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Cultural and Legal Influences and Impediments

to Cultivating Peace and Human Rights in Islamic States

By Kevin Hugh Govern*

ABSTRACT

There are a multitude of cultural and legal influences that assistand impediments that

resistthe cultivation of peace and human rights in Islamic states. First, there is no one single

Islamic attitude towards the legitimacy of international law and international agreements

among the nations which have adopted Islam as their official state religion, those which have

adopted Islamic law (Sharia)1

as their legal system, or those that have Muslims as the majority

or sizeable minority of their populations. Second, the United Nation's Universal Declaration of

Human Rights (UDHR) is perceived by some in Islamic nations as failing to take into account

the cultural and religious context of non-Western, Islamic nations. Finally, there is a

fundamental requirement to categorize certain apparent or perceived differences in approaches to

advancing peace and human rights with respect to Islam. Certain practices and policies may be

in Sharia; others bycontrast may be erroneously attributed to be in Sharia but are in fact of

tribal or ethnic origin and are culturally significant but not Islamic. Some practices and policies

Kevin H. Govern, J.D., LL.M., is an Associate Professor of Law at the Ave Maria School of Law

and an Instructor of Legal Studies at the California University of Pennsylvania. He has also served

as an Assistant Professor of Law at the United States Military Academy. Any errors or omissionsare solely the responsibility of the author.

1Sharia is sometimes Anglicized into Shariah in English translations. See, e.g., Const. of Saudi

Arabia, art. 8, available athttp://www.servat.unibe.ch/icl/sa00000_.html (Adopted in March 1992

by Royal decree of King Fahd);seeCountries, ISLAMIC WORLDNET, http://www.islamic-world.net/countries/index.htm (for a list of nations described as Muslim, Islamic, or Islamically-

influenced).


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are Islamic and incapable of change or variation, while other practices or policies may be

theoretical or aspirational but not enforced or enforceable.

This article will examine the cultural and legal influences and impediments to the

cultivation of peace and human rights in Islamic states. Part one considers the current context of

war and peace in Islamic states, recounting the turbulence in large part inherent within most

states and regions influenced by Islam. To understand why these conditions exist, and how they

might change for the better or worse, part two examines how words and deeds matter under both

Islamic law and as binding obligations under International law. Consistent with that study of

words and deeds, in part three there are contemporary obligations and eternal covenants that rate

commentary and show how regional and international alliances and treaties under Islamic law

affect peace and human rights. Part four adds an additional layer of historical perspective of past

being prologue regarding tribal influences, non-legal traditions, as well as laws and treaties

which may affect the advancement of peace and human rights. Finally, in part five, the so-called

Twitter Revolutions of 2010-2011 posits how social media and electronic dissemination of

knowledge have been indispensable to the (re)establishment of peace, human rights, and political

legitimacy in an ever-growing number of Islamic states. It is my hope that this five-part survey

will aid readers to more deeply appreciate the matters discussed on the promotion of peace and

waging of war, and the means of preserving and promoting the integrity and dignity of all human

beings, Muslim and non-Muslim alike.


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I. THE CURRENT CONTEXT OF WAR AND PEACE IN ISLAMIC STATES

The so-called Global War on Terror(ism), or GWOT, now restyled as Overseas

Contingency Operations, or OCOs,2

predominantly focuses on the clash between Western

democracy and the al-Qaeda terrorist network, while only secondarily striving to create or

foster conditions for peace, stability, or promotion of human rights. That is because the latter

effort is far more daunting and difficult.

A coalition of nations, including but not limited to the U.S., have been targeting well over

a dozen Islamic terror groups and engaging in cooperative ventures with many nations that have

Islamic law heritages or substantial Muslim majority or minority populations. Such coalitional

efforts still operate with inherent challenges of understanding the religion of Islam and the

cultural expressions and institutions that may be influenced by Islam but not controlled or even

prescribed by that faith. It is important to note that not all individual acts of terrorism can be

associated with fanatical political or religious ideologues, 3 nor should terrorism or even Islamic

extremism be imputed to the vast majority of those in the world who peaceably practice the

religion of Islam. As previously written in 2011,

[C]ountries in the Middle East and North Africa were experiencing protestsagainst political repression and economic hardship, unprecedented in scope or

duration since independence from imperial domination, and resulting in the rulersin Tunisia and Egypt being ousted, and those of Bahrain, Jordan, Libya, Oman . . .

Yemen and Iran [have been] challenged.4

2 See Scott Wilson, Al Kamen, Global War on Terror is Given New Name, WASHINGTON POST,

Mar. 25, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032402818.html

3See JEFFREY F. ADDICOTT, TERRORISM LAW: MATERIALS, CASES, COMMENTS 9 (4th ed.,

Lawyers & Judges Publg Co., Inc. 2007).

4 Kevin H. Govern, 21st Century Africa as an Arc of (In)stability: U.S. and African Economic,Security, and Development Policies Advanced Through U.S. Africa Command Initiatives, 26

CONN. J. INTL L. 281, 286 (2011). Since the publication of that law review note, the leader ofLibya was killed by rebel forces, and the leader of Yemen has sought exile in Ethiopia. Ousted

Yemeni Leader Saleh to Seek Exile in Ethiopia, THE INDEPENDENT, Feb. 28, 2012,


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Harkening back some fifteen years ago to a different time which nonetheless created the

circumstances of past being prologue, the American political scientist Samuel Huntington

warned of an upcoming international clash of civilizations.

5

Mindful of the aphorism that past

is prologue, I will next look back to look forward, order to comment on whether or not a right to

peace is mutually exclusive or inclusive of where human rights are to be recognized and realized

for all.

