove useful. A neutral intermediary is brought in to provide an objective evaluation of the situation and to inquire into facts and pertinent law.21 At times inquiry may evolve into quasi- judicial proceedings. As one would expect, this transformation might occur when jurists are asked to serve as intermediaries. In such circumstances, a commission’s findings may actually put forward legal rulings, de facto turning inquiry into arbitration.22

Conciliation, in a way, is “a kind of institutionalised negotiation,” whereby the intermediary produces a proposal or a series of proposals that set out the terms

17 This general norm may not hold if a treaty or a convention obliges the disputants to negotiate, exchange views, and the like, before more formal methods are employed. Such is the case in the UN Convention on the Law of the Sea. According to Article 283(1), if a dispute over interpretation or application of the Convention arises, the parties “shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or some other peaceful means.” Yet, in its jurisprudence, the International Tribunal for the Law of the Sea has repeatedly interpreted this requirement in a rela-tively loose way. Also, if a dispute over land, or any other issue, arises out of a particular treaty, states may be bound to negotiate in good faith by the general norms of international law (see Merrills 2017, 19 and 24). 18 See, for instance, United States Diplomatic and Consular Staff in Tehran, ICJ Judgment [1980] ICJ Rep. 3. 19 The Hague Convention for the Pacific Settlement of International Disputes, July 29, 1899, Article 4.

20 Collier and Lowe 1999, 27.21 Collier and Lowe 1999, 24.22 Merrills 2017, 55.



of the settlement.23 There is no final binding decision, but the commission’s pro-posal may play a crucial role in bringing a dispute to an end. What distinguishes conciliation from mediation is that a conciliator usually offers proposals offi-cially and based on independent investigation. In contrast, a mediator typically suggests settlement informally and on the basis of material provided by the parties.24 Overall, conciliation is more formal in its procedure than mediation, although both methods retain a non- litigious character, as the parties are under no obligation to accept the intermediary’s recommendations. Subsequently, in both methods disputants maintain partial control over the contention.

Arbitration and adjudication, the two binding third- party mechanisms, constitute legal means of settling disputes according to international law, with disputants agreeing in advance to accept the award (arbitration) or judgment (adjudication). Whereas adjudication entails the submission of a dispute to a permanent court whose composition is largely fixed, in arbitration the parties choose arbitrators. The development of arbitration, as a method of dispute reso-lution, preceded the development of adjudication. In a way, arbitration provided a springboard for the emergence of permanent adjudicators. Both methods are based on relatively formal procedures of settlement, although rules of arbitra-tion are more flexible than those of adjudication.25 For instance, states have a high degree of flexibility in deciding the type of arbitral tribunal to be set up. Furthermore, it is in the hands of the disputants to lay out the procedure and frame the issue or issues that the arbitrators are asked to consider. Prior to the proceedings, the parties also stipulate how the tribunal is to acquire evidence, whether arbitrators can issue separate opinions, and if the final award will be published. Finally, the disputants define criteria, according to which the tribunal is to reach the decision: international law, a particular delimited set of interna-tional rules, rules of a domestic legal system, international practice, or equity.26

Procedure in international courts and arbitration tribunals is methodically regulated by comprehensive statutes and rules of procedure.27 The willingness

23 Merrills 2017, 69.24 Merrills 2017, 26.25 I elaborate on the ICJ’s various types of jurisdiction in detail in chapter 6, which is devoted to

ILS’ preferences toward the Court. 26 Merrills 2017, 100– 106. 27 See the Statute and Rules of the Court (ICJ website at http:// www.icj- cij.org). A similar level of formalism characterizes the International Tribunal for the Law of the Sea (ITLOS), and— perhaps to a lesser extent— the Permanent Court of Arbitration (PCA), both of which operate within confines of comprehensive statutes. Proceedings in the PCA are very elaborate because there are somewhat different guidelines for proceedings for disputes between states and disputes where only one side is a state. (See the PCA website at http:// www.pca- cpa.org.) ITLOS’s rules and procedures are meticulously spelled out in its Statute, as well as its Rules of the Tribunal (see ITLOS website, http:// www.itlos.org).



and ability of any international adjudicator to depart from its procedural rules varies from court to court as well as over time. For instance, although in the past the ICJ has— albeit rarely— agreed to accommodate the parties’ requests for slight procedural modifications, the increase in the Court’s caseload has necessitated a firmer commitment to its procedural rules.28 A cursory look at the ICJ’s procedure is necessary to understand why some ILS might shy away from international legal mechanisms. As the main judicial organ of the UN, the Court provides an illustrative example of formalism inherent to all international adjudicators.

ICJ proceedings take place in two distinctive phases: the written proceedings and the oral proceedings. The ICJ Statute is adamant on keeping both phases in each dispute, and there is a strict dividing line between them.29 Throughout the dispute, judges do not interact much with the disputants, and the written pro-ceedings are for the most part confidential.30 There is no confrontational, face- to- face bargaining in front of the judges. During the oral stage each disputant’s legal team presents its case to the bench. It is at this stage that “push comes to shove and that cases are, almost without exception, won or lost, saved or frittered away.”31 Despite being allowed to pose inquiries to the states’ representatives, the judges hardly ever do so. After the president officially closes the hearing, the Court “withdraws to consider the judgment.”32 Judges deliberate privately, in complete secrecy, and the judgment is announced in a final public sitting.33 Throughout the proceedings, an experienced lawyer’s expertise is indispen-sable to successfully navigate the myriad rules and procedures of international

28 Overall, disputes between states are usually more flexible and drawn out than disputes adjudicated by a domestic court. In the words of Rosenne (2003, 91), “The litigants are sovereign States which do not easily accept outside interference in how they conduct their affairs. Speed in the conduct of the proceedings is not always appropriate and the saying ‘justice delayed is justice denied’ not always pertinent, since proceedings can be significantly affected by diplomatic developments outside the control of the Court, or even of the parties themselves, and diplomacy can have its own time- table.” 29 The ICJ might, however, allow differences in the magnitude of pleadings in each stage (Rosenne 2003, 92). 30 Written proceedings entail officially documented written communication between each dis-putant and the bench. Although there are no comprehensive rules outlining the form of written pleadings submitted to the Court, the fact that they are usually published assures their appropriate-ness. The Rules of the Court stipulate what the pleadings should contain.

31 Gaubatz and MacArthur 2001, 249.32 Rosenne 2003, 108.33 The rule of absolute confidentiality in judicial deliberation is considered vital to the ICJ. In

fact, in the past it was difficult to discern the votes of the individual judges unless a concurring or a dissenting opinion was issued (Rosenne 2003, 92).



litigation. As Ratner notes, it is not diplomats but lawyers that are in charge of the international judicial settlement process.34

International law offers states a plurality of methods for dispute settlement, with negotiations and adjudication constituting the bipolar opposites. The non- binding third- party methods sit in between these two extremities. Alternate legal designs of the different venues coexist, interact, and relate to states’ domestic legal systems. After all, any form of dispute resolution is fundamentally based on consideration of norms, principles, and rules. As will become clear, the substantive and procedural intricacies of the legal methods may discourage some ILS. Law as played out in the Islamic courtroom— or for that matter, outside of it— has a distinctive role. Only some international conflict management mechanisms suit certain ILS.35

Uncertainty and Strategic Choices

States are uncertain when they choose a forum to resolve their disputes, and they are looking for clues that will help them form expectations about the set-tlement procedure and the settlement outcome.36 If a dispute gets delegated to an external intermediary, which is inherent to all third- party venues, uncer-tainty reaches its peak. In contrast with negotiations, additional factors come into play when a third party is asked to guide the settlement. As we move to-ward the legal mechanisms, the binding methods, the ambiguity of international norms becomes a real challenge, even in cases where laws and facts may appear sufficiently clear.37 All courts, domestic and international, interpret law when rendering a judgment. States face a great deal of uncertainty when funneling the dispute through the binding methods, because in no case can a contestant be confident about a court’s ruling or about an arbitral award.38 Elihu Lauterpacht,

34 Ratner 2006, 814. This is especially the case in the context of territorial disputes. Disputes over territory, perhaps more so than other disputes, resemble domestic litigation because they require an astounding amount of evidence, maps, and other documents. 35 As I demonstrate in this chapter, as well as in chapter 3, the fact that Islamic law and inter-national law diverge with regards to several substantive and procedural laws, does not necessarily imply an ongoing unsurmountable conflict between these two legal traditions. For a more general argument about the possibility of peaceful coexistence between inconsistent legal orders, see, for instance, Hamoudi, Al- Sharaa, and Al- Dahhan (2015). 36 Powell 2015; Powell and Wiegand 2014. See Koremenos (2016, 37– 40) for discussion of un-certainty as a concept in the institutionalist literature. Koremenos conceptualizes uncertainty as un-certainty about behavior (regarding the actions taken by others), as uncertainty about preferences (regarding “what one’s partners in the potential cooperation really want out of the deal”), and as uncer-tainty about the state of the world (referring to uncertainty about the outcome of cooperation).

37 Kohen 2013, 14.38 Bilder 1981.



a renowned scholar and practitioner of international law, did not hesitate to rec-ommend as a primary rule of international adjudication, to actually avoid it.39 Something similar can be said of arbitration, which, once one passes beyond the disputants’ ability to participate in the choice of arbitrators and influence the procedure, is “like going to the Court, but a different court.” 40 States, for the most part, like to retain control over a contention. Resorting to a third- party venue, in particular a binding venue, means giving up this control. This is a hallmark of the judicial independence that undergirds a court’s legitimacy. Application of law to a particular case is to be apolitical and unbiased. Thus, the uncertainty.

