soc/doclib/20070324_bolton.pdf> accessed on 1 August 2017. that attribution is only ‘a necessary condition’ for the applicability of Article 51 of the UN Classical Muslim jurists, who interpreted fitnah as unbelief, formulated the Islamic in Islam,92 any rebellion which has the potential of causing fitna within the
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ii THE LEGITIMACY AND COMPATIBILITY OF USE OF FORCE ( JUS AD BELLUM ) IN PUBLIC INTERNATIONAL LAW AND ISLAMIC INTERNATIONAL LAW MD ZAKARIA SABUJ A thesis submitted in fulfilment of the requirements of the University of Northumbria at Newcastle for the degree of Doctor of Philosophy Research undertaken in the Faculty of Business and Law February 2018
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iii Abstract Despite the general prohibition of using inter – state force imposed by Article 2(4) of the United Nations Charter , force has been used under the auspices of self – defence, collective security and humanitarian crises. Such use of force has brought challenges to i nternational law regarding its existence and efficacy. Although no state has denied the validity of such prohibition , many attempts have been made to legitimise use of such force on different grounds , namely exception, expansion and explanation. Unl ike Public i nternational law, Islamic l aw of Nations ( Siyar ) does not provide for a general prohibition of use of force but recognises circumstances in which such force can be legitimately used. The compatibility of these conflicting provisions of legitimate inter – state use of force offered by these two systems are significant for the prevention of aggressive use of force. The assessment of legitimacy of these conflicting provisions shall reveal where the legitimacy lies – is it in Isl amic international law or Public i nternational law or both or none of them? The results of the legitimacy assessment demonstrate that these two systems could sit in plural – deficits. However, the legitima cy and compatibility of Public international law and Islamic international l aw significantly depend on the development of an underlying pluralistic legal framewor k of i nternational law with a healthy dose of legitimacy. Therefore, a comparative analysis of these two systems reveals the extent to which a complementary legal framework could be compatible and legitimate. The comparative analysis of the legitimacy of use of force in Public international law and Islamic international law includes examination of classical and contemporary sources to identify the existing legitimacy deficits of the two systems. The analysis follow s on an inquiry into the the compatibility of th ese potentially two conflicting legal systems to complement each other . In this regard, the resear ch expands on another inquiry into how the existing legitimacy deficits of the two systems could be overcome. Generally, this thesis seek s to address three fu ndamental and interrelated research questions, namely – (1) To what extent use of force in Public international law an d Islamic international law is l egitimate? (2) How the legitimacy deficits of Public international law and Islamic international law could be ove rcome? (3) Whether use of force in Public international law and Islamic international law can be compatible in modern world to secure higher degree of legitimacy?
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iv Table of Contents Abstract .. .. .. .. iii Table of Cases .. .. .. .. .. ix Acknowledgments .. .. .. .. x Declaration .. .. .. .. . xi Chapter 1 .. .. .. .. .. 1 Introduction .. .. .. .. 1 1.1 Background .. .. .. .. 1 1.2 Relevance of the Study .. .. .. .. 2 .. .. .. .. 4 1.4 Architecture of the study .. .. .. .. 6 1.5 Methodological approach .. .. .. . 7 1. 6 Case law .. .. .. .. 10 1.7 Contribution to existing literature .. .. 10 1.8 Ambit of the study .. .. .. . 12 Chapter 2 .. .. .. .. 13 The Legal Status of International law on the use of force .. .. . 13 2.1 International law on the use of force in the United Nations Charter .. 14 2.1.1 The General Prohibition of use of force under Article 2(4) of the UN Charter .. 