II. DIVINE WORDS AND HUMAN DEEDS - ISLAMIC LAW ANDBINDING OBLIGATIONS UNDERINTERNATIONAL LAW

Islamic law is ordinarily understood as the corpus of scholarly law handed down from

medieval times and crystallized in written form around the 13th

century (or later amongst Shia

scholars). It stems from the 7th century divine revelations of the Quran (alsoKoran in English,

but meaning the word of God) and the Sunnah (the record of the Prophets life). Islamic law is not

found in the Quran or Sunnah, literally, but rather through interpretation of those sources by

fallible human means.6

http://www.independent.co.uk/news/world/middle-east/ousted-yemeni-leader-saleh-to-seek-exile-

in-ethiopia-7447321.html. Since the publication of that law review note, the leader of Libya waskilled by rebel forces, and the leader of Yemen has sought exile in Ethiopia. See, e.g., Ousted

Yemeni leader Saleh to seekexile in Ethiopia, Independent.co.uk, Feb. 28, 2012,http://www.independent.co.uk/news/world/ middle-east/ousted-yemeni-leader-saleh-to-seek-exile-

in-ethiopia-7447321.html.

5See SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE REMAKING OF WORLD

ORDER216-18 (Simon & Schuster 1996).

6Frank Vogel, Founder of Islamic Legal Studies Program at Harvard, Presentation to U.S. Army

Civil Affairs and Psychological Operations Command/Peacekeeping And Special OperationsInstitute (USACAPOC/PKSOI) at the 3d Rule of Law Workshop: The Islamic Legal Tradition

(Mar. 2007).


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International lawbased upon treaties between sovereign states and customary law

through legal norms of customary exchanges between stateshas been founded essentially in the

exercise of free will and conclusively in the elements of contract or covenant (offer, acceptance,

and consideration). In Islam, humankind has the freedom to make contracts and covenants with

others, and as a collective representation of Muslims, states may observe and conclude agreements

in accord with the law and custom of the land and treaty obligations.7

Islamic law allows for

Muslims to honor or break such obligations, consistent with this charge: O ye who believe! Fulfil

your compacts.8 In other words, there is exhortation to be true to your contracts, covenants and

commitments. For Muslims an oath may be expressed only in one specific manner, that is, in the

name of Allah alone. There shall be no compulsion in religion; for guidance and error have been

clearly distinguished.9

Note also that a number ofHadiths (traditions of sayings of the Prophet Muhammad)

suggest that swearing by anything but God is not allowed, especially with regards to contract and

covenant. For instance, in Bukhari:

[The Prophet] said, What do you think of men who impose shurut [stipulations]which are not in the Writ [Book] of God most high? Any stipulation not in the Writ

of God is void [batil]. Were it one hundred conditions, the judgment of God ismore just, and the stipulation of God more reliable.10

7See, e.g.,War View: UK Muslims Must Obey UK Law, BBC, Nov. 4, 2001,

http://news.bbc.co.uk/2/hi/uk_news/1634517.stm.

8

Qur'an5:2 (New translation by Muhammad Zafrulla Khan (1997));see also Muhammad ibn al-Hasan Ash-Shaybani, MUSLIM INTERNATIONAL LAW (KITAB AL-SIYAR AL-SAGHIR),http://kalamullah.com/Books/Kitab%20al-Siyar%20as-Saghir.pdf.

9Quran 2:257 (New translation by Muhammad Zafrulla Khan (1997)).

10Frank E. Vogel,ISLAMICLAW ANDFINANCE: RELIGION, RISK ANDRETURN67 (1998) (internal

citations omitted).


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The consequences of infidelity to ones word, beyond the human consequences of conflict, strife,

or legal action, will be such that: [On the Day of Judgment,] every human being will be held in

pledge for whatever [evil] he has wrought save only those that have attained to righteousness.11

Despite these consequences, Muhammad renounced some agreements with infidels and

pagans, specifically one of his first international law obligations, when he broke the formal treaty

with the pagans at Mecca;

. . . Allah is free of all obligation to the idolaters, and so is his Messenger. So now,having witnessed this Sign, if you will repent and make peace, it will be better for

you; but if you turn away, then know that you cannot frustrate Allahs design.12

To this end, some might claim that Islam recognizes that oaths may be disregarded, but the Surah,

sometimes quoted towards that end, must be taken in the context in which it is offered: Allah has

sanctioned the dissolution of your vows, and He is your patron.13

Oaths are limited to the

intentions of the heart; to that end: Allah will not call you to account for such of your oaths as are

vain, but will call you to account for the evil you have deliberately assented to. Allah is most

forgiving, forbearing.14

In stark contrast to Muhammad, his followers were bound to their

obligations to the idolaters:

11Quran 74:38, in ISLAMITEXTS, http://www.islamitexts.org/?noar=&t=9&k=74%3A38 (last

visited April 19, 2012).

12

Quran 9:34 (New translation by Muhammad Zafrulla Khan (1997)) (Note that this must beread in conjunction with the exhortations which then follow: Carry out the obligations you haveassumed towards them till the end of their terms.).

13Id. at 66:2 (Note that this is related to pleasure of wives not other matters!).

14Id. at 2:225 (Note that this relates to vain oaths, made as an excuse from doing good and

working righteousness and promoting public welfare.).