Furthermore, international law contains loopholes, and some substantive areas are only partially charted by law. International adjudication is in a sense an interpretive exercise whereby judges decipher which rival norms should be applied to a case at hand: “when seeking to overturn all but the most fla-grantly illegal state actions, litigants and courts must inevitably appeal to par-ticular interpretations of such ambiguities [ambiguities between norms].”41 At times, alternative legal justifications are drafted from domestic legal systems. As Sir Arnold McNair argued more than a half century ago, “international law has recruited and continues to recruit many of its rules and institutions from private systems of law.”42 This reality has not changed much. In reaching to-ward domestic legal systems, an international court engages in creative norm interpretation by deciphering “when new trends in practice, as evidenced in non- binding declarations, codes, guidelines and other ‘soft’ materials, cross the threshold of normativity and merit recognition as law.”43 Such ongoing practices further suggest that international law cannot be taken as a comprehensive legal system without normative empty spaces. Quite the opposite: it is institutionally entangled in as well as shaped by specific domestic legal contexts.44

International adjudicators have the power and the authority to defend or push against a particular way of understanding international law. In Alter’s words, international courts “contribute to constituting understandings of inter-national law, and thereby the preferences of actors that care about the legality of

39 Lauterpacht 2009, 485. 40 Author interview with an anonymous ICJ state advocate and international arbitrator, United Kingdom, October 2013.

41 Keohane, Moravcsik, and Slaughter 2000, 461. However, as Davis (2012) argues in the context of international trade disputes, international courts are not only interpreters of rules or dispensers of punishment, but they also play a crucial role in releasing domestic political pressures. 42 International Status of South- West Africa Advisory Opinion, Separate Opinion by Sir Arnold McNair, ICJ Rep 1950, 128 at 148. 43 Merrills 2017, 156. Similarly, international criminal tribunals extensively recruit principles that are applicable in criminal trials from domestic jurisdictions (see Mitchell and Powell 2011).

44 For an in- depth analysis of the “international” nature of international law, see Roberts 2017.



their behavior.”45 This process increases the litigants’ uncertainty, as they cannot be sure about which domestic legal system will contribute to interpretation of international norms.46 When choosing to litigate, states hope that an interna-tional court will corroborate their own domestic interpretation of international law. Judge Abdulqawi Yusuf of the ICJ has directly referred to the link between domestic legal traditions and international law: “It is not a paradox to say that the universality of international law depends on diversity. Indeed, in the case of in-ternational law, universalization and globalization do not reduce diversity; they actually promote it. For international law, universalization means borrowing and adapting concepts and principles from different legal traditions.”47

The fact that judges sitting on international courts and arbitration panels come from different legal backgrounds and are trained in different domestic jurisdictions further amplifies states’ uncertainty. This reality stands in sharp contrast with domestic courts whose judges receive their training in the same legal tradition. In this sense, Hersch Lauterpacht’s statement that “international law is the only branch of law containing identical rules professedly administered as such by the courts of all nations” does not accurately describe interna-tional law.48 Moreover, international norms are often understood, applied, and interpreted differently in different local settings. Xue Hanqin, the Chinese judge at the ICJ, proposed that “notwithstanding its universal character, inter-national law in practice is nonetheless not identically interpreted and applied among States.”49 These divergent interpretations shape what international law is perceived to be. Policymakers’ interpretations trickle down to domestic non- state actors and political, religious, and social movements, as well as the public at large. States see international law per se differently.50

Further illustrative of this process is the fact that the International Law Commission periodically engages in comparative examination of how different legal traditions and domestic jurisdictions view international law in order to gradually broaden international law’s substantive spectrum. Each legal tradition produces a unique domestic community of international law academics, with different legal training, professional skills, and experiences.51 These differences are in turn embedded in textbooks and treatises on international law. As a

45 Alter 2014, 23. 46 The lack of all- encompassing codification has important repercussions on states’ behavior. As Shaw (2003, 66) explains, states may feel uncertain because it is not always clear “where the law is to be found and how one can tell whether a particular proposition amounts to a legal rule.”

47 Yusuf 2013, 683.48 Lauterpacht 1929, 95.49 Hanqin 2012, 16.50 For in- depth discussion of comparative international law, see Roberts et al. 2018.51 Krisch 2018.



result, distinct local, national, and regional approaches to international law are perpetuated, undermining the prospect of unified international law.52 In the process of laying out procedural rules of an international adjudicator, or participating in its day- to- day operations, the various actors— be they judges, litigators, or policymakers— bring to bear their own understandings of what in-ternational law is. Richness of domestically based interpretations can potentially obscure commonalities, further increasing uncertainty that states face when attempting international arbitration or adjudication.

The literature shows that the potential costs of international dispute set-tlement cause states to be strategic in their venue selection.53 Internal legal design of conflict management venues matters. Before an adjudicator or a quasi- adjudicative forum yields a decision, facts of a particular dispute are funneled through the venue’s institutional procedures. Because of the high formalism of international binding approaches, courts and arbitration panels are, to some ex-tent, captive to their own legal design.54 Faced with uncertainty and at the same time driven to win cases, states engage in strategic behavior when seeking out a resolution venue. States forum shop. The goal is to carefully select a forum that will not only yield the most preferred outcome for a state, but also reduce the uncertainty associated with the resolution process. Before proposing a partic-ular conflict management venue, each disputant cautiously weights the domestic and international costs and benefits associated with all available options.55

Some scholars argue that to increase the predictability of the final settle-ment, states prefer to use resolution methods that resemble their domestic legal institutions simply because these methods are more familiar. In the words of Zartner- Falstrom, “Contemporary attitudes towards the authority of existing in-ternational law can best be seen as a function of a state’s historical legal tradition and how this legal tradition shapes the legal culture and institutional structures within each state.”56 In short, states entangled in disputes use their domestic legal systems as clues about an adjudicator’s behavior and the decision- making process itself. As a result, “similarity between a domestic legal tradition and an

52 For an excellent review of the scholarship that focuses on regional and national approaches to international law, see Roberts 2017; Roberts et al. 2018; and Verdier and Versteeg 2015.

53 See Powell and Wiegand 2010 and 2014; and Scott 2014. 54 For example, most procedural rules of the ICJ have been resistant to changes in the linguistic, strategic, and political environments of global politics.

55 It is interesting to note that, as Koremenos (2016, 22) shows, “Of the agreements with formal dispute settlement mechanisms, the overwhelming majority also explicitly encourage the informal settlement of disputes.” 56 Zartner- Falstrom 2006, 344. For an interesting argument about how legal traditions can ex-plain states’ preferences toward international legal norms, see Powell 2015, 2016, and 2018b; Zartner 2014.



international court allows a state to better understand the intricate rules of inter-national adjudication, allows a state to predict the outcome of the in- court pro-ceedings better, and causes a state to feel more comfortable with international dispute resolution.”57 Importantly, disputants are able to anticipate that a court will engage in a particular method of legal interpretation if the two sets of legal rules— domestic and international— align with one another.

The Western- based legal design of international settlement venues consid-erably increases ILS’ uncertainty when they attempt to settle their disputes. Because the Islamic milieu has, by and large, not participated in the creation of these venues, and because the overwhelming majority of international judges are trained in the West, ILS have scant, if any, opportunity to embed elements of sharia into these mechanisms.58 Judge Abdulqawi Yusuf of the ICJ addressed this issue directly by stating that “in the 19th century, European states, which happened to be the most powerful nations during that period of human history, formed themselves into a sort of club of ‘founders’ which arrogated to itself the right to admit other members to the family of nations to whom international law would be applicable.”59 Islamic influences are simply nonexistent in arbitra-tion and adjudication, both of which have been institutionally expressed almost exclusively in values inscribed within the Western legal traditions.60 As I previ-ously explained, departures from the standard procedure, an option potentially attractive to non- Western states facing international adjudication, are increas-ingly rare.61 This fact, I argue, may be troublesome to certain ILS, which upon attempting to settle their disputes via the PCA, ITLOS, or the ICJ, must ac-cept these institutions’ existing nonnegotiable procedures.62 The Western legal training permeates almost all aspects associated with international adjudicators. From one of my interviews with a state advocate, I received the impression that the presence of Islamic legal arguments in international courts or arbitration tribunals depends almost entirely on the personal interests of judges or arbiters who might simply be curious about sharia. In his words,

57 Mitchell and Powell 2011, 74. See also Powell and Wiegand 2010.58 For a broad analysis of Eurocentrism of international law, see Anghie 2005; and Hanqin 2012.59 Yusuf 2013, 684.60 The “universalist seeds” planted in the Statute of the Permanent Court of International Justice

(PCIJ) were not substantive enough to ensure full and instant participation of non- Western legal sys-tems (see Yusuf 2013, 685). 61 Rosenne 2003. Since arbitration and adjudication are initiated when the disputants’ aim is a binding decision according to international law, adherence to a well- laid- out procedure is critical. 62 In the case of the ICJ, states can limit the Court’s jurisdiction via reservations. Nevertheless, the Court’s basic procedures are nonnegotiable. I address the topic of reservations in the context of the ICJ in chapter 6.



Lawyers like me are Western educated, but my interest in Islamic law is not because of my education but purely because of my personal interests. I have a huge library in Islamic law as if I am a geek whereas other lawyers have no idea about those things. It’s not because it’s their fault, but because they are brought up in modern legal systems. They talk about it as Islamic law provides answers since they have been brought up to accept that there is Quran as the word of Allah and ha-dith. They get the basics but they don’t know the details.63

I return to this point in much greater detail in the empirical chapters, es-pecially in chapter 6, devoted to the Islamic milieu’s view of the International Court of Justice. In addition to the problem of uncertainty, however, there is, in the particular case of ILS, a further factor that fundamentally shapes these states’ venue choices: the nature of social interaction in dispute resolution. To ILS, the most preferred form of social interaction in the international sphere is characterized by four distinct features: a unique logic of justice, nonconfronta-tional dispute settlement, collective embeddedness of the third party, and in-corporation of Islamic principles in the resolution process.64 Uncertainty can be mitigated. For instance, Western lawyers can be hired as state representatives in arbitration or adjudication proceedings; their knowledge of substantive inter-national law, as well as their familiarity with procedure in international courts, certainly attenuates ILS’ uneasiness with Western legal principles. And indeed, ILS that end up at the International Court of Justice, or any other international courts or arbitration tribunals, tend to seek legal counsel from Western lawyers with extensive international experience. Even so, I argue, the fact remains that ILS simply prefer to settle their disputes in a nonconfrontational manner owing to intrinsic cultural norms of dispute resolution. In other words, even if drawing on expertise from Western lawyers helps reduce ILS’ uncertainty, it does not change the norms of peaceful resolution that are deeply embedded in the Islamic legal tradition.

