Islam and International Criminal Law: The Question of Complementarity and Ijtihad

[Fajri Matahati Muhammadin is an assistant professor at the Department of International Law, Faculty of Law, Universitas Gadjah Mada, Indonesia, and Director of Pusat Kajian Hukum Internasional Islam (Research Center for Islamic International Law).]

Al-Mahdi: An Overlooked Question

Before being brought to the ICC, Al-Mahdi made Islamic justifications for attacking shrines and a mosque (after actually previously being against it). His Al-Qaeda credentials would easily scream ‘extremist who does not represent Islam’, but are literally 100% positions of Al-Qaeda invalid, though? After all, in Islam, sometimes evil is committed by mixing truth and falsehood.

Some authors make it like there is an absolute inviolability of places of worship in Islamic law, such as Victoria Arnal, citing some basis from the Qur’an and Hadith. However, the reality is that Prophet Muhammad ﷺ did command the destruction of certain polytheistic shrines. What to make of this seemingly contradictive evidence? Meanwhile, Arnal’s article appears to have overlooked the opposing arguments. Even Imam Yahya ibn Sharf Al-Nawawi, one of the most celebrated classical Islamic scholars across all schools of thought and jurisprudence, has called for the destruction of shrines and graves used for polytheistic rituals.

Alas, Al-Mahdi pleaded guilty and admitted his fault so that is where the discussion ends. However, an overlooked question is: what to do with different opinions? After all, it is entirely possible that all differing opinions, despite perhaps one being stronger than the other, are still founded upon legitimate Islamic jurisprudence. Another example, some contemporary Islamic scholars may repeat ‘The Prophet did not execute captives except for extraordinary crimes’ to categorically prohibit captive execution. Nonetheless, the majority of Islamic jurists across various schools of jurisprudence have allowed the Muslim leader to execute captives if there is a necessity (in Islamic terms: ‘maslahat’). It must be noted that maslahat is a comprehensive subject in Islamic jurisprudence, not equivalent to ‘wanton’ but is not limited to ‘due to extraordinary crimes’ either.

It is all too easy, especially for the non-Muslim world, to naturally side with whichever opinion coincides with what are alleged to be ‘international values’. But we’d like to believe that Professor Intasar Rabb was appointed as Islamic Law advisor to the ICC OTP so that Islamic law could be listened to, understood, and involved.

Under such an assumption, it would be prudent to see what Islamic jurisprudence has to say regarding the problem of different opinions. Perhaps this would provide insight when dealing with cases where alleged war crimes might have an actual basis in Islamic jurisprudence because this can be a question of complementarity.

Ijtihad and Ikhtilaf

In short, ijtihad here is the process of deriving legal rulings regarding matters not explicitly touched in the Qur’an and Sunnah (prophetic tradition). For over a millennium, Islamic jurists have developed a sophisticated science of jurisprudence from which to guide the conduct of ijtihad, namely usul al-fiqh. Even then, anyone learning this science would know that for a scholar to issue legal rulings, mastery of usul al-fiqh is insufficient. There are other related Islamic sciences whose mastery is also indispensable, such as the Arabic language, hadith science, Qur’an exegesis, qira’at, and many others. Each of these is its own branch of Islamic science.

As these sciences are built upon a very strong and long-standing tradition of scholarship, it is natural that different schools of thought and jurisprudence emerge causing differences of opinion or ikhtilaf. There are many causes of differences, among them are simply different principles and theories used to understand the Qur’an and Sunnah. A classical (and overused) example: does touching the opposite sex invalidate one’s ritual ablution? The scholars differ on whether to take the Qur’anic text literally or metaphorically (i.e. to mean either lustful touching or intercourse). These different opinions are based on different methodologies of jurisprudence.

These differences of opinion may (and have) caused problems especially when the different schools interact. For example, there are some recitations in salat (i.e. one of the major Islamic ritual prayers) that are required by some schools but not others. This means that in a congregational prayer, there might be some whose prayer is invalid according to others. But what if the Imam’s prayer is invalid according to some of the congregation?

This is where an Islamic legal maxim comes into play: Al-Ijtihad La Yunqad bi al-Ijtihad (one ijtihad does not invalidate another ijtihad). Meaning, in short, scholars traditionally do not invalidate the legal effect of each other’s juristic opinions even when they disagree. Among the basis for this principle is a prophetic tradition related to combat. Prophet Muhammad ﷺ berated Usamah ibn Zayd for killing an enemy who, moments before being killed, accepted Islam. Usamah reasoned that the man was not sincere, but Prophet Muhammad ﷺ rejected that reason. This story is a favorite basis for ‘we do not judge what is in the heart’, but it also shows that Usamah was not punished for killing a man unjustly because he did so based on his sincere (albeit incorrect) judgment. Another relevant story is when the first caliph Abu Bakr Al-Siddiq refused to sack (criminal penalty did not seem to even be on the table) his commander Khalid ibn al-Walid for incorrectly deciding to execute a rebel leader Malik ibn Nuwayrah.