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Allah is free of all obligation to the idolaters, and so is his Messenger. So now,having witnessed this Sign, if you will repent and make peace, it will be better for

you; but if you turn away, then know that you cannot frustrate Allahs design.15

Legal systems generally recognize the impossibility and impracticability of performance as

a defense to contractual obligations. This also pertains in Islam to oath keeping and absolution for

oath breaking. With respect to oaths among mankind, Muslims are told that:

Allah will not call you to account for your meaningless oaths but will call you toaccount for breaking your oaths by which you bind yourselves; the expiation of

such breach is the feeding of ten poor persons with such average food as you eatyourselves, or providing clothing for them, or procuring the freedom of one held in

bondage. . . . Do observe your oaths. Thus does Allah expound to you HisCommandments that you may be grateful.16

Pre-Islamic Arabian tribes concluded various alliances and treaties to regulate their

economic, social, and public life. Among these alliances were Hilf al-Mutayyibin and Hilf al

Fudul.17 The Islamic scholar Hilmi M. Zawati has noted that Islamic law imposes the requirement

to respect treaties among and between nations, even above the respect of religious solidarity,

quoting the Quran to this end:

Allah enjoins equity and benevolence and graciousness as between kindred, and

forbids evil designs, ill-behaviour and transgression. He admonishes you that youmay take heed. Fulfil the covenant of Allah when you have made one; and break

not your pledges after making them firm, having made Allah your surety; Allahknows that which you do.18

15Id. at 9:34 (Note that this must be read in conjunction with the exhortations which then follow:

Carry out the obligations you have assumed towards them till the end of their terms.).

16Id. at5:90.

17Hilmi M. Zawati,Is Jihad a Just War? War, Peace, and Human Rights Under Islamic and

Public International Law, 53 STUDIES IN RELIGION & SOCY 55 (2001).

18Quaran 16:91 (New translation by Muhammad Zafrulla Khan (1997)).


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Nevertheless, if they [who have believed and have not migrated] seek your help inthe matter of religion it is incumbent on you to help them except against a people

between whom and yourselves there is a pact. Allah sees what you do.19

It is both a sacred and human obligation, then, in which one must live the hadith that

requires Muslims to: Fulfill the trust towards the one who trusted you, and do not betray the one

who betrayed you.20

III. CONTEMPORARY OBLIGATIONS AND ETERNAL COVENANTS

HOW REGIONAL AND INTERNATIONAL ALLIANCES AND TREATIESUNDERISLAMIC LAW AFFECT PEACE AND HUMAN RIGHTS

To fully understand Islamic attitudes towards an aspirational goal of peace and human

dignity, one must return to the essence of what constitutes Islam and what it means to be a Muslim.

Islam dates to the 7th Century Common Era (CE) (a/k/a Anno Domini or Year of Our Lord,

abbreviated A.D.) and the life of its founder, the Prophet Muhammad of Mecca, Arabia. The

Prophets life from 570CE through632CE included the beginning of his Prophethood in 610CE,

the spread of Islam with Muslim preachers reaching China by 615CE through 625CE, the

emigration of Muslims to Medina by 622CE, and the death of Muhammad in 632CE.21

In the formative era of Islam from the 6th through the 7th centuries CE, there arose a

problem of succession and leadership of the umma (community of the faithful).22 Under the four

19

Id. at 8:74.

20Zawati,supra note 17, at 55 n.272 (internal citations omitted).

21See MARKWELTON & KEVIN GOVERN, ILLUMINATING ISLAMIC JURISPRUDENCE: THE ORIGINS

AND PRACTICE OF ISLAMIC LAW WORLDWIDE 8-10 (2d ed. 2007).

22Id. at 12.


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rightly guided Caliphs: Abu Bakr, Umar, Uthman, Ali and their successors came a rapid spread

of Islam.23

The origins of Shiite and Sunni Islam began as a political movement upon Muhammads

death where the preference of his son-in-law Ali, the fourth caliph, over Abu Bakr resulted in long-

term bitterness over the challenge of Umayyad caliphs.24 The struggles between Yazid and

Umayyads (Syria) versus Husayn and Shiites (Iraq) at Kerbala (680CE) led to persecution by

Sunni majority of those to be known as Shia and rejection/withdrawal of the political realm, and

the ensuing parallel but separate development of Islamic jurisprudence (fiqh) amongst Sunni and

Shia schools of thought.

25

The outset of this article noted the cultural and religious divide between Western, non-

Islamic nations and non-Western, Islamic nations on international obligation regarding human

rights. Nevertheless, amongst other agreements, the following were expressions of commitment to

peace and human rights between and among Islamic states: the Pact of the League of Arab States

and the Arab Charter of Human Rights; the Charter of the Organization of the Islamic Conference;

and the Sharia-compliant Cairo Declaration of Human Rights in Islam (CDHRI) charter. At the

risk of overlooking the entire range of current events impacting upon, and being impacted by, these

agreements, I shall discuss the most emergent matters with regards to regional stability and

security involving each.

23Id. (Note that throughout this article, certain anglicized terms will appear, to include variations

which may have American or Indian / British English spelling conventions applied. In this

instance, the anglicized Caliph, from the Arabic khalifat rasul Allah, means representative of theMessenger of Allah.).

24Id. at 8-10 (this struggle reached a head in the massacre of Kerbala in 680 CE of Alis son

Husayns forces. Supporters of Ali and sons Hasan and Husayn were forerunners of Shiism.Supporters of Abu Bakr and later of the Umayyad caliphs were the forerunners of Sunnism.).

25Id. at 8-10.