The next section explores the four aforementioned characteristics of ILS’ most preferred form of social interaction. International non- binding third- party venues such as mediation and conciliation allow ILS to fulfill their preferences regarding the nature of social interaction. In a way, these methods enable ILS to

63 Author interview with an anonymous state advocate, conducted in Brussels, Belgium, July 4, 2014. 64 To reiterate the point I made in chapter 2, I recognize the interplay of Islamic law with the broader Islamic culture in this context. In fact, as Dupret (2007, 79) adequately put it, “Interpretive theory fundamentally conceives of law in holistic terms, that is, as one of the many reverberations of a larger explaining principle: culture.”



customize international law to fit their needs. International legal mechanisms, by contrast, are unlikely to bear out ILS’ expectations about how dispute settle-ment should be carried out. Yet, as I show in what follows, preferences of all ILS toward international peaceful resolution venues are not constant across space and time, but depend on the balance between Islamic law and secular law in the domestic legal system in an Islamic law state. As I describe in chapter 2, the ILS category rests on the premise of capturing unity in the face of diversity. It is the unique amalgamation of secular law and Islamic law that generates a normative framework for each of the ILS.

Islamic Dispute Resolution

One of the most powerful metaphors that you can apply when you are talking about Islam is the idea that everything is ordained by God, and, to that extent, human agency is really limited. People will always find a way of ensuring that problems are adequately resolved in a way and manner that helps the community grow.

— Bishop Matthew Hassan Kukah, Catholic Diocese of Sokoto, Nigeria65

Unique Logic of Justice

As Hashmi writes, in the context of relations between states, “True peace (salam) is therefore not merely an absence of war; it is the elimination of the grounds for strife or conflict, and the resulting waste and corruption (fasad) they create. Peace, not war or violence, is God’s true purpose for humanity (2:208).”66 When asked about the significance of justice in Islamic law, the ICJ’s vice president Awn Shawkat Al- Khasawneh told me the story, dating back to the era of classical Islam, of a man who asked his friend where he should live. The friend’s advice was to live in a city where there is a running river and a just judge. According to Judge Al- Khasawneh, this story “really indicates the centrality of justice in the religion of Islam whereas in Christianity, the idea of love is the underlying theme.”67 Interestingly, it was the notion of justice that was at the center of Jordanian King Abdullah II’s 2006 speech at the International Court of Justice: “Indeed, for Muslims, global good citizenship— justice and integrity in

65 Author interview with Bishop Matthew Hassan Kukah, Nigeria, conducted in Notre Dame, Indiana, October 29, 2015.

66 Hashmi 2002a, 197. 67 Author interview with Judge Awn Shawkat Al- Khasawneh, conducted in Amman, Jordan, February 18, 2015.



the dealings among people, regardless of faith, race or nationality— is a corner-stone of a righteous life. In the Holy Quran it is written: ‘Be just— that is closer to piety.’ ”68 The notion of justice has repeatedly come up in my conversations with Islamic law scholars. One of my interviewees, Radwan Ziadeh, suggested that “even Islam in the Quran puts justice exactly on the level of belief, which is the highest level. In Islam, if you are a nonbeliever, you are non- Muslim. That means if you don’t impose the justice system, you are a nonbeliever, you are not Muslim. This is very close to my heart, the argument of justice in Islam and how it is important.”69

Administration of justice lies at the heart of traditional Islamic court proce-dure. A qadi, Islamic law judge, operates within the all- encompassing space of Islamic law, where ethics, culture, morals, and societal harmony are intertwined. As Imam Ibrahim Amin explained to me, “In an Islamic court of law, the em-phasis on moral duty, on moral uprightness, moral correctness is a fundamental part of the legal process.”70 In comparison with other legal traditions, Islamic procedural law is least formalized, and quite flexible.71 This lack of formalism manifests itself in the role of the qadi, prerogatives of the parties, and the en-tire court proceedings. The primary goal of the judge is to enable the aggrieved parties to negotiate their own arrangements. Thus, the disputants’ individual voices are not suppressed.72 Rosen writes that “just as in Islamic architecture, music, mathematics, and social organization, the law forms an organizing framework, not a governing force, and harmony lies in allowing such lines of individual- centered affiliation to work themselves out by the free arrangement of units according to local circumstance.”73 In an important way, Islamic law is quite different from the Western legal traditions: it finds regularity and consist-ency not in the application of the same laws to similar circumstances, but in “the constancy of the mode of analysis.”74 The mode of analysis refers in this context to certain procedures deployed during a trial, such as reliance on trustworthy

68 In the same speech, the king also commented on the inherent link between domestic and inter-national principles of peaceful resolution: “Islamic civilisation upheld the primacy of settling disputes by law, not force— among nations as among people.” “Remarks by His Majesty King Abdullah II at the International Court of Justice, Royal Hashemite Court,” King Abdullah II Official Website, October 26, 2006. 69 Author interview with Dr. Radwan Ziadeh, founder of the Damascus Center for Human Rights Studies and a Syrian human rights activist, conducted in Notre Dame, Indiana, January 22, 2016. 70 Author interview with Imam Ibrahim Amin, Oxford Centre for Islamic Studies, Oxford, UK, May 16, 2016.

71 Mitchell and Powell 2011; Glenn 2014.72 Hallaq 2009a, 61.73 Rosen 2000, 33.74 Rosen 2000, 36.



witnesses as well as emphasis on morals and communal interests. Careful yet flexible stepwise progression through the trial constitutes, according to Islamic law, the only way to ensure just rulings. As a result, two qadis may reach different conclusions in similar cases because they may be dealing with very different disputants.75

Nonconfrontational Dispute Resolution

A qadi is a guide in the parties’ efforts at finding common ground.76 During the court proceedings, reconciliation is given utmost priority to eradicate any source of disagreement between the Muslim brethren. According to the Islamic faith, formal adjudication may “breed hatred between parties while reconcilia-tion brings them together.”77 The main emphasis is placed on oral evidence— a tradition established in the beginning of the ninth century when the institution of a witness grew into established practice.78 Face- to- face interaction between the qadi and the parties is the bedrock of Islamic dispute resolution, an inter-action which, as I noted earlier in the chapter, is almost entirely absent in the proceedings at the ICJ. As Hallaq writes, “In the Islamic system of justice no no-ticeable gulf existed between the court as a legal institution and the consumers of law, however economically impoverished or educationally disadvantaged the latter might be.”79 In this context, Glenn adds that in the search for truth and the revealed law, parties “are rightly seen as partners of the qadi in the law- finding process.”80 Accordingly, the role of lawyers is much smaller than in the

75 Achieving justice in the context of a particular case may require application of different procedures and techniques from those required in another case. 76 Historically, qadis had no specific place or a building where dispute resolution would take place. Thus there was no equivalent of a court building. Instead, qadis heard disputes in various places such as mosques, a qadi’s home, and in public places such as streets or marketplaces (Hallaq 2005, 59).

77 Iqbal 2001, 1040. 78 In fact, oral testimony became the cornerstone of Islamic law’s evidentiary system, superseding in importance written documents, which if to be used in the court often had to be validated by wit-ness attestation (see Hallaq 2005, 61). The proceedings in a sharia court are to follow a hadith that speaks of importance of oral oaths: “Producing evidence is the obligation of the one who asserts, and the oath is the obligation of the one who denies.” According to Othman (2007, 65), this tradition stipulates that a person must prove an assertion by providing appropriate evidence— preferably two Muslim men of good character. In contrast, to refute an assertion, “one must swear an exculpatory oath.” Rosen (2000, 73) writes that in an Islamic court, “all evidence is regarded as essentially oral in nature.”

79 Hallaq 2009a, 63.80 Glenn 2014, 187. Bowen (2003, 210) writes that in the context of divorce cases in Indonesia,

“judges do at least as much social and religious counseling as they do fact- finding and statute- applying.”



West.81 Of course, with the influence of Western- style litigation techniques, lawyers have become more popular in the Islamic milieu and many courts are gradually moving toward reliance on written documents and legal representa-tion. However, attorneys are mostly used in secular courts, while in sharia courts the disputants often speak for themselves. Even in cases when lawyers are used, the qadi frequently communicates directly with the disputants, calling each party up to the judicial bench for occasional clarification or face- to- face interaction.82

While European and American litigation models are inherently based on a winner/ loser dichotomy as well as legalistic and rational argumentation, the Islamic concept of settlement relies on myriad extralegal values such as com-munal benefits, societal needs, and religion. In the West, these notions lie out-side the realm of law and legality and do not fit neatly into the state’s conception of a legitimate and unbiased dispute resolution process. In a sense, the Islamic way of conflict management is more receptive to intangible outcomes, outcomes that go beyond individual rights, gains or losses, outcomes that affect the larger community.83 As Aida Othman explained to me,

And if you assert a litigious culture in any way instead of going to the leader of the village and getting to sort out things for them, it just goes against the grain of the community. You will not be able to achieve this communal atmosphere: these people have weddings to organize, funerals to deal with together. Going to court cannot smooth out disagreements. You cannot have smooth operations through life when somebody goes and starts an action at the high court in the nearest town. It just does not work that way.84

Although a preference for face- to- face interactions at the local level is perhaps characteristic of all small communities, the avoidance of legal proceedings is much more deeply ingrained in Islam than it is in the West. Whereas the Western model of adjudication centers on determining the truth, applying the law, and allowing events to unfold accordingly, a qadi’s main goal is “to get people back into working relationships— contentious as they may be— rather than to solve

81 In Saudi Arabia, according to a report of the Commission on Human Rights (2003), Islamic judges consider lawyers and other interlocutors as obstruction to case settlement. At times, disputants are represented by a male family member (van Eijk 2010, 162). 82 Rosen (2000, 105) observes that in Morocco, even in cases where lawyers are present in the courtroom, it is almost impossible to restrain the disputants from contributing personal insights and arguments to the case, and “not infrequently the lawyer must effectively stand to the side while the judge and litigants go at it.”