14 2.1.2 Use of force in self – defence under Article 51 of the UN Charter .. 15 2.1.2.1 Use of force by non – state actors .. .. .. 17 2.1.2.1.1 State Responsibility for use of force by non – state actors .. .. 18 2.1.3 Use of force in the Gap between Articles 2(4) and 51 of the UN Charter 24 2.1.4 Use of force by the Security Council under Chapter VII of the UN Charter . 26 2.1.4.1 Humanitarian Inter vention .. .. . 26 2.1.4.2 Responsibility to Protect .. .. .. 27 2.1.4.3 Intervention by Invitation .. .. .. . 29 2.2 Origins of the current international law system in the context of colonialism .. 30 2.2.1 Nineteenth Century Colonialism a nd its role in shaping international law . 31 2.2.2 Decolonisation and the creation of international institutions .. 34 2.3 The Challenges posed on the Charter framework of international law on the Use of Force .. 37 . 38 39 2.3.2.1 Cultural relativism and its role in developing a pluralistic framework of international law .. .. .. .. . 40 2.3.2.1.1 Cultural diversity and international law on the use of force .. 41
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v 2.3.2.1.2 Cultural relativism and the advertence of Islamic international law on the use of force .. .. .. .. . 42 2.3.3 Challenges posed by the extra – Charter practices of powerful states .. .. 46 2.3.4 The Response of the Restrictivists .. .. .. 48 2.3.4.1 Minor adaptati on of the Charter framework to facilitate the challenges posed by Realists and Expansionists .. .. .. .. 49 2.3.5 Failure of the Collective Security System .. .. . 51 2.4 The Effectiveness of the Charter system in regulating use of force in modern world 52 2.4.1 Just war and international law on the use of force .. .. 56 2.5 Use of force in customary international law .. .. 59 Conclusion .. .. .. .. 61 Chapter 3 .. .. .. .. 63 Use of Force in Islamic International Law .. .. .. 63 3.1 What is Islamic international law? .. .. 64 .. .. . 66 3.2 Use of Force in Islamic international law .. .. .. 69 3.2.1 Formation of Islamic international law on the use of force .. . 72 3.2.2 Development of Islamic international law on the use of force .. .. 73 3.2.2.1 Humanitarian int ervention and Intervention by invitation in Islamic international law .. 75 3.2.2.2 The Role of Treaties in Islamic international la w on the use of force 78 3.2.3 Fundamental Principles of Islamic international law on the use of force 79 3.2.3.1 Who can authorise use of force in Islamic international law? .. . 82 3.3 Political influence in the shaping of Islamic international law .. . 88 3.4 Jihad: M eaning and Significance .. .. .. . 90 3.4.1 Meaning of Jihad .. .. .. 92 .. .. .. .. 95 3.4.2 Transformation of the meaning of Jihad .. .. .. 100 3.4.2.1 Invocation of Jihad by State actors .. .. .. 101 3.4.2.2. Invocation of Jihad by Non – state actors .. .. .. 103 Conclusion .. .. .. .. . 107 Chapter 4 .. .. .. .. . 110 The Islamic law of Rebellion and its potential to complement Public International Law on the Use of Force .. .. .. .. . 110 4.1 Islamic law of Rebellion in relation to Use of Force .. .. .. 112 4.2 Historical overview of rebel lion in Islam .. .. . 116 4.2.1 Development of the Islamic law of Rebellion .. .. . 118
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vii 5.3.3 Legitimacy of Islamic law of Rebellion .. .. 194 5.4 The process of complementation: a proposal for overcoming the legitimacy deficits of Public international Law and Islamic international Law .. .. 197 5.4.1 The Power of Legal Pluralism in the complementation process .. .. 198 5.4.1.1 The Extent of Le gal Pluralism in the complementation process .. .. 201 – al – – al – and their effect in developing a pluralistic international law on the use of force .. . 202 5.5 Overcoming the barrier of Public inter national law: achieving a higher degree of legitimacy on the use of force .. .. .. . 207 Conclusion .. .. .. .. . 209 Chapter 6 .. .. .. .. . 2 12 Compatibility of Use of Fo rce in Public International Law and Islamic International Law .. 212 6.1 Legitimacy Revisited .. .. .. 214 6.2 The effect of incompatibility .. .. .. .. 215 6.2.1 Why compatibility of Public international law and Islamic international law is necessary? .. .. .. .. .. 