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The Organization of Islamic Cooperation (OIC) with its fifty-seven members is the second

largest inter-governmental organization after the United Nations.26

The OICs origins were

decades in the making after the official abolition of the Ottoman Empire in 1924, leading to the

1972 conference for the Ministers of Foreign Affairs of Islamic countries held in Jeddah, Saudi

Arabia and the OIC charter adoption based upon the bedrock principle of Islamic solidarity.27

According to the Permanent Mission of the OIC to the United Nations, the OIC members pool

their resources together, combine their efforts and speak with one voice to safeguard the interests

and secure the progress and well-being of their peoples and of all Muslims in the world.28

Of similar aspirational nature and scope to the Arab Charter of Human Rights, the Charter

of the OIC has a preamble similarly inclined towards the commitment to religious values, human

rights, national sovereignty, as well as international obligations, in that it states that:

to respect, safeguard and defend the national sovereignty, independence andterritorial integrity of all Member States;

to contribute to international peace and security, understanding and dialogue

among civilizations, cultures and religions and promote and encourage friendlyrelations and good neighbourliness, mutual respect and cooperation;

to promote human rights and fundamental freedoms, good governance, rule of law,

democracy and accountability in Member States in accordance with theirconstitutional and legal systems;

to promote confidence and encourage friendly relations, mutual respect and

cooperation between Member States and other States;

26NGO Law Monitor: Organization of the Islamic Conference, THE INTERNATIONAL CENTER FOR

NOT-FOR-PROFIT LAW (Mar. 23, 2012), http://www.icnl.org/research/monitor/oic.html (theorganization changed its name (Arabic: : ; French Organisation de laConfrence Islamique) in June 2011 to its current name, the Organization of Islamic Cooperation).

27Id.

28CHARTER OF THE ORGANISATION OF THE ISLAMIC CONFERENCE (2008), http://www.oic-

oci.org/is11/english/Charter-en.pdf [hereinafter CHARTER].


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to foster noble Islamic values concerning moderation, tolerance, respect fordiversity, preservation of Islamic symbols and common heritage and to defend the

universality of Islamic religion;

to advance the acquisition and popularization of knowledge in consonance with the

lofty ideals of Islam to achieve intellectual excellence;

to promote cooperation among Member States to achieve sustained socio-

economic development for effective integration in the global economy, inconformity with the principles of partnership and equality;

to preserve and promote all aspects related to environment for present and future

generations;

to respect the right of self-determination and non-interference in the domesticaffairs and to respect sovereignty, independence and territorial integrity of each

Member State;

to support the struggle of the Palestinian people, who are presently under foreignoccupation, and to empower them to attain their inalienable rights, including the

right to self-determination, and to establish their sovereign state with Al-Quds Al-Sharif as its capital, while safeguarding its historic and Islamic character, and the

holy places therein;

to safeguard and promote the rights of women and their participation in all spheresof life, in accordance with the laws and legislation of Member States;

to create conducive conditions for sound upbringing of Muslim children and youth,

and to inculcate in them Islamic values through education for strengthening theircultural, social, moral and ethical ideals;

to assist Muslim minorities and communities outside the Member States to preserve

their dignity, cultural and religious identity;

to uphold the objectives and principles of the present Charter, the Charter of theUnited Nations and international law as well as international humanitarian law

while strictly adhering to the principle of non-interference in matters which areessentially within the domestic jurisdiction of any State;

to strive to achieve good governance at the international level and the

democratization of the international relations based on the principles of equalityand mutual respect among States and non-interference in matters which are within

their domestic jurisdiction;


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Have resolved to cooperate in achieving these goals and agreed to the presentamended Charter. .

29

With respect to the intersection of law and religion, the OIC created the Sharia- compliant

Cairo Declaration of Human Rights in Islam (CDHRI).

30

Not intended to compliment, but rather

to supplant the Universal Declaration of Human Rights,31

the CDHRI states with respect to the

equal dignity of all humans, in peacetime and in wartime:

ARTICLE 1: (a) All human beings form one family whose members are united by

their subordination to Allah and descent from Adam. All men are equal in terms ofbasic human dignity and basic obligations and responsibilities, without any

discrimination on the basis of race, colour, language, belief, sex, religion, politicalaffiliation, social status or other considerations. The true religion is the guarantee

for enhancing such dignity along the path to human integrity.

32

29Id. The original Charter of the Organization of the Islamic Conference was concluded Sept. 25,

1969, available athttp://arabian-union.org/reference/oic_charter_text.htm. The 30 original

members include the: Kingdom of Afghanistan, the People's Democratic Republic of Algeria, theState of the United Arab Emirates, the State of Bahrain, the Republic of Chad, the Arab Republic

of Egypt, the Republic of Guinea, the Republic of Indonesia, the Islamic Republic of Iran, theHashemite Kingdom of Jordan, the State of Kuwait, the Republic of Lebanon, the Libyan Arab

Republic, Malaysia, the Republic of Mali, the Islamic Republic of Mauritania, the Kingdom ofMorocco, the Republic of Niger, the Sultanate of Oman, the Islamic Republic of Pakistan, the State

of Qatar, the Kingdom of Saudi Arabia, the Republic of Senegal, the Republic of Sierra Leone, theSomali Republic, the Democratic Republic of Sudan, the Syrian Arab Republic, the Republic of

Tunisia, the Republic of Turkey, and the Yemen Arab Republic. The membership has sinceexpanded to 57 with 5 observer states, and affiliation with 1 Muslim community, 2 Islamic

institutions, and affiliation with 5 international institutions at the time of this articles writing. See,e.g.,About OIC, Presentation, PERMANENT MISSION OF THE ORGANISATION OF THE ISLAMIC

CONFERENCE TO THE UNITEDNATIONS OFFICES IN GENEVA AND VIENNA (2009), http://www.oic-un.org/about_oic.asp.

30World Conference on Human Rights, Geneva, Switz., April 19 May 7, 1993, Cairo

Declaration on Human Rights in Islam, U.N. Doc.A/CONF.157/PC/62/Add.18 (June 9, 1993),

available athttp://www1.umn.edu/humanrts/instree/cairodeclaration.html [hereinafterCairoDeclaration].