83 See Abou El Fadl 2003a.84 Author interview with Dr. Aida Othman, August 28 2015. See note 1.



matters in a way that ignores future ties.”85 Thus, forbearance, resolution, and be-nevolence are at the forefront of conflict settlement.86 Accordingly, the concept of a trial as a method of finding the ultimate truth is partially absent in Islamic law. In the name of protecting the collective interests, justice may be “tainted and subverted by the imperfect nature of man.”87

An old Islamic maxim teaches al- Sulh seyed al- ahkam, mediation/ reconcilia-tion is the superior rule.88 Sulh, a concept that undergirds the Islamic paradigm of dispute resolution, roughly translates to compromise of action, conciliation, or an amicable settlement.89 Informality was deeply engrained in the fabric of Arab tribal societies and certainly predates the rise of Islam. A ruler, a healer, or an influen-tial nobleman often took on the role of intermediary in intratribal disagreements.90 From a practical standpoint, amicable settlement was necessary for tribe survival in the harsh realities of nomadic desert life: earnest settlement prevented disputes from turning into warfare. Imposition of a binding judgment could exacerbate the contention.91 The Quran embraces this philosophy of reconciliation: “The recom-pense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from God: For God loveth not those who do wrong.”92 In another place, the Quran states that “There is no blame on them if they arrange an amicable settlement between themselves, and such settlement is best.”93 Sulh was the Prophet Muhammad’s favored method of dispute resolution. In fact, Muhammad personally mediated conflicts between his close followers and between clan members. 94

Over time, Islamic jurists introduced formal classifications of the various ways one can settle a dispute. Eventually, three separate categories emerged: sulh, an informal compromise between the parties, usually with the help of an interme-diary; tahkim, arbitration by a third party knowledgeable in Islamic law; and qada, adjudication by qadi based on sharia.95 Unlike sulh, an arbitrator and a qadi

85 Rosen 2000, 41.86 See Abou El Fadl 2003a.87 Othman 2007, 69.88 Author interview with Judge Awn Shawkat Al- Khasawneh, February 18, 2015.89 Othman 2007.90 In the process of sulh, the parties are treated as “enmeshed in webs of relationships with family

and community” (Philpott 2012, 161). The Western- based approaches treat each disputant as an independent party.

91 Black, Esmaeili, and Hosen 2013, 156.92 Quran, Sura 42, verse 40. See Bassiouni 2014.93 Quran, Sura 4, verse 128.94 In sunna, there are several hadiths recording Muhammad’s partiality toward mediation, concil-

iation, and true compromise. 95 See Othman 2007, 68. There is a disagreement in the scholarship with regard to the meaning and substance of each of these three categories. Also, schools of Islamic jurisprudence disagree about



have the power to impose their decision upon the disputants and play a more in-stitutionalized role in the proceedings. Both tahkim and qada are based on the parties subjecting themselves to a verdict of an intermediary who is knowledge-able in Islamic law. Yet, sulh can be incorporated within the framework of adju-dication. A judge, who is to embrace his role as a mediator and a conciliator, can encourage the parties to mediate before the commencement of the trial.

A panoramic look at ILS’ domestic legal systems reveals that sulh and in-formal dispute resolution have been directly embraced in the modern Islamic milieu. Of course, recourse to these out- of- court procedures— which for the most part take the form of traditional conciliation at the communal or tribal level— varies across time, communities, and the specific circumstances of each case. These alternative venues acquire importance when official state institutions lack either the ability or the willingness to deal with a set of disputes. By way of illustration, the collapse of state institutions during the protracted Lebanese civil war (1975– 1990) generated a void that was gradually patched up by informal dispute resolution procedures and religious courts.96 However, a breakdown of state institutions is not the only nor the main reason for the existence of informal dispute resolution. Quite the opposite: even in ILS with well- functioning and strong court systems, customary ways of resolving interpersonal contentions are an important part of the legal landscape. In fact, in many ILS the informal methods constitute the preferred way of settlement. This is especially the case in the rural areas. In a crucial way, informality embraces “the moral fellowship of the rural community” firmly engrained in the spirit of Islamic law.97 Additionally, resolving quarrels outside the courtroom is cheaper, speedier, and quite effective in furthering Islamic law’s emphasis on the reinstatement of communal harmony.

Illuminating examples of informal dispute resolution include jirga and shura in Afghanistan, both of which embrace restorative informal justice and societal harmony. Shura is a local gathering or a local court broadly understood, and jirga is an ad hoc council made up of local elders and important male figures who make consultative and often final decisions about a wide range of issues.98 Similarly, in rural areas of Sudan, people frequently resort to chiefs and the elders of their communities for informal dispute resolutions. Local customs and norms are the

the extent of sulh’s role in a courtroom. Importantly, as Othman (2007, 70) writes, “sulh” has two distinct meanings: it is a method of dispute settlement (the other two categories being tahkim and qada), but it can also mean the palpable outcome of the dispute resolution process— an agreement that stipulates the terms of the settlement.

96 Cohen 2001, 38.97 Cohen 2001, 39.98 Yassari and Saboory 2010.



basis of settlement decisions.99 Informal dispute resolution on the local level, with its focus on prevention and communal harmony, predominates within the legal landscape of Brunei. As Black suggests, “with mediation, the people of Brunei have long established culturally preferred means of settling disputes and for reducing conflict that utilize informal localized forms of negotiation and mediation. These continue to be preferred over the exported western versions of the ADR movement.”100 Likewise in Oman, reconciliation committees help the people settle their disagreements, a process that is strongly anchored in the Ibadi ideology of forgiveness, forbearance, and patience. In fact, these forums are open not only to Omani nationals or Muslims, but also to residents of all religions and all nationalities. Considered “a revival of the cultural heritage of Oman,” the reconciliation committees have greatly reduced the burden placed on Omani state courts.101 Most conflicts in Jordan’s nomadic and semi- nomadic tribes are settled via a tribal mediation system that is based on consensus, concil-iation, or, alternatively, arbitration. The process of resolution, based on restoring intertribal relationships, is administered under the guidance of respected elders and notables of the community.102

In several ILS, mediation between disputants is encouraged officially by the courts or constitutes a prerequisite for judicial proceedings.103 For instance, the Malaysian 2001 Shariah Civil Procedure obliges the disputants to first at-tempt resolution under the guidance of professionally trained mediators or sulh officers who conduct the sulh sessions in accordance with Quranic prin-ciples.104 Mediation, specifically sulh, is repeatedly applied in Malaysia in the context of banking and labor disputes, as well as disputes over civil and family matters. Lebanon and Tunisia, despite their less comprehensive official commit-ment to Islamic law, still incorporate sharia and informal third- party procedures in familial and other types of civil disputes. Finally, in Morocco, the traditional justice system and community- sponsored conciliation in rural areas contribute greatly to dispute resolution. The uniqueness of Islamic attitudes toward conflict

99 Because of their swiftness, these resolution forums are employed in about 80 percent of cases (Köndgen 2010).

100 Black 2001, 306. 101 Mohammad Fahmi Rajab, “Reconciliation Panels in Oman Help Cut Courts’ Burden,” Times of Oman, July 10, 2015, http:// timesofoman.com/ article/ 63488/ Oman/ Government/ Omans- reconciliation- committees- resolved- cases- lessesn- courts- burden.

102 See Furr and Al- Serhan 2008.103 In Morocco, mediation in family courts was institutionalized in 2007. The Jordanian Mediation

Law introduced in 2006 provides for mediation as an alternative to litigation. 104 See Othman 2007. Also, the Ottoman Civil Code, Majalla, stipulated that “sulh is a con-tract removing a dispute by consent. And it becomes a concluded contract by offer and acceptance” (Article 1531).



resolution can be attributed to the Quranic tenets as well as the pre- Islamic cul-ture that is stamped on the Quran.

Collective Embeddedness of the Third Party

As a general rule, “the preferred ‘third party’ in the Arab- Islamic approach is an unbiased insider with ongoing connections to the major disputants as well as a strong sense of the common good and standing within the com-munity.”105 In the Western legal culture, an intermediary is to be unbiased, neutral, and highly trained. Additionally, the secular philosophy of litigation teaches that appropriate procedures employed during the resolution process legitimize the settlement. Islam uses a different metric to determine who is an appropriate intermediary and what kind of process is considered legitimate. According to Abu- Nimer, “the legitimacy of conflict resolution processes and third- party intervention stems from a negotiator’s religious, social, and cul-tural rank. Age, gender, class, or tribal affiliation are often more important than legal training or other formal education credentials.”106 It is the position of the intermediary within the community that legitimizes the process of set-tlement. Historically, it was the strength of a qadi’s ties to the locals and not the ruler’s support that gave the judge authority. Such a strong bond with the community explains why some judges retained a portion of their nonjudicial functions, including taking care of the property of absentees, leading public prayers, and supervising charitable trusts.107 The qadi’s relationship to the disputants is thus fundamentally grounded in a helper/ help- seekers formula, which sharply contrasts with Western notions of centrally administered jus-tice.108 As Hallaq notes, “The qadi himself was typically a creature of the cul-ture in which he adjudicated disputes.”109 Of course, with time the position of the office of a qadi has evolved to become more official and limited to local dispute resolution.

105 Irani and Funk 1998, 63. According to Qamar- ul Huda (2010, xix), “Part of what makes Islamic peacebuilding efforts unique are the processes by which their principles are applied. For ex-ample, Islamic efforts to create peace use a religious judge (qadi) to rely upon established guidelines in Islamic law (shari’ah). The process of mediation, arbitration, and reconciliation (sulh) consists of the conflicting parties agreeing on a process of resolving a dispute with a third- party mediator, who will ensure that all parties are satisfied by the outcomes.”

106 Abu- Nimer 2010, 74– 75107 Hallaq 2005, 97– 99.108 Sonbol 2003, 241.109 Hallaq 2009a, 61. Before the eighth century, in addition to presiding over disputes, qadis had

other jobs— oftentimes manual— that solidified their embeddedness in the community.