218 6.2.2 The promotion of p eace and justice: a dilemma in Public international law on the use of force .. .. .. .. 221 6.2.3 Sovereignty revisited: perception of soverei gnty and its limit .. . 225 6.2.3.1 How sovereign is sovereignty?: A comparative analysis of the sovereign power distributions in a divided world .. .. .. .. 230 6.3 The compatible and incompatible provisions of use of force in Public international law and Islamic internati onal law .. .. .. .. 233 6.3.1 The compatible provisions of use of force .. .. 234 6.3.2 The incompatible provisions of use of force in Public international law and Islamic international law .. .. .. . 234 6.3.3 The compatible versus incompatible: a comparative analysis .. . 235 6.3.3.1 Use of force in self – defence .. .. . 235 6.3.3.2 Double Standards of Islamic international law in the decision – making process 236 6.3.3.3 State responsibility for use of force by non – state actors .. . 236 6.3.3.4 Intervention by invitation .. .. . 236 6.3.3.5 Protections of Nationals Abroa d .. .. 237 6.3.3.6 Judicial scrutiny of use of force .. .. .. 238 6.4 Crime of Aggression and its compatibility with Islamic international law on the use of force 238 6.4.1 The definition of aggression in the Charter system .. 238 6.4.2 The definition of aggression in the ICC .. .. .. 239 6.4.2.1 Permissible acts of aggression .. .. 243
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viii 6.4.3 The compatibility of crime of aggression with Islamic international law on the use of force .. .. .. .. .. 245 6.5 The role of treaties in the complementation process .. 247 Conclusion .. .. .. .. . 250 Chapter 7 .. .. .. .. . 254 Conclusion of the Thesis .. .. .. 254 BIBLIOGRAPHY .. .. .. .. . 259
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ix Table of Cases Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Serbia and Montenegro ) ICJ Rep 2007 Application of the Obligation to Arbitrate under Section 21 of the UN Headquarters Agreement [1988] ICJ R ep 34, para 57 Armed Activities on the Territory of the Congo ( DRC v. Uganda ) Judgment, ICJ Rep 2005 Caroline Case , UN Docs. S/PV (1981) 2285 – 88 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits) ( Nicaragua v. United States ) [1986] ICJ Rep.14, 99 Case Concerning the Gabcikovo – Nagymaros Project ( Hungary /Slovaki ), ICJ Rep 1997 Corfu Channel ( UK v. Albania ) Judgment of 9 Apr 1949, ICJ Rep 1949 Fisheries case ( Spain v. Canada ) ICJ Rep 1998, 466 Guyana v. Suriname , Award of the Arbitral Tribunal, 17 Sept 2007 Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory , 9 July 2004, ICJ, Advisory Opinion, G eneral List No 131 North Sea Continental Shelf (Federal Republic of Germany/Denmark) ICJ Rep . 1969 Oil Platform (Iran v. US) Judgment, ICJ Rep 2003 Prosecutor v. Dusko Tadic , Judgment in Appeal, ICTY, Case IT – 94 – 1 – A (15 July 199) The M/V Saiga (Saint Vincent and the Grenadines v. Guinea) Judgment of 4 Dec 1997, ITLOS
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x Acknowledgments I would first like to thank Northumbria University Law School for providing the opportunity for this research. I would like to express m y special thanks to my principal supervisor, Professor Mohamed Badar. The completion of this thesis would not have bee and support over the last 3 years and for that I am extremely grateful. Special thank s also to my second supervisor Dr Lee McConnell for his advice and assistance throughout t he research . I would also like to thank the staff of Northumbria Law School – both past and present – for their advice at various points of the study. Thanks to Dr Conall Mallory for his invaluable feedback on Chapter 2 of the thesis and Dr Sylvanus Barnabas for his suppor t in understanding legal pluralism from global perspective . Special thanks also to Professor Abu Mohammad (University of Development Alternative , Bangladesh ) for his advice on the comparative aspect s of law during the early days of my legal studies . Last, but not least, I would like to thank my family and especially my wife Hosneara and daughter Jemina for their love and support over the years.
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