31The Organization Of The Islamic Conference And The Universal Declaration Of Human Rights,

UNITEDNATIONS UPDATE, at 53, available athttp://www.wcl.american.edu/hrbrief/16/1un

update.pdf?rd=1Universal Declaration of Human Rights [hereinafter UNITEDNATIONS UPDATE].

32Cairo Declaration,supra note 30.


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While these lofty, and largely admirable principles have been agreed to, the United

Nations Human Rights Council has encountered opposition to the CDHR, and the problems it

may present to universal human rights.33

A conference on "An analysis and Discussion of

Religion and Freedom of Expression at the Human Rights Council" was held at the UN Human

Rights Council on September 17, 2008,34 at which criticism was leveled at the OICs attempt to

validate the crimes that have led to trauma and dysfunctional societies across the Muslim

world.35

The criticism went on to claim that the OIC does not speak for Muslims.36

The

Human Rights Council noted that was the first time the OICs proposal has received such an

outspoken response, especially among Muslim groups, while acknowledging that the OIC, on

the other hand, maintains that the CDHR is a valid declaration of human rights and is still

supported by members of the OIC.37

Human Rights Watch has also leveled criticism at the OIC

regarding a lack of even-handedness in examination and correction of all abuses by state and non-

state actors, such that it has sought to shield member states from criticism, except when it comes to

criticism of Israel.38

33UNITEDNATIONS UPDATE,supra note 31, at 54.

34See, e.g., Tarek Fatah, Founder, Muslim Canadian Congress, Speech at the Intl Humanist and

Ethical Union parallel conference: An analysis and Discussion of Religion and Freedom ofExpression at the Human Rights Council, Sept. 18, 2008, available at

http://www.iheu.org/node/3277.

35

Id.

36Id.; UNITEDNATIONS UPDATE,supra note 31, at 54.

37UNITEDNATIONS UPDATE,supra note 31, at 54.

38Peggy Hicks,How to Put U.N. Rights Council Back on Track, HUMAN RIGHTS WATCH, Nov. 3,

2006, http://www.hrw.org/en/news/2006/11/03/how-put-un-rights-council-back-track.


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IV. TRIBES, TRADITIONS AND TREATIES LOOKING BACKWARD TO SEE FORWARD

REGARDING PEACE AND HUMAN RIGHTS

Without delving deeply into the pre-nineteenth-century histories of most Muslim nations,39

what is crucial to a present-day understanding of Islamic attitudes towards international law and

international agreements stems from transformations which took place during the colonial and

post-colonial eras. In most emerging states, there was a rapid dismantling of the religious-based

legal systems in Muslim nations. In the so-calledDar al-Islam (literally, house/abode of Islam)

four sorts of states have emerged with politico-theological approaches to maintaining or

establishing Islamic law: 1) Semi-secular nations with a domain for the Sharia, but where most of

the laws are derived from the West (e.g., Turkey as the most dramatic case, but also Guyana,

Suriname, and others with sizeable majority or minority Muslim populations); 2) Traditionalist

states (e.g. Saudi Arabia, Afghanistan); 3) Radical Islamizing states (e.g., Iran post-Khomeini,

Sudan), and; 4) Pluralist or Non-Denominational States (e.g., Lebanon, Turkey, Indonesia,

Malaysia, Nigeria and many other African States).40

39 The worlds Muslim nations include the following: Afghanistan; Albania, Algeria; Azerbaijan;

Bahrain; Bangladesh; Benin; Bosnia-Herzegovina; Brunei; Burkina-Faso; Cameroon; Chad;

Comoros; Djibouti; Egypt; Gambia; Guinea; Guinea-Bissau; Guyana; Indonesia; Iran; Iraq; Jordan;Kazakhstan; Kuwait; Kyrgyzstan; Lebanon; Liberia; Malaysia; Maldives; Mali; Mauritania;

Morocco; Mozambique; Niger; Nigeria; Oman; Pakistan; Palestine; Qatar; Saudi Arabia; Senegal;Sierra Leone; Somalia; Sudan; Suriname; Syria; Tajikistan; Tunisia; Turkey; Turkmenistan;

Uganda; United Arab Emirates; Uzbekistan; Western Sahara, and; Yemen. See Islam FAQ IslamAround the World, ABOUT.COM, http://atheism.about.com/library/FAQs/islam/

blfaq_islam_countries.htm (last visited Apr. 24, 2012);see, e.g., CIA WORLD FACTBOOK,https://www.cia.gov/library/ publications/the-world-factbook/index.html; but see, e.g,, Yogendra

K. Malik, & Dhirendra K. Vajpeyi,The Rise of Hindu Militancy: India's Secular Democracy atRisk, 29 ASIAN SURVEY 30825 (Mar. 1985), available athttp://www.jstor.org/openurl?volume=

29&date=1989&spage=308&issn=00044687&issue=3 (noting that the inclusion of Palestine andWestern Sahara for some may constitute some controversy as nations, and for that matter the

omission of the worlds largest democracy, India, which has the second-largest Muslim populationof any nation in the world but is a secular democracy).

40Vogel,supra note 6.


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Whether certain nations choose to abide by international laws or agreements is more often

than not a political determination with little influence on or from the development of Islamic

attitudes towards this legislation. Rather, Islamic attitudes towards international law and

agreements are more likely influenced by the legitimization of certain regimes and the power

structures that are recognized, reinforcedor at the very leastdiscussed. When conflicts arise

between and within secular and religious, or Muslim and non-Muslim factions, perhaps the best

approach with respect to dispute resolution would be this: sometimes you have to talk to people

who really offend you to find commonality and resolve essential differences.41

Nations with a domain for the Sharia have governments that recognize or even protect

freedom of religion for their Muslim citizens and their clerics, but this does not mean that Sharia

dominates or even necessarily controls affairs of state domestically and in the international arena.