Islamic Principles in the Resolution Process

Hallaq writes that “the Muslim court thus was not only a legal forum but also an anthropological, social, and moral site.”110 Traditional Islamic dispute res-olution brings into conversation not only Quranic principles, but also histor-ical examples and occurrences from Muhammad’s life.111 According to Imam Ibrahim Amin, “In Islam, even in a purely legal environment, moral conscious-ness is tremendously important.”112 Only decisions given within the limits of God’s will, as expressed in sharia, are considered beneficial to the parties. A judg-ment that is contrary to Islamic law “cannot change the status of the parties in the eyes of God.”113 In an important way, Islamic courts are responsible for making sure that believers follow practices enshrined in the Quran. Qadi are guardians who watch over the Islamic community so that as a whole it remains “a moral body in the eyes of God.”114 The obligation to settle disputes within parameters of the sacred law stems from teachings of the Quran: “We have revealed unto you the Book with the Truth, confirming whatever Scripture was before it. . . . So judge between them by what God had revealed, and do not follow their desires away from the Truth . . . for We have made for each of you a law and a nor-mative way to follow. If God had willed, He would have made all of you one community.”115 This passage contrasts obligations that bind Christians, Jews, and Muslims, conveying the message that it was God’s will to create three dis-tinct communities with three distinct sets of rules.116 Each community is to be governed by its own laws. It is God’s revealed will for Muslims to judge by what was revealed to them, because there is no other being— other than God— that could render a better judgment in any dispute.117

ILS and International Peaceful Resolution Methods

One of my interviewees, Omar Rifai, explained to me, “Through the court you are talking to an enemy. When you are talking directly, it could be a brother or a

110 Hallaq 2013, 58.111 Abu- Nimer 2010, 74.112 Author interview with Imam Ibrahim Amin, Oxford Centre for Islamic Studies, Oxford, UK,

May 16, 2016.113 Glenn 2014, 188.114 Rosen 2000, 35.115 Quran, Sura 5, verse 48.116 This passage can, arguably, be interpreted to include other religions as well.117 See, for example, Quran, Sura 2, verse 213, or Sura 24, verse 48.



cousin, but when you resort to the court, it means you have given up on finding a peaceful solution or a solution between friends or brothers.”118 This statement describes relations between individuals as well as collectivities— ILS. Even though Islamic law and international law put a premium on peaceful resolution of disputes, each of these legal systems has a different conception of this process. On the individual level, people who carry on the Islamic legal tradition simply embrace unique values promoted by Islam. In the words of Bowen, “People in other societies, or in new versions of Euro- American societies, might weigh values in different ways, for example, making autonomy and the capacity to form an idea of the good secondary to a proper understanding of God, or to the overall welfare of the community.”119 These values, as I explain in what follows, translate into ILS’ preferences. Islamic norms of dispute resolution match in-ternational non- binding third- party methods: mediation and conciliation. The resemblance manifests itself in logic, procedure, and goals of settlement. In a fundamental way, mediation and conciliation entail ongoing dialogue between the disputants and the intermediary. The parties themselves have a substantial freedom of action within the general framework of these mechanisms. For in-stance, conciliation under international law has been defined as “intervention in the settlement of an international dispute by a body having no political authority of its own, but enjoying the confidence of the parties to the dispute, with the task of investigating every aspect of the dispute and of proposing a solution which is not binding on the parties.”120 Disputants enter into this process prepared to ad-just their interests to find a mutually acceptable solution. The same holds for me-diation. As Goertz et al. argue, “Mediators have the freedom to offer suggestions, construct solutions, or change the payoffs (through use of selective incentives or punishments) for alternative outcomes.”121

In contrast to international legal mechanisms, arbitration and adjudication, the settlement proposal offered by a mediator or a conciliator does not take the disputants by surprise, since it flows naturally from the entire resolution process.122 Importantly, both parties can be satisfied with the resolution pro-cess because there is no clear winner and no clear loser. Such a philosophy of settlement appeals to states of the Islamic milieu. According to Alhinai, the principle of “no- winner- no- loser” is embedded deeply in Arabic or, speaking

118 Author interview with Professor Omar Rifai, Hashemite Kingdom of Jordan ambassador to Israel, Italy, Egypt, secretary- general of the Ministry of Foreign Affairs, permanent representative to the Arab League, conducted in Amman, Jordan, February 19, 2015. 119 Bowen 2003, 263. For an excellent discussion of Islamic approaches to conflict resolution, see Abou El Fadl 2003a.

120 Cot 1972, 9.121 Goertz, Diehl, and Balas 2016, 172.122 Merrills 2017, 86.



more broadly, Islamic culture.123 At times, especially in high- stakes disputes, the non- binding third- party methods can prove useful in offering step- by- step solutions, solutions that address different stages of an ongoing conten-tion. Such flexibility is often unattainable in legal proceedings. It is also in the context of mediation and conciliation that personal qualities and repu-tation of an intermediary matter most.124 While an international court or an arbitral panel is bound by the confines of law, mediation and conciliation go beyond the realm of the letter of the law.125 Here, an equitable and workable solution is sought. As the Jan Mayen conciliation commission declared, “the Conciliation Commission shall not act as a court of law. Its function is to make recommendations to the two governments which in the unanimous opinion of the Commission will lead to acceptable and equitable solution of the problems involved.”126 If a dispute centers on a question of facts, employing international law may be unnecessary.

In a manner reminiscent of sulh, the personal traits, authority, and prestige of an intermediary in all non- binding third- party methods legitimize the process and terms of settlement. For example, Algeria, a neutral state, was an ideal me-diator in the dispute between Iran and Iraq over their border precisely because of the common Islamic heritage of all parties involved.127 Algeria was perceived as the unbiased insider with a considerable stake in the welfare of the Muslim umma. In a remarkable way, there exists an important point of connection be-tween international mediation/ conciliation and the court proceedings directed by a qadi in the domestic context. In both, much emphasis is placed on the intermediary’s standing in the community. Glenn argues that in the qadi system, “there is also something reminiscent of modern case management, pre- trial con-ferences, and even obligatory mediation.”128 Besides, mediation and conciliation rest on the assumption that each case is unique and may require different terms of resolution— a premise of qadi justice.

123 Alhinai 2004, 77. 124 My argument that flexibility of the non- binding third- party methods appeals to ILS relates well to arguments advanced by Pelc (2016), who analyzes the role of flexibility in international law. Although Pelc’s arguments are advanced mainly in the context of international trade regime, his ob-servation that flexibility may actually allow for stronger commitments seems to accurately describe the relation between the Islamic milieu and international venues for dispute resolution.

125 This is true with the caveat that international courts and arbitration tribunals may rule ac-cording to principles of equity if so desired by the parties. Such situations, however, are very rare. 126 Conciliation Commission on the Continental Shelf area between Iceland and Jan Mayen: Report and recommendations to the governments of Iceland and Norway, decision of June 1981.

127 Merrills 2017, 28.128 Glenn 2014, 188.



Characteristics of international non- binding third- party methods, especially their informal character and the disputants’ ability to choose the third party, make them attractive to ILS. These methods, reminiscent of Islamic sulh, pro-mote reconciliation through flexible out- of- court procedures and enable ILS to realize their preferences regarding the nature of social interaction. The disputants may formulate a just solution in terms that lie outside the realm of law, such as reparations or the restoration of friendly interstate relationships.129 Additionally, the Islamic community may be engaged in the resolution process via the ap-pointment of an Islamic mediator or a conciliator. In such a case, principles of Islamic law may be employed as the basis for settlement. Whereas adjudication constitutes an intrinsic part of the Western culture reflected in international law, it takes a back seat in Islam.130 The legal mechanisms adhere closely to interna-tional law, are most formal, rely on a sharp distinction between law and religion, and are unlikely to consider Islamic law as a basis for settlement.

In chapter 6, I demonstrate, in the context of the ICJ, that when international legalized venues refer to Islamic law, they usually face intense criticism from many international legal scholars.131 The ICJ rarely mentions or in any way considers Islamic law as a meaningful source of ILS’ international obligations. More gener-ally, there is definite pushback against attempts to give sources other than inter-national law or Western legal traditions any authority over interstate interactions for fear of muddying the secular/ religious divide. Thus, of all peaceful resolu-tion venues, negotiations and non- binding third- party methods provide those in which Islamic principles could be incorporated. These mechanisms allow ILS to mitigate, if not altogether avoid, the sometimes unwanted influence of Westernized international law.

In practice, ILS use the international non- binding third- party methods quite often. Mediation and conciliation frequently seem to be the forums of choice not only in the context of disputes within the Islamic milieu, but also in ILS’ disputes with non- ILS. A prime example of the latter is the diplomatic hostages dispute between the United States and Iran. In 1979, the US embassy building in Tehran was attacked by several hundred armed revolutionaries, supporters of Ayatollah Khomeini. The aggressors declared that their hostages had com-mitted espionage. Shortly thereafter, the Revolutionary Council and Khomeini embraced the anti- US rhetoric. The United States adopted diplomatic and ec-onomic sanctions against Iran, and the international community issued many

129 Philpott 2012. 130 Interestingly, Sir Robert Jennings, renowned scholar and judge of the ICJ, believed that “going to court in international law should be considered, as in municipal law, as a banal routine act” (Abi- Saab 2013, 328).

