The International Criminal Court and the Applicability of International Jurisdiction under Islamic Law

Article excerpt

I. INTRODUCTION

Customarily, globalization refers to the increasing activity of transnational actors and the resulting push for greater international legal harmonization to facilitate expanding business relations. But globalization could also refer to the expansion of criminal law of universal applicability, such as the universal law against "crimes against humanity."1 Although this expansion, having taken place throughout the twentieth century, is not particularly recent, since September 11, 2001, the ability to enforce universal criminal laws has taken on greater significance.

Previously, countries would rarely allow outside authorities to exercise jurisdiction over their own citizens or even other nations' citizens residing within their territory. More often than not, disputes were resolved either by some manner of negotiation and settlement or armed conflict. Sometimes negotiations were based on bilateral or multilateral treaties requiring parties to try or extradite criminals, and other times were based solely on comity. Regardless of the method of determining the appropriate jurisdiction, it has become increasingly important that countries agree on a forum for the effective prosecution of terrorists. The International Criminal Court ("ICC") provides an interesting alternative to the traditional manners of determining the appropriate jurisdiction for trying international criminal offenses.

When one now mentions the word "terrorist," it conjures up stereotypical images of bearded Middle Eastern men desirous of martyrdom. While this is indeed unfortunate, it raises the issue of what more can be done to curb terrorism and other crimes against humanity arising from or occurring in predominantly Muslim countries. Many commentators may choose to target Muslim countries' varying degrees of application of Islamic law as a roadblock on the path towards world peace and prosperity. This Development will address whether international jurisdiction in general, and the ICC in particular, are compatible with Islamic law. Part II will deal with the compatibility of Islamic law with modern international law. Subpart A will examine the contemporary rules of international jurisdiction, while Subpart B will consider the issue under the lens of Islamic law. Finally, Part III will analyze the ICC and its relevance to Islamic law countries.

II. COMPATIBILITY OF ISLAMIC LAW WITH MODERN INTERNATIONAL LAW

Modern international law has changed dramatically in the past fifty years. In contrast, Islamic law, or the Shari'ah,2 is over fourteen centuries old, and has been viewed in recent times as somewhat monolithic. The question is therefore a basic issue of coexistence: can a jurisdiction wishing to apply the Shari'ah fulfill its obligations under contemporary international law? In particular, how are international jurisdiction principles to be applied?

A. CONTEMPORARY RULES OF INTERNATIONAL JURISDICTION

There are three main varieties of jurisdiction discussed in the Restatement (Third) of Foreign Relations Law ("Restatement"): prescriptive, adjudicative, and enforcement jurisdiction.3 Prescriptive jurisdiction is the authority of a state to apply its own laws to persons and activities.4 Adjudicative jurisdiction is the "authority of a state to subject particular persons or things to its judicial process."5 More generally, adjudicative jurisdiction is the requisite legal power to bind the defendant with a judgment-hence it focuses on the relationship between the adjudicating body and the defendant. Enforcement jurisdiction is simply the power to enforce laws; it is the ability to use government resources to "induce or compel compliance" with state law.6 Traditionally, all three types of jurisdiction must be present for a state to detain and try a suspect.7

Asserting international prescriptive jurisdiction under the Restatement can be achieved using any one of five alternatives: territorial, nationality, protective, passive personality, or universal jurisdiction. …

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