In those nations, it is ere unlikely that the Shariaor clerical efforts towards its implementation

will have influence on concluding or abiding by international law and international agreements.

For radical Islamizing states, Islam is more than an ideology; it advocates or agitates for

states to rule solely by the Sharia, and attempts to suppress or outlaw or destroy Islamist

organizations may well lead to an escalation to violence.42

Such states have political spectra

ranging from gradualist to revolutionary adherence to rule under Sharia; the former is

characterized by an approach which may have existed for hundreds of years and the latter by one

which may have appeared virtually overnight!43

41Id.

42 Randal K. James, The Islamist Challenge in the Middle East and North Africa,AIRWARCOLL.

REPORT 18-19 (Apr. 1996), available athttp://www.au.af.mil/au/awc/awcgate/awc/james_rk.pdf

43Vogel,supra note 6.


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In Pluralist or Non-Denominational states like Turkey or Indonesia, Ulama and the

government currently coexist to greater or lesser extents such that the Ulama supports existing

rulers in their current and preexisting obligations to other nations under International law, yet these

rulers still exhort the states and their peoples to follow the Sharia without expecting too much in

implementation within their legal systems.44

Next considered is the notion of what constitutes international law or an international

agreement, and how Muslim nations interpret the same. Western and non-Western nations,

whether or not they have Muslim populations or Islamic legal influences, may have governments

that struggle mightilyand potentially failto construct or reconstruct functioning legal systems

and adhere effectively to international laws and agreements in the wake of revolution, civil war,

unrest, or occupation.45

To this end, we might look to what the majority of Muslim nations (or those with

substantial Muslim populations) have, at a minimum, signed, or, in many cases ratified or acceded

to, with respect to the content and applicability of international law.46

Thirty-one of the worlds

fifty-six Muslim nations (or those with substantial Muslim populations) have, at a minimum,

signed, but in many cases also ratified or acceded to, the 1969 Vienna Convention on the Law of

Treaties (VCLT).47

This is crucial to appreciating Islamic attitudes towards international law and

44Id.

45See, e.g., Collaborative Governance, THE WORLD BANKINST.,

http://www.worldbank.org/wbi/governance/.46

For sources of international law,see, e.g., Rome Statute of the International Criminal Court, July17, 1998, 2187 U.N.T.S. 90, available athttp://untreaty.un.org/cod/icc/statute/romefra.htm.

47 Vienna Convention on Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, available athttp://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. This agreement

entered into force on 27 January 1980.


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international agreements, inasmuch as Islamic signatory nations have publicly and openly

committed to the notion of binding international law via treaty and agreement.48

Part III,

Observance, Application and Interpretation of Treaties in the VCLT, is particularly significant with

respect to observing prior commitments, covenants and obligations. That segment restates at

Article 26 the Latin maxim Pacta sunt servanda: Every treaty in force is binding upon the

parties to it and must be performed by them in good faith.49

The challenges of anticipating whether those we come in contact with (or against whom

nations engaged to contact with force) will abide by international law and international agreements

must particularly arise when dealing with local, tribal, regional or non-state actors. These

individuals, not acting in concert with or on behalf of their governments, may care little or not at

all about their governments commitment to such international treaties and agreements, and their

immediate concerns may be far more pragmatic and less esoteric.50

For nation-to-nation contacts

at the strategic level and for politico-military purposes, it is important to consider a nations

policies toward international law and international agreements (at least at the tactical and

operational levels). This consideration should take into account past and present actions rather

than categories of particular groups and their adherence or non-adherence to international law and

international agreements.51

48See id.

49Id.

50 See, e.g., Major Ben Connable, Presentation at The Citadel: Culture and Insurgency, Mar. 15,

2007, available athttps://www.google.com/search?sourceid=chrome&ie=UTF-8&q=Presentation+at+The+Citadel%3A+Culture+and+Insurgency.

51Id. See also JOINT PUBLN (JP) 1-02, DEPT OF DEF. DICTIONARY OF MILITARY & ASSOC. TERMS(Nov. 8, 2010, as amended through Jan. 15, 2012), available at

http://www.dtic.mil/doctrine/jel/new_pubs/jp1_02.pdf.


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So, whether a nation is failed, failing, at risk or even stable by any estimation,52

how might the U.S., or any other secular or non-Muslim nation, approach systems with Islamic

legal influences to foster stability and cooperation? The answer requires an understanding of the

history and culture of those nations influenced by the U.S.; using what has previously been

considered legitimate by these nations as a guide from which to work. Harvard Law School

Professor Frank Vogel has cited examples in Afghanistan and Iraq for post-intervention/occupation

legal systems where it is fundamental to understand what is of tribal origin and cultural

significance but not Islamic, what is Islamic and incapable of change, and what is, whats on the

books, as theoretical or aspirational aspects, but not enforced or enforceable.

53

Great benefits

come where negotiators find points of agreement to advance interests for security rather than, for

instance, focusing first and foremost on human rights agendas (e.g., inheritances of women under

the Sharia).54

52 See The Failed States Index 2011, FOREIGN POLY, http://www.foreignpolicy.com/failedstates

(last visited Mar. 8, 2012). The Fund for Peace is a research and educational organization that

works to prevent war and alleviate the conditions that cause war. Annual Failed States Indexassessments are based upon four social indicators, two economic indicators, and six political

indicators. Similarly the Ibrahim Index of African Governance measures, amongst other things,Safety and Rule of Law; Participation and Human Rights; Sustainable Economic Opportunity; and

Human Development as proxies for the quality of the processes and outcomes of governance.