131 For an excellent discussion, see Khaliq 2013.



appeals for the release of the hostages. Yet, the hostages were not released.132 On November 29, 1979, the United States filed the case in the ICJ. Iran refused to take part in the litigation, declaring that the dispute dealt with an issue “within the national sovereignty of Iran,” and that international law constitutes a tool of the powerful West.133 The ICJ judgment issued in May 1980 declared that Iran was in violation of international law and must release the hostages, restore the premises, and make reparations to the United States. However, Iran did not re-lease the hostages until January 1981, and the release was not in any way driven by the ICJ’s ruling on the matter, but by the Algiers Accords, a 1981 amicable resolution steered by Algeria.134 Algeria provided good offices and proved to be an effective mediator: it maintained strong trade connections with the United States, and as one of the ILS, it was able to keep Iran’s trust. Though the Algerian negotiators were Sunni and Iran’s were Shia, the fact that they were Muslim was a critical factor in Iran’s move to settle.135 Warren Christopher, who negotiated on behalf of the United States, noted that “the Algerians served an indispensable function in interpreting two widely disparate cultures and reasoning processes to each other.”136

Application of Islamic Law to Collectivities: The Individual– Collective Leap

One of my interviewees, when asked whether rules of the Quran that pertain to individuals apply also to states, answered, “Yes, because that’s based on the Quran.” 137 Indeed, while theorizing about ILS’ preferences toward international peaceful resolution venues, an important caveat warrants further discussion. How does the Islamic philosophy of sulh, brotherly settlement and reconcilia-tion, “scale up” to the state level? Specifically, is there a theoretical link between individual- level creeds of sharia and state- level rules of behavior? In addressing this issue of how to conceptualize sharia’s application to ILS, I focus on three interrelated points: sharia’s applicability to collectivities; the citizens’ expec-tations in ILS about sharia’s role in public life; and the nature of Islam as an evolving legal tradition.

132 Schulte 2004, 166.133 Iran’s letter to the ICJ, dated March 16, 1980.134 Schulte 2004, 171.135 Greenberg 1984, 278. See also Powell 2016.136 Farber 2005, 181.137 Author interview with Professor Omar Rifai, Amman, Jordan, February 19, 2015.



Sharia’s Applicability to Collectivities

In sharia, many individual- level rules, via the process of extrapolation, apply to collectivities such as tribes, nations, and states.138 Bassiouni explains this point well: “Islam regulates on a holistic basis the interpersonal and collective con-duct of humans on earth, as well as relations between individuals and God. Thus, it applies to life in this world and in the hereafter. Justice is referred to in the Qur’ān more than twenty times, and is the cornerstone of this holistic ap-proach. It includes: interpersonal, intersocial, and interstate relations, relations between the Muslim ummah and non- Muslim states, and internal governance of the ummah.”139 Islamic international law, siyar, and domestic law draw their authority from the same legal sources, the Quran and sunna, and there is no separation between these two legal domains.140 As Khadduri notes about siyar, “an Islamic law of nations does not exist as a separate system in the sense that modern municipal (national) law and international law, based on different sources and maintained by different sanctions, are distinct from one another.”141 Though Quranic prescriptions may speak of individuals, they teach a specific logic through which sharia may apply to collectivities. By their very nature, creeds of Islamic law govern practices that unfold amidst and are entwined in all spheres of human activity, including institutionalized governance, coopera-tion, and conflict.142 Theoretically as well as practically, actions of collectivities cannot be singled out from other aspects of human activity. Sharia is a com-prehensive code of human existence, and as Hashmi writes, “The issues of war and peace thus fall within the purview of divine legislation for humanity.”143 Abou El Fadl explains that “the concept of a Shari’ah- based society is further strengthened by a Qur’anic discourse that indicates that the mandate to live

138 One of the earliest Islamic treaties, the Constitution of Medina (AD 622), addressed inter-tribal collective peaceful resolution. This document, which spelled out relations between Muslims and other groups inhabiting the Medina area, established the Prophet Muhammad as the authority in all disputes. However, it is important to recognize that until the later nineteenth century, Islamic discourse has not focused on the concept of nation- state, but instead on non- state actors, such as the community, or the various modes of political and religious governance (see Scott 2010).

139 Bassiouni 2014, 22– 23. 140 See Bsoul 2008; Ford 1995; and Weeramantry 1988. Shaybani’s Introduction to the Law of Nations draws extensively on the Quran and the sunna, cites Traditions of the Prophet, and appeals to general principles and doctrines of Islam. In an important way, siyar was always an extension of Islamic jurisprudence as a whole.

141 Khadduri 1966, 6. See also Maududi 1975.142 See, for instance, Reese, Ruby and Pape (2017, 440) who demonstrate that the Islamic cal-

endar to some extent shapes and constrains other mechanisms driving violence in the Islamic milieu. See also Hassner (2007) who argues that traditional norms of Islamic law continue to shape tempo-rary Muslim understanding of what is just and unjust in the context of international conflict.

143 Hashmi 2002a, 196.


Th eor y o f Is lami c Peac e f ul R e s olut i on 153

according to the dictates of the Divine law is not only individual, but also collec-tive. This discourse often occurs in the context of addressing the threat of fitnah (severe tribulations) that might befall an unjust society. The Qur’an emphasizes that a society that does not abide by the commands of God, becomes ungrateful toward God, or that is overcome by large- scale injustice, runs the risk of Divine collective punishment.”144 One of my interviewees addressed this issue directly, arguing that rules regarding peace, justice, and the resolution of disputes “should dictate relationships between human beings in general, whether individually or collectively.”145

Moreover, Islamic international law is specifically addressed to Muslim collectivities and reveals Islam’s struggles to construct a justly ordered commu-nity of states. In the words of Khadduri, siyar since its beginning “was binding on territorial groups as well as individuals.”146 This reality is directly reflected in the very meaning of the term “siyar,” plural of “sira”: “the conduct of the state in its relationship with other communities.”147 From a moral standpoint, the appli-cation of Quranic injunctions against wrongdoing of all kinds is especially im-portant in the context of collectivities. As Hashmi argues, “When people form social units, they become all the more prone to disobey God’s laws through the obstinate persistence in wrongdoing caused by custom and social pressures.”148 Bassiouni echoes this point: “The protection of human dignity and the pur-suit of justice are entrusted to each and every Muslim, because every Muslim is deemed to be God’s trustee on earth. It is also entrusted to the collectivity, whether in the form of a Muslim state, the ummah, or a community of Muslims living in a non- Muslim state.”149 Speaking directly about inter- polity dispute res-olution, the Quran states that “if two groups of believers come to fight one an-other, promote peace between them.”150 There is another, deeper aspect to this broad appeal to peace, namely, the superiority of informal dispute resolution not only in the domestic sphere, but also in the international arena. For instance, in his treatment of Islamic international law, Shaybani talks about the usefulness of

144 Abou El Fadl 2003b, 217. 145 Author interview with Mohammed Al Qasimi, College of Law, United Arab Emirates University, Al- Ain, November 2013. 146 Khadduri 1966, 6. 147 Khadduri 1966, 39. Importantly, the Prophet Muhammad in the process of making decisions relied on the revelations he received from God including those affecting the day- to- day existence of Muslims, as individuals and as a community. 148 Hashmi 2002a, 197. 149 Bassiouni 2014, 101. 150 Quran, Sura 49, verse 9. For the use of Quranic verses in collective dispute resolution, see Abu- Nimer 2003.



sulh in the context of domestic disputes over ownership and marital disputes, and in the context of war.151

Granted, siyar as the appropriate conduct of Muslim rulers in interstate dealings has come under criticism as being out of date and failing to address con-temporary issues. Thus, some may question whether this branch of Islamic law is the guidebook for ILS’ global dealings. While these critiques address an impor-tant issue and have merit, several caveats should be brought up. As I explained earlier, the logic and spirit of Islamic law are to guide all aspects of behavior. Thus, while siyar’s scope might indeed be narrow, the reach of the Quran and sunna does not stop at ILS’ borders. Quite the opposite: there are many ways in which creeds of sharia engage state behavior. Abou El Fadl writes, “The Qur’an was revealed over a span of about twenty- one years, mostly in response to specific historical events. It is considered to be the fundamental source of Islamic law because Muslims believe it to be the revealed, literal word of God. Thus it carries considerable normative weight in all areas of life, including the peaceful resolu-tion of disputes.”152 Sachedina makes a conceptual link between an individual’s beliefs and collective behavior: “When law and faith merge in an individual’s life, they create a sense of security and integrity about the great responsibility of pursuing justice for its own sake. And when this sense of security and integrity is projected to the collective life of the community, it conduces to social harmony. Peace, then, is belief translated into action.”153

In practice, there is a multiplicity of ways and communication paths through which individual- level arguments make their way up to the state level and supra-national level. For instance, several regional organizations formed by ILS refer to Islam as a significant factor, extending the reach of sharia beyond the domestic realm. These organizations reflect “the complex character of transnational Muslim politics, which has created a rather different normative global frame-work with Islamic points of reference.”154 One of the objectives of the Charter of the Organisation of Islamic Conference (OIC) is to “disseminate, promote and preserve the Islamic teachings and values based on moderation and tolerance, promote Islamic culture and safeguard Islamic heritage.”155 Similarly, the Arab Charter on Human Rights aspires to further “the eternal principles of fraternity, equality and tolerance among human beings consecrated by the noble Islamic

151 Othman 2007, 71.152 Abou El Fadl 2003a, 179.153 Sachedina 2001, 43– 44.154 Bowering (ed.) 2013, 258.155 Charter of the OIC, Article 1. 914, UNTS, 111. The Organisation of Islamic Conference

changed its name to the Organisation of Islamic Cooperation in 2011.



religion and the other divinely- revealed religions.156 The OIC Cairo Declaration on Human Rights in Islam contains perhaps the most extensive Islam- related content, highlighting the “civilizing and historical role of the Islamic Ummah.” The declaration draws a direct link between fundamental rights, universal free-doms, Islam, the Revealed Books of God, and the teachings of the Prophet Muhammad.157 Notably, Islamic law repeatedly appears in ILS’ arguments ad-vanced at international conflict management venues. For instance, in the context of territorial disputes, ILS have repeatedly used Quranic rules of land ownership to establish their sovereignty over territory. The ICJ Western Sahara Advisory Opinion and the Libya- Chad dispute constitute the most vivid examples.158 In these cases, the disputants resorted not only to collectivity- level Quranic verses referring to tribes, but also individual- level rules regarding land possession.159 I address this point in much greater detail in chapter 6, which takes a thorough look at the complexity of the Islamic milieu’s dealings with the ICJ.