This does not mean to prohibit scholars from making tarjih (i.e. determining which opinion is stronger than the other). However, not only that the other view could be defended further by other scholars, but the legal effect upon the individuals following the rulings is not invalidated. Therefore, in the previous case of different opinions regarding prayer validity, each side would think that the other is incorrect but is forgiven for it due to the sincere effort they have made in following legitimate jurisprudence.

Another prophetic tradition must be noticed. Prophet Muhammad ﷺ said that a judge who erred will get one reward, while the correct one gets two rewards. This further corroborates the previously mentioned maxim, but it must be noted that this prophetic tradition speaks only of those who are competent to issue legal rulings. Therefore, not just any random Aisha or Ali could make a legal ruling and claim to get one reward for it.

What Room Does the ICC Have?

This issue at hand might affect the application of the principle of complementarity. The idea is that, if alleged international crimes can be properly dealt with in the domestic systems, then there is no reason for the ICC to jump in. However, domestic processes sometimes are not proceeded by prosecution processes, and not all such decisions are unjust. Therefore, Article 17 of the Rome Statute prescribes requirements for domestic processes to properly fulfill the principle of complementarity, so the ICC need not be bothered with such cases.

The decision for an Islamic government to not punish an act based on legitimate ijtihad might fall under the ‘decision not to prosecute’ possibility as per Article 17(1)(b) of the Rome Statute. The next question is whether such a decision can be considered as resulting from ‘unwillingness’ or ‘inability’, perhaps the former being more relevant.

‘Unwillingness’, explained further in Article 17(2) means sham trials to shield perpetrators, unjust delays, or lack of independence or impartiality (Otto Triffterer and Kai Ambos explain that this list is exhaustive). The case in question, i.e. not prosecuting based on legitimate ijtihad, does not appear to fall under any of the ‘unwillingness’ options. We must be clear that such a decision is not an act of shielding persons from proper justice processes. At this point, it appears simple: complementary may be fulfilled. 

However, there may be a problem in the case of non-state actors. Article 17(2) requires a domestic process. If the perpetrator committed acts based on Islamic law in an Islamic society or as part of an Islamic group, what if the national process that brought her/him before the ICC overlooked all that? It is not inconceivable that such acts occur in Islamic societies not governed by Islamic law, or even in non-Islamic states altogether. This is something to think about.

What Room Does Islamic Law Have?

One important Islamic legal maxim needs to be mentioned here: hukum al-hakim yarfa’u al-khilaf (ruler decrees removes differences of opinion). Meaning, the ruler can make an ikhtilaf irrelevant by imposing one opinion as rule. Islamic scholars like Shaykh Abdul Karim Zaydan have explained that rulers decree like this is an exception to the previously mentioned maxim of Al-Ijtihad La Yunqad bi al-Ijtihad.

The application of the aforementioned maxim may be supported by the fact that rulings incompatible with international criminal law matters might be dominated by matters considered as ruler discretion in Islamic law. In a book chapter recently published, together with a colleague I used a traditional approach of Islamic law to analyze the Rome Statute’s “War Crimes Against Civilians”. There were numerous Rome Statute war crimes not explicitly discussed (or criminalized) in classical Islamic law scholarship but many of them violate the general principles of Islamic law. 

We thus found that even a traditionalist approach to Islamic law would necessitate the criminalization of many (but not all) acts considered war crimes in the Rome Statute via ta’zir or ruler discretionary punishments. Some general compatibilities of principles between the Islamic laws of warfare and the criminalization of war crimes added by the dominance of ta’zir matters in areas of incompatibilities might open many doors to harmonization. Therefore, there is more foundation for Islamic rulers to invalidate the ijtihad of their officials and punish them for it.

Some Final Notes

Nonetheless, there are at least two points to think about for future research in this direction.

First, to what extent might this really be a problem? More comprehensive research should detail all relevant issues and properly map out prospects and challenges problems. It seems that many disputes occur due to the insistence of some scholars to only dwell on very general principles while unwilling to dive into the rich body of Islamic scholarship containing so many detailed discourses.Second, once the issues are mapped out, what to do next? Honest and non-apologetic research needs to be done to identify the extent of compatibility/incompatibility between Islamic law and international criminal law. Nesrine Badawi, among others, has criticized how many researchers tend to be overly (and dishonestly) apologetic just to show ‘Islam and international law are compatible’. The reality is that, once we start hearing all the previously unheard voices, it is very likely that we won’t always like everything we hear. Dishonesty is not the best way to start talking.