See The Ibrahim Index, MOIBRAHIM FOUND., http://www.moibrahimfoundation.org/en/section/the-ibrahim-index (last visited Mar. 8, 2012).

53 Vogel,supra note 6.

54Id. With respect to inheritance, amongst other issues, see, e.g., Toni Johnson,Backgrounder:Islam: Governing Under Sharia, COUNCIL ON FOREIGN RELATIONS (Nov. 10, 2010),

http://www.cfr.org/publication/8034/islam.html.


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Some time ago, Representative Thomas P. Tip ONeill said, all politics is local.55

So

too are the notions of Islamic attitudes towards international law and international agreements. To

return to one of the previously surveyed legal systems and nations, that of Afghanistan, there is

now a fundamental reconciliation of religion and culture in the Afghan constitutional framework

between Sharia, customary law of court-decided laws, and positive law of civil law.56 The return

to a democratization of laws in post-2001 Afghanistan has been furthered by the advancement of

stability and security throughout the nation, and by the recognition that all segments of society

must be actively involved in supporting local and national Afghan institutions.57 Individuals with a

background in non-Islamic value systems, hoping to promote the appreciation and support of

international law and international agreements in any nation with a Muslim population or legal or

political systems influenced or guided by Sharia, must become a student of Muslim and local

culture and Islamic law. The temptation to advance culturally-laden and uniquely nationalistic

values or beliefs must be avoided, and an attitude which finds common ground supportable under

both national and international law should be fostered.58

55See, e.g., ALL POLITICS IS LOCAL, available athttp://www.riverdeep.net/current/2000/10

/103000_politic.jhtml. It is commonly accepted that Rep. ONeill meant that local problems andconcerns shape the politics and policies implemented and advocated by Congress.

56See, e.g., Nadjma Yassari & Mohammad Hamid Saboory, Sharia and National Law in

Afghanistan, 6 Jura Gentium 1 (2010), http://www.juragentium.org/topics/islam/en/yassari.htm,

originally published in Jan Michiel Otto (ed.), SHARIA INCORPORATED: A COMPARATIVEOVERVIEW OF THE LEGAL SYSTEMS OF TWELVE MUSLIM COUNTRIES IN PAST AND PRESENT 273-

318 (2010).

57Amiryar A. Quadir, Presentation to USACAPOC/PK301 at the 3d Rule of Law Workshop: The

Islamic Legal Tradition (Mar. 2007).

58Id.


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V. THE TWITTERREVOLUTIONS59

SOCIAL MEDIA AND (RE)ESTABLISHING PEACE,HUMAN RIGHTS, AND POLITICAL LEGITIMACY IN ISLAMIC STATES

One of my past commentaries chronicled how, since January 2011, U.S. allies and

adversaries alike in North Africa and the Middle East have experienced public unrest challenging

the illegitimacy of unelected and elected leaders alike and their role in making and enforcing the

laws that rule their nations.60

That commentary noted how, in the fall of 2010, the once-

preternaturally prescient Malcolm Gladwell cast doubt on the potential contribution of social

networking to social movements and social change.61

It further noted Gladwells conclusion in

his October 4, 2010 New Yorker article, Small Change: Why the Revolution Will not be

Tweeted," that social networking websites with weak ties and unstructured equality were the

opposite of the U.S. civil rights movements strength to change powerful social forces through

strong ties among participants and hierarchical organizations.62

Days later, the newly-prescient Jeremy Brecher and Brendan Smith countered Gladwell

with the October 8, 2011 Huffington Post piece Is Social Networking Useless for Social

Change?63

Considering Malcolm Gladwell out of touch with true changes in political

59Kevin Govern, The Twitter Revolutions: Social Media in the Arab Spring, JURIST - Forum,

Oct. 22, 2011, http://jurist.org/forum/2011/10/kevin-govern-twitter-revolutions.php.

60Id.;see also Kevin Govern,Beyond Peer Pressure to Political Revolution Tunisias Jasmine

Revolution and the Use of Social Networking to (Re)establish Political Legitimacy, NAPLES DAILY

NEWS, Feb. 27, 2011, http://www.naplesnews.com/news/2011/feb/27/guest-commentary-beyond-peer-pressure-political-re.

61Govern, supra, note 59.

62Id. (citingMalcolm Gladwell, Small Change Why The Revolution Will Not Be Tweeted, THE

NEW YORKER, Oct. 4, 2010,http://www.newyorker.com/reporting/2010/10/04/101004fa_fact_gladwell).

63Id. (citingBrendan Smith & Jeremy Brecher,Is Social Networking Useless for Social Change?,

THE HUFFINGTON POST, Oct. 7, 2010, http://www.huffingtonpost.com/brendan-smith/social-

networking-is-malc_b_753274.html).


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organizing and communication, Brecher and Smith, with some significant understatement (and

slight misstatement),

cited to a once-influential study published in 1847 [that] observed that workers

were beginning to form combinations" via the use of electronic (telegraph) andprint (newspaper) means of communication. In a profound understatement, theauthors commented that [m]aybe the role of telegraph and newspapers a century

and two-thirds ago is irrelevant to the role of social networking media today. Butmaybe not.