ILS Citizens’ Expectations about Sharia’s Role in Public Life

Although Islamic ideals are practiced differently by different actors in ILS, the re-ality is that ILS’ Muslim citizens expect religion to play a role in all aspects of life, including domestic and international politics.160 As Hallaq writes, “To say that the overwhelming majority of modern Muslims wish for the Sharī’a to return in one form or another is to state what anyone with even a cursory knowledge of

156 The Arab Charter of Human Rights was adopted by the League of Arab States on September 15, 1994, and entered into force on March 15, 2008. 157 Cairo Declaration on Human Rights in Islam, August 5, 1990, UN GAOR, World Conference on Human Rights, 4th Session, Agenda Item 5, UN Doc. A/ CONF.157/ PC/ 62/ Add.18 (1993) [English translation]. 158 Western Sahara, ICJ advisory opinion of October 16 (1975), ICJ 12; Territorial Dispute (Libyan Arab Jamahiriya/ Chad), ICJ Judgment of February 3, 1994, ICJ Rep. 1994, 6.

159 Cravens 1998. 160 Emon 2012b. Yet, I agree with Hamoudi (2008) that it is important to take into consideration the evolution of Islamic law from a classical doctrine to modern times. As Hamoudi argues, Islamic law as practiced in the modern era is “largely the product of mediation among competing influences in Muslim society” (p. 469). The first force of influence is the “resistance against the dominant global economic and political order to create a separate Muslim polity with its own ethical and cultural norms” (p. 469). The second force of influence is “the need to engage the broader world, commer-cially and politically, in order to develop power and influence” (p. 469). It is important to note that at times the influence of classical Islamic thought on contemporary Islamic societies is indirect. As Hassner (2007, 134) writes, “common understandings of just and unjust behavior in war implicitly rest on chains of arguments, practices and institutions that can be traced to early Islamic scholars.” See also Reese, Ruby, and Pape (2017); and Toft and Zhukov (2015) for excellent analyses of the link between Islamic calendar/ holidays and violence.



world affairs would readily acknowledge.”161 Similarly, Arabi argues that sharia reaches deeply into the daily behavior of an average person in Muslim societies, and provides a real framework in modern countries that incorporate Islamic law into their official governance.162 These views are echoed by Otto, who writes that “for most Muslims, Islam indeed represents a major source of public mo-rale, virtue, rightness and self- respect.”163 Do ILS’ policymakers simply “check at the door” their personal commitment to Islam as they act on their plenipo-tentiary powers? After all, who is to say to a Muslim, whether a policymaker or an average person, that her/ his religion must be considered inferior to, for instance, territorial affiliation? The same can be said of a broader commitment to the Islamic legal, cultural, and social ways of resolving disputes. In the context of war, Hassner argues that “the traditions relating to the Prophet and Islamic just war theory underlie modern Muslim conceptions of what is just and unjust in war.” 164

Further illustrating the importance of Islamic values, the wave of recent uprisings and revolutions in several ILS has been subsequently followed by an upsurge of constitutional acts, constitutional amendments, and changes in law. These new laws have increasingly integrated Islam into governance systems, demonstrating that these societies did not want to embrace political systems that would sideline Muslim faith.165 Arguably, the “secularism versus Islamism” issue has not always been the sole focus of the political debate in Islamic societies since the 1980s. Rather, the underlying discourse behind recent po-litical movements in many ILS has centered on the question of what form of Islamic constitutionalism should be put in place to fulfill the vision of a “proper Islamic state” and who has the power to interpret what Islamic law actually is.166 But even before these recent events, majorities of ILS’ citizens, representing all societal segments, repeatedly declared that sharia should be a source of law in their countries, and voted for sharia- oriented political parties.167

161 Hallaq 2013, x.162 Arabi 2001.163 Otto 2007, 139.164 Hassner 2007, 133.165 Ahmed and Ginsburg 2014; Lombardi 2013.166 See Lombardi 2013. Interestingly, the popular perception in the West is that the issue of sec-

ular versus religious- based governance constitutes the crux of the Arab Spring. For example, an ar-ticle in The Economist, “The Secularists Have It” (2014), describes the outcome of Tunisia’s elections in its catchy title. Lombardi (2006, 7) makes the interesting point that “different factions have called on states to apply different theories. The result is a situation in which there is a broad desire for Islamization in the abstract, but violent disagreement about what form Islamization should take— disagreement that is rooted in very different ideas about how to interpret the sharī‛a.” 167 In fact, as Feldman (2008, 6) states “the ideal of the shari‘a invokes the core idea of law in terms that resonate deeply with the Islamic past.” According to Shakman Hurd (2008, 119), “Political Islam



Practically speaking, Islamic law constitutes a real consideration, one with far- reaching implications, for ILS policymakers as they make their decisions domes-tically as well as at the international level.168 This is the case even if we take into consideration that some political leaders may lack an in- depth understanding of Islam. They may also use Islamic rhetoric strategically or in an insincere way.169 But Islam’s religious teachings, however interpreted, have an impact on the preferences of many Muslims even if their countries’ leaders are not officially bound to share the same beliefs.170 Religious convictions of the people “are not suspended outside the mosque.”171 Thus, the expectation that the Islamic legal tradition transfers into the political sphere is simply supported by the rational, straightforward assumption of the majority of Muslim citizens.172 Actually, the core idea of secular governance is oft presumed objectionable to many Muslims,

is a modern language of politics that challenges, sometimes works outside of, and (occasionally) overturns fundamental assumptions about religion and politics that are embedded in the forms of Western secularism that emerged out of Latin Christendom.”

168 See Reese, Ruby, and Pape (2017) who argue that the Islamic calendar alters and constrains factors that drive political violence in Islamic societies (p. 440). See also Hassner 2007.

169 For a discussion of this issue, see Bassiouni 2014; and Platteau 2017.170 Salmi, Adib Majul, and Tanham 1998, 79.171 Bowering (ed.) 2013, 310.172 For an in- depth analysis of the differences between Muslims and non- Muslims on the in-

dividual level, see Fish (2011). Interestingly, Fish demonstrates that Muslims are “only slightly more inclined than Christians to hold that it would be good ‘if more people with strong religious beliefs held public office’ ” (p. 61). Nevertheless, his empirical analyses show that Muslims are more likely to reject atheism in the belief that “people ‘who do not believe in God are unfit for public office’ ” (p. 61). In light of Fish’s findings, it is crucial, however, to consider several points that reconcile Fish’s arguments with my arguments, as put forth in this chapter. First, the content and deeply religious nature of Islam, in particular the all- encompassing character of sharia, has important implications. A Muslim and a non- Muslim of equivalent “religiosity” may very well have divergent views with regard to the role of religion in state governance, both domestic and international. Second, Fish’s polling includes data from Muslims in non- ILS, and at the same time excludes several key ILS with large Muslim populations, such as Afghanistan, Iran, Indonesia, and Saudi Arabia. A recent survey by the Pew Research Center (Spring 2015) reveals that in many ILS, a considerable proportion of the population believe that the teachings of the Quran should influence the laws of their country. For instance, 78 percent of Pakistanis believe that Pakistan’s laws should strictly follow the creeds of sharia, and 16 percent believe that the laws should “follow values and principles of Islam, but not strictly follow.” In Jordan, these statistics are 54 percent and 38 percent, respectively, and in Malaysia 52 percent and 17 percent. Interestingly, in Indonesia, an Islamic law state in which secular legal institutions exert a large influence, 22 percent of the population claims that laws in their country should strictly follow the Quranic teachings, and 52 percent embrace the less stringent view, arguing that the laws should follow Islam’s values and principles, but not necessarily strictly follow (see Pew Research Center [website], April 27, 2016, http:// www.pewglobal.org/ 2016/ 04/ 27/ the- divide- over- islam- and- national- laws- in- the- muslim- world/ ).



despite the ruling elites’ aspirations.173 In the words of Bowen, “many Muslims argue that their religious texts provide a God- given set of political and social ideas, and do not see why they should be rejected in favor of liberal ideas. In many countries with large Muslim populations, these texts are one source of law.”174 As one of my interviewees aptly put it, “There would be those within the Muslim population who would want their country’s leader to implement mon-etary and fiscal policies that are also Islamic, if they understand the significance of Islamic values in those sectors. Similarly, they would also want their leaders to apply Islamic values for international relations.”175 Perhaps this analogy between the domestic and international realm should be further investigated; neverthe-less it is reasonable to think that Islam and Islamic law continue to play a role “in the cultural, political and legal affairs of many Muslim states and societies.”176

Nature of Islam as an Evolving Legal Tradition

The applicability of original sources of Islamic law to modern- day human interactions, including interstate relations, stems from the inherent nature of Islam as an evolving, living, and dynamic legal tradition. As a result, as in the times of Islam’s early development, there is an ongoing dialogue between the Quranic laws and the realities of contemporary politics. In other words, the Islamic legal tradition embraces the need for conversation between new situations that call for legal regulation and God’s revelations. This process of molding the law necessitates reaching back to Islam’s original sources, sources that generate legitimacy in the eyes of Muslim populations. According to Kelsay, “Muslim arguments about war and politics in contemporary settings proceed just as they did in preceding centuries: by asking ‘What guidance has God provided for the conduct of life?’ ‘What is the path that leads to refreshment’ corresponding to the example of the Prophet and the true nature of human beings?”177 This means that although the majority of ILS accept the reality that international law provides the “rules of the game,” and have, by necessity, taken on the political language of the nation- state, the content of ILS’ nation- states is deeply influenced by Islamic law. Thus, Islamic pre– nation- state norms are not deactivated in the context of ILS but instead provide an important backdrop for their actions. Tibi makes this point well:

173 For an interesting argument about Islamic law’s presence in the context of the modern nation- state, see Abou El Fadl 2012; and Quraishi- Landes 2015.

174 Bowen 2003, 263.175 Author interview with Dr. Aida Othman, August 28, 2015. See note 1.176 Baderin 2008, xiv.177 Kelsay 2007, 124.



