Is There a Place for Islámic Law within the Applicable Law of the International Criminal Court?

Badar, Mohamed (2018) Is There a Place for Islámic Law within the Applicable Law of the International Criminal Court? In: Islam and International Criminal Law. Torkel Opsahl Academic EPublisher.

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Abstract

The aim of this chapter is to find out whether the basic principles of Islámic criminal law are indeed incompatible with the Western legal systems and if not, what can Islámic law bring to the international criminal law table in order to enrich it and make it a true reflection of the legal systems of the world. To enable a basic understanding of Islámic law and its non-monolithic nature, this chapter begins with an examination of the sources of Islámic law, the leading schools of Islámic jurisprudence (madháhib) and the application of Islámic law in Muslim-majority states. It then looks at the categories of crimes as found in the Islámic legal tradition to identify potential conflicts and convergence with international criminal law. The chapter then turns to legal maxims and conducts a comparative study between Islámic law and Western legal systems on some of the fundamental principles of criminal law such as the principle of legality, the presumption of innocence, the concept of mens rea and the standards used by Muslim jurists for determining intention in murder cases as well as other general defences such as duress and superior orders. It concludes that the Islámic legal system is not fundamentally in conflict with Western legal traditions and that the flexibility of Islámic law and especially the abstract nature of its legal maxims put it in a position where it could play an important role in the potential codification of new crimes at the ICC.

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