The commentary goes on to note that in fact that study was the 1848 Manifesto of the

Communist Party by Karl Marx and Friedrich Engels, one of the most significantly observed

and violently opposed documents in human history!64

Marx and Engels observed that workers were beginning to form "combinations

and that this union [was] helped on by the improved means of communication thatare created by Modern Industry, and that place the workers of different localities in

contact with one another. It was just this contact that was needed to centralize thenumerous local struggles, all of the same character, into one national struggle

between classes.65

In writing about those connections between history and current events, I attempted to

raise some provocative questions; namely: are improved means of communications now

creating a contact . . . needed to centralize the numerous local struggles . . . into one national

struggle between governments and their people?66

Put another way, might modern-day

Internet revolutionaries in Islamic nations, and elsewhere, be either unconsciously or consciously

following those tenets set forth in the Manifesto?67

64Id. (citingKarl Marx & Friedrich Engels, MANIFESTO OF THE COMMUNIST PARTY, SELECTED

WORKS, VOL. ONE 98-137 (1969), available athttp://www.marxists.org/archive/marx/works/1848/communist-manifesto/).

65Id.

66Govern, supra, note 59.

67Id.


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The commentary also points out the following irony:

What may prove in time to be one of Americas most infamous security breachesmay also be looked upon as the impetus for some recently emergent Internet-

based movements for freedom of speech and civil liberties. Specifically,

Wikileaks [Internet website] founder Julian Assange told reporters . . . leaked U.S.diplomatic cables in December 2010 showed former Tunisian president Ben Alito be corrupt and would not have U.S. support if revolution came to his nation.

68

As events unfolded, [t]hat news became known to thousands of technologically savvy young

Tunisians who were weary of the persistent political illegitimacy of the Ben Ali government,

and what mobilized them to act to bring the Ali government down.69

Months after those

commentaries, the world has watched recent history repeating itself in Egypt, with thirty-year

strongman Hosni Mubarak having stepped down, appearing supine (literally) from ill-health

before an Egyptian tribunal for a variety of crimes against his people.70

The 42-year dictator of

Libya, Muammar Gaddafi, was also captured and then killed after his convoy was attacked by

NATO planes, including aircraft from the US and France.71

Likely not the last to depart, ousted

Yemeni leader Saleh fled to Ethiopia in the Winter of 2012.72

Social networking-enabled challenges to authorities were ongoing at the time of this

articles writing in other Arab states, and also spurred on a resurgence of Persian resistance to

68The U.S. Embassy Cables:The Documents, GUARDIAN, Dec. 7, 2010,

http://www.guardian.co.uk/world/us-embassy-cables-documents/217138.

69Govern,supra note 59.

70Edmund Blair,Egypt's Mubarak Faces Next Trial Hearing on December 28,REUTERS, Oct. 30,

2011, http://www.reuters.com/article/2011/10/30/us-egypt-mubarak-idUSTRE79T0ZB20111030.

71Curtis Doebbler, The Rule of Law and the Extrajudicial Killing of Muammar Gaddafi, JURIST,

Oct. 24, 2011, http://jurist.org/forum/2011/10/curtis-doebbler-gaddafi-killing.php.

72Ousted Yemeni leader, supra note 4.


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the theocratic regime in Iran.73

The commentary notes how [t]his paradigm of progress

challenges what I call antiquated agents of change, those nineteenth and twentieth century

notions ways in which peoples and nations might reestablish political legitimacy around the

globe.74

Nineteenth Century German political scientist . . . von Gneist considered the free

legal profession as an Archimedean lever for accomplishing the liberal project of personal

rights and the rule of law; that profession may still be significant, but interpersonal

communications have become an increasingly important lever to move ideas and regimes.75

All those who dream and talk of freedom (by all means direct and indirect) and are striving

to advance human rights and peace in North Africa, the Middle East, and throughout the Islamic

world and beyond, should (re-)read T.E. Lawrence to find that past is prologue:

All men dream: but not equally. Those who dream by night in the dusty recesses oftheir minds wake in the day to find that it was vanity: but the dreamers of the day

are dangerous men, for they may act their dreams with open eyes, to make itpossible.

76

CONCLUSION

This article has been the briefest of analysis of historical, present-day, and future

challenges to defining and assessing both the cultural and legal influences and impediments

present to cultivating peace and human rights in Islamic states. These exist as a simultaneous

73Id.

74Id.

75

Govern, supra, note 59 (citingRudolf von Gneist, DERRECHTSTAAT484 (1872)).76 T. E. Lawrence, Suppressed Introductory Chapter, SEVEN PILLARS OF WISDOM23 (first

published 1939), available athttp://www.telawrence.net/telawrencenet/works/spw/sp_00_000.htm(In his 1926 subscribers' edition ofSeven Pillars of Wisdom, Lawrence placed dates in page

headings rather than the body of the text, and omitted this Introductory Chapter purportedly at therecommendation of George Bernard Shaw. Modern reprints of Seven Pillars of Wisdom include

this now-famous Chapter.).


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duality, rather than as an either/or proposition. My hopes are that the readership ofImpunity

Watch will use this concise collection, analysis, and commentary as they rethink past policies

and relations between and among peoples of the Muslim and non-Muslim world, and to plan for

and promote healthy cooperation and productive competition rather than conflict.

In closing this study, let me offer a quote from the present UN Secretary-General at his

Oath of Office Ceremony on advancing rule of law in every nation and culture, Islamic or

otherwise, within the potentialities and considering the limits upon the state: Development,

security and human rights must go hand in hand; and that there can be no security without

development and no development without security and neither can be sustained in the longer term

without being rooted in the rule of law and respect for human rights.77

77Joseph Legwalia, Special Adviser to the Secretary-General on Africa, Secretary-General's

Remarks at General Assembly Tribute to Secretary-General and Oath of Office Ceremony ofSecretary-General Designate Ban ki-Moon, Dec. 14 2006,

http://www.un.org/apps/sg/sgstats.asp?nid=2365.

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