10. The ICC and Traditional Islamic Legal Scholarship: Analysing the War Crimes Against Civilians

In recent decades, numerous criticisms have been directed at Eurocentrism in international law generally and international criminal law specifically. These critics demand international law to be more inclusive towards non-European knowledge, inter alia Islamic law. Some scholars have argued that it is essential for the ICC to refer to Islamic law, not only to counter Eurocentrism in general but also because of the growing number of cases involving Muslims. Other scholars have suggested that there is some congruence between Islamic law and international criminal law in some general principles. However, so far there is very little comprehensive analysis on the compatibility of the two. It must be noted that if Islamic law has prescribed criminalization for international crimes up to a standard which is at least on par with what international law requires, this would mean at least that (a) there would be no reason for the ICC to not refer to Islamic law resources, and (b) Muslim states/groups who implement it would not need to refer cases to the ICC due to the complementarity principle. This research comparatively analyses Islamic Law and the ICC Statute. For the former, this research uses the fiqh literature of the traditionalist Islamic law scholars. Further, this research limits itself to war crimes included in Article 8 of the ICC Statute, specifically crimes against civilians. The hypothesis is that there is congruence in some but not in all rules, which is a challenge for international law and Islamic law scholars likewise.