In short, Muslim states adhere to public international law but make no effort to accommodate the outmoded Islamic ethics of war and peace to the current international order. Thus, their conduct is based on out-ward conformity, not on a deeper “cultural accommodation”— that is, a rethinking of Islamic tradition that would make it possible for them to accept a more universal law regulating war and peace in place of Islamic doctrine. Such a “cultural accommodation” of the religious doctrine to the changed social and historical realities would mean a reform of the role of the religious doctrine itself as the cultural underpinning of Islamic ethics of war and peace.178

Research shows that states— to a significant degree— build their domestic structure and institutions and design their agendas on the basis of models promoted at the global level. States mimic certain practices. International actors— other states, international institutions, and so on— have influence on ILS. All states, with their domestic constituencies, domestic institutions, structures, and policymakers, constitute complex actors with complex preferences. Thus, their preferences and behavior cannot be captured by oversimplified conceptions of states as merely rational, utility- maximizing agents. Social influence— emulation, social pressure to conform, and the like— plays an important role. Sometimes this mimicry is sincere, sometimes it is not. This process leads to “substantial cross- national isomorphism despite enormous differences in national resources, culture, and history.”179 ILS, like other states, to an important extent are subject to social mechanisms that pro-mote compliance with widely accepted norms and expectations of behavior. They conform to a degree to West- inspired international law. They mimic cer-tain practices to maximize benefits they can draw from participating in global politics. They also, to an extent, “adopt the beliefs and behavioral patterns of the surrounding culture, without actively assessing either the merits of those beliefs and behaviors or the material costs and benefits of conforming to them.”180 The point is that international rules constitute the existing commu-nity standards, and ILS, by necessity, have to abide by these standards. These standards do not, however, completely override Islamic norms and values that are deeply embedded in ILS. International law’s power of persuasion has limits in the Islamic milieu. Because there are some key, deep- seated differences be-tween the Islamic legal tradition and Western- based international law, accul-turation will have a lesser impact on ILS than on non- ILS. Simply put, ILS are

178 Tibi 2002, 188.179 Goodman and Jinks 2013, 57.180 Goodman and Jinks 2013, 22.



less motivated to indiscriminately accept the legitimacy of international law across the board. As a result, the degree of mimicry in the Islamic milieu has its limits. Tenets of the Islamic legal tradition can either confound or empower international law. In a way, certain moral concepts continue to have “moral and political salience” in the Muslim milieu in the context of interstate relations.181

Finally, it is useful to conceive the application of sharia to ILS’ actions not so much in terms of outright reliance on the Quran in policymaking, but in terms of a unique paradigm of Islamic conflict resolution. Ultimately, preferences of ILS are fundamentally shaped by the tenets of sharia, the Islamic culture, as well as the pre- Islamic nomadic, tribal culture or tradition that is stamped on the Quran. It is the culturally and socially embedded canon of informal dis-pute settlement that influences how ILS conceptualize mechanisms offered by international law. What also holds true, however, is that Muslim societies are embedded in systems of local customary law that sustains these societies in legal frameworks unlike any other. For instance, the Islamic courtroom has al-ways been largely a result of Islamic law and customary law coming together. As I described in chapter 3, custom is often considered to be as much of a legal language as the law sensu stricto. Hodgson argues that a “customary expectation of certain social and political forms and standards” constitutes an important extension of Islam.182 The point of muddled waters between law and non- law is made explicit by Bowen: “The Islamic justification created by judges departs from the usual reasoning of fiqh; it weaves together general moral principles, implicit analogies, and reports of statements by the Prophet Muhammad. Social norms and religious reasoning generated a law- like norm, which subsequently received legal justification. Here is a clear instance of the breadth of Islamic sociolegal reasoning.”183 It is as if Islamic law as implanted in state governance captures, albeit imperfectly, preexisting sentiments of society. In the words of Imam Ibrahim Amin,

Law, understood in the secular sense, ought not to prescribe, revise, re-strain, or contest the prevailing moral norms of society. They exist prior to the law, and law is supposed to protect them. If one wishes to ob-tain a change in a certain norm of society, one ought to begin from the

181 Fadel 2010, para. 4. 182 Hodgson 1974, 1:75. Hodgson also makes the interesting point that “almost any custom which he recognizes as valid is likely to be associated by an unlearnèd Muslim at least vaguely with his faith— as happens in the case of other religions also” (p. 74).

183 Bowen 2003, 146. He makes this statement in the context of Indonesia, but it resonates well across the entire ILS category.



grassroots. Only when the proposed norm becomes public will does law come in to enshrine it.184

Dupret argues a similar point in stating that “law as a social phenomenon cannot be reduced to the mere provisions of a legal code (law on the books).”185 The Islamic culture, Islamic values, and the Islamic legal tradition espouse informal ways of dispute settlement. ILS’ inclination toward non- binding third- party venues cannot be simply explained by rational, strategic calculations. It is much more a matter of deeply engrained preferences based on principle or even pas-sion. As Othman explained to me:

Yes, well Muslim countries I assume, let’s say they are led by Muslim leaders. Some are led by people with qualifications in Islam or Islamic law or the Qur’an. If they are such individuals then these leaders would definitely have grounding in the values in the Qur’an, in Islamic law which advocates mediation and reconciliation and peaceful means. These values have a significant place in the original sources of Islam and various treatises. They would find them familiar. It would be nat-ural for them to resort to it. There might be, of course, other factors that would impact the judgment and style of leadership but as a general rule, I think it would be a natural thing for them to resort to.186

Importance of Other Factors

Finally, it should be obvious that my focus on Islamic law is in no way to delegit-imize influences of other factors such as power, strategy, or simple cost- benefit concerns. Despite the fact that God’s message is intended to guide the beha-vior of all Muslim actors, individuals as well as collectivities, ILS may choose strategy over sharia’s creeds. As Abou El Fadl writes, “part of the problem with the application of Islamic laws in the contemporary age is that the state often cites the purported divine origin of these laws as a way of insulating itself from criticism. Since the state claims to act on behalf of the divine will, negotiating or reasoning with it is difficult, to say the least.”187 States, as units that interact with

184 Author interview with Imam Ibrahim Amin, Oxford Centre for Islamic Studies, Oxford, UK, May 16, 2016. 185 Dupret 2007, 84. Dupret goes perhaps a step further by focusing on people’s responses, or orientations to law as they come in contact with legal issues.

186 Author interview with Dr. Aida Othman, August 28, 2015. See note 1.187 Abou El Fadl 2003a, 200.



each other on the systemic level, pursue their interests. For most countries, these interests are demarcated in the language of power and capability. But ILS are to some extent unique in their embeddedness in an additional normative system, that of Islamic law, and this is what my theory captures.188 The normativity of international law is well established in the international system. It comes from sources external to ILS— treaties, custom, general principles of law, judicial decisions, and the writings of qualified publicists.189 The normativity of Islamic law projects itself onto the international arena from inside ILS. In a way, there are different layers of sedimentation that have settled on the nation- state shells of ILS.190 The Islamic legal tradition is one of these layers. In a sense, ILS form a subgroup of states within the broader framework of the international system. As Hashmi writes, “contemporary Muslim theorists— modernists as well as fundamentalists— agree that the Muslims are and should form a distinct mul-tinational society within international society.”191 This reality shapes the way that ILS conduct their international dealings and negotiate agreements. In the word of Nawaf Alyaseen, “Nothing in Islamic sharia bans doing international agreements. The problem is when we come to the details of these agreements.”192

Many non- ILS states have domestic legislation that conflicts with interna-tional law, but ILS are often more reluctant to shed conflicting domestic law that is based on sharia. Sharia’s presence in a domestic legal system gives ILS leaders sought- after legitimacy. As Otto suggests, “Western policymakers should also learn to understand the governance dilemmas of Muslim governments. This means they must realise that progressive laws can also strike back at society like a boomerang; they should acknowledge the need in Muslim countries for symbols of Islamic belief, culture and national consciousness in the search for a collective identity.”193 But it is not the case that ILS are so peculiar as to be im-mune from all the other streams of influence that shape states’ behavior. As the following empirical chapters 5, 6, and 7 make clear, the balance of Islamic and

188 In this context, it is useful to recall Reese, Ruby, and Pape’s (2017) work on the link between the Islamic calendar and political violence in Islamic societies. According to these authors, these calendars are not direct causes of political conflict (factors of economic, social, political nature, and so on). Instead, the Islamic calendar affects “the causal chain between these root causes and observed violence by enhancing or diminishing the incentives for militant groups to attack at partic-ular moments” (p. 440). 189 These are the sources of international law, as listed in Article 38(1) of the Statute of the ICJ. I elaborate on these sources in chapter 3.

190 I thank Ebrahim Moosa for suggesting this interesting fact to me.191 Hashmi 2002b, 155.192 Author interview with Dr. Nawaf Alyaseen, a Kuwaiti legal practitioner, Future Law Firm;

Legal Consultants, Arbitrators, and Mediators, December 13, 2017.193 Otto 2007, 153.



secular law is only one stream of influence, albeit an important one. However, conceptualizing the linkages between ILS’ domestic legal systems and inter-national conflict management mechanisms enables us to recognize patterns of these states’ behavior that otherwise would have gone unnoticed. Though this theory captures several crucial aspects of ILS’ behavior, many dynamics are still underexplored. Consequently, the complicated, ever- evolving and mutually constitutive relationship between legal tradition, culture, politics and religion in the Islamic milieu calls for further theoretical development. Indeed, the ILS category— with all its diversity and local consciousness— requires more schol-arly investigation.

The broader point conveyed in this chapter is that ILS have preferences that differ from other states. These preferences are, in turn, projected onto interna-tional dispute resolution venues. The language of legitimacy in ILS nation- states is not settled in the same manner as in the Western world. My theory introduces nuance into any blanket claim about ILS and international settlement venues and produces a number of hypotheses that I test in the next three chapters. The way that Islamic law and secular law amalgamate in ILS’ domestic legal sys-tems shapes these states’ attitudes toward international law and international settlement venues. These attitudes are observable because ILS make specific choices with regard to conflict management venues when they are involved in disputes. Additionally, ILS have the opportunity to accept the jurisdiction of the International Court of Justice. Some of these states choose to recognize its adjudicatory powers, and some shy away from the Court. ILS do not all speak in the same legal language and do not project uniform norms onto the international arena.


islamic law and international law...the interplay of islamic law and classical international